/raid1/www/Hosts/bankrupt/CAR_Public/210416.mbx
C L A S S A C T I O N R E P O R T E R
Friday, April 16, 2021, Vol. 23, No. 71
Headlines
ACUITY BRANDS: Continues to Defend Georgia Securities Class Suit
ADOMANI INC: Mollik Class Suit Ongoing in California
ADVENT TECHNOLOGIES: Notice of Dismissal Filed in Frey Suit
AGEAGLE AERIAL: Faces Lopez Class Action
AGEAGLE AERIAL: Madrid Class Suit Transferred to Judge Snyder
ANGLOGOLD ASHANTI: Suits Against AGAC in Columbia Ongoing
ANNIE'S HOMEGROWN: Mac & Cheese Contains Phthalates, Angelos Says
ASHLEY DISTRIBUTION: Schiller Suit Remanded to San Bernardino Court
BA CREDIT: Appeal in Damage Class Settlement Still Pending
BIG APPLE: Fails to Pay Proper Wages to Laborers, Garcia Suit Says
BIT DIGITAL: Faces Bitcoin Related Securities Class Suits
BLACKBERRY LTD: Appeals Order Granting Plaintiffs' Class Cert. Bid
BLACKBERRY LTD: Discovery Ongoing in Ontario Class Suit
BLACKBERRY LTD: Discovery Ongoing in Ontario Employment Class Suit
BLINK CHARGING: Filing of Bid to Dismiss Bush Suit Due April 20
BLUE RIDGE: Suit vs. Virginia Community Bankshares Ongoing
BP EXPLORATION: Wins Bid for Summary Judgment in Scott BELO Suit
BRF SA: Court Approves Settlement in Birmingham Retirement Suit
BUMBLE BEE: Order Certifying 3 Classes in Antitrust Suit Vacated
CALIFORNIA: Dismissal of Ackers Suit v. EDD With Prejudice Endorsed
CLOUDERA INC: Bid to Dismiss Consolidated Securities Suit Pending
CLOUDERA INC: Case Management Conference Set for June 9
CLOVER HEALTH: Facing Several Putative Class Suits in Tennessee
CO-DIAGNOSTICS INC: Stock Price Increase Related Suits Underway
COLUMBIA COLLEGE: First Amended Buschauer Suit Tossed W/o Prejudice
COMCAST CABLE: 11th Cir. Reverses Arbitration Denial in Hearn Suit
D WG FM INC: Fails to Pay Proper Wages, Dalton Suit Alleges
DELL TECH: Discovery Ongoing in Class V Transaction Related Suit
DELL TECH: Facing Pivotal Software Acquisition Related Suit
EVMO INC: Bid to Stay Vanbecelaere Securities Class Suit Pending
EVMO INC: Bid to Stay YayYo Securities Suit Pending
EVOLUS INC: Appointment of Lead Plaintiff in Jeuveau Suit Pending
F-STAR THERAPEUTICS: Settlement Agreement Entered in Franchi Suit
FAT BRANDS: Rojany Files Request for Dismissal of Class Suit
FENNEC PHARMA: Chapman Putative Class Suit Underway
FORTRESS BIOTECH: Cushman Putative Securities Class Suit Underway
FUBOTV INC: Facing Said-Ibrahim and Lee Class Actions
GENIUS BRANDS: Bid to Dismiss Consolidated Securities Suit Pending
GENTING NEW YORK: Roberts Appeals Ruling in Labor Suit to 2nd Cir.
GIGCAPITAL3 INC: Continues to Defend Shingote Putative Class Suit
GIGCAPITAL3 INC: Ryan Purported Class Action Underway
GOL INTELLIGENT: Class Action Over Misleading Disclosure Underway
GRANITE CONSTRUCTION: Bid to Nix Layne Merger Related Suit Pending
GRANITE CONSTRUCTION: Plaintiff Bid for Class Certification Granted
HEALTHEQUITY INC: Pact Entered in Putative Class Suit vs. WageWorks
HOME DEPOT: Denial of Dismissal/Stay Bid in Jackson Suit Affirmed
IDEANOMICS INC: Continues to Defend Rudani Putative Class Suit
IDEANOMICS INC: Putative Securities Class Suit Underway
INHIBITOR THERAPEUTICS: Sears Class Action Underway
INTELLIPHARMACEUTICS: June 25 Romita Settlement Approval Hearing
JAGUAR HEALTH: Final Settlement Approval Hearing Set for May 18
KANDI TECHNOLOGIES: Bid to Dismiss NY Putative Class Suit Pending
KANDI TECHNOLOGIES: NY Putative Securities Class Suit Underway
KIRKLAND'S INC: Discovery Ongoing in Miles Putative Class Suit
KIRKLAND'S INC: Petition for Allowance of Appeal in Gennock Pending
LEDGER SAS: Faces Chu Suit in N.D. Cal. Over Alleged Data Breach
LEESBURG, AL: N.D. Alabama Narrows Claims in Sutton Class Suit
LIZHI INC: Faces ADS Related Putative Class Suits
LOANDEPOT INC: Defends Two TCPA Related Putative Class Suits
LORDSTOWN MOTORS: Facing Rico and Palumbo Putative Class Suits
LOUISIANA HEALTH: Bid to Strike Denial in Opelousas Suit Affirmed
MDL 2452: Adams Appeals Ruling in Liability Suit to 9th Cir.
MILLENDO THERAPEUTICS: Bid for Partial Lifting of Stay Pending
NCINO INC: Faces Putative Class Action in North Carolina
NEW YORK LIFE: Order Certifying Two Classes in Gold Suit Affirmed
NOVA LIFESTYLE: April 24 Final Pretrial Conference in Barney Action
OH MY GREEN: Accord on Prelim Approval of Kastler Settlement Okayed
OLAM SPICES: Prelim. Approval Hearing of Beltran Deal on April 28
OSMOTICA PHARMA: Settlement Reached in Consolidated NJ Suit
PARKING REIT: Bid to Dismiss SIPDA Class Action Tossed
PARKING REIT: Magowski and Barene Lawsuits Underway
PARTNER COMMS: Class Status Bid in Suit vs. 012 Smile Granted
PARTNER COMMS: Customers Class Action vs. 012 Smile Underway
PARTNER COMMS: Data Speed-Related Suit Still Ongoing
PARTNER COMMS: Facing Advertisement Messages Related Suit
PARTNER COMMS: Withdrawal Settlement in Class Suit Approved
PAYSIGN INC: Bid to Nix Consolidated Securities Class Suit Pending
PDL BIOPHARMA: Continues to Defend City of Providence Suit
PETROBRAS: Continues to Defend Class Action in Netherlands
PLBY GROUP: Facing Scott Putative Class Suit in Los Angeles
POLARITYTE INC: Court Junks Consolidated Securities Class Suit
PORCH GROUP: Former Employee Sues Over Unpaid Overtime
POWER SOLUTIONS: Treadwell Class Action Remains Stayed
PROTECTIVE LIFE: Still Defends Advance Trust Class Suit in Alabama
QUTOUTIAO INC: Bid to Nix Putative Securities Class Suit Pending
READING INTERNATIONAL: Still Defends Brown & Wagner Class Lawsuits
SCHLUMBERGER LIFT: Certification of Classes in Garcia Suit Endorsed
SIGNIFY HEALTH: Settlement Reached in Gharavi Class Suit
SPARK NETWORKS: Cyber Security Related Suit Underway
SPLUNK INC: Lead Plaintiff and Counsel Appointed in Class Suit
SPRUCE 1209: New York Court Denies Bid to Dismiss Chernett Suit
STANDARD AVB: Agreement to Pay Pochinsky Counsel Reached
STERLING BANCORP: Agreement in Principle Reached in Securities Suit
STEVE PIPER: Fails to Pay Laborers' Overtime Pay, Galindo Claims
STONEMOR INC: Bid to Dismiss Fried Putative Class Suit Pending
TENARIS SA: Court Narrows Claims in Putative Class Suit
TERNIUM SA: New York Putative Class Suit Closed
TERRA TECH: Stanley Putative Nationwide Class Suit Underway
UNIT CORP: Deal Reached to Settle Chieftain Royalty Class Suit
UNIT CORP: Settlement Deal Between Subsidiary & Cockerell Reached
VENUS CONCEPT: IPO-Related Litigation Underway
VERINT SYSTEMS: Bid for Leave to Appeal in Suit vs. Unit Pending
WALGREEN CO: E.D. California Stays Caves Class Suit for 90 Days
WALLGREENS BOOTS: Rite Aid Shareholders Securities Suit Underway
WW INTERNATIONAL: Bid to Toss Membership Fees Related Suit Pending
XL FLEET: Faces Suh and Kumar Putative Class Suits
XPRESSPA GROUP: Collins Class Action Settled
ZUORA INC: Continues to Defend Consolidated IPO Related Class Suit
ZUORA INC: Discovery Ongoing in California Putative Class Suit
Asbestos Litigation
ASBESTOS UPDATE: Avon Products Has 164 Pending cases as of Dec. 31
ASBESTOS UPDATE: CarParts.com's Subsidiaries Faces Claims
ASBESTOS UPDATE: Ceco's Subsidiary Defends 200 Cases at Dec. 31
ASBESTOS UPDATE: Circor's Subsidiaries Still Faces Claims
ASBESTOS UPDATE: Genesis Healthcare Has $6.6MM ARO Liability
ASBESTOS UPDATE: Global Indemnity Had $15.8MM Asbestos Reserves
ASBESTOS UPDATE: GMS Inc. Defends 36 PI Suits as of Jan. 31
ASBESTOS UPDATE: Graybar Electric Defends 3,424 Individual Cases
ASBESTOS UPDATE: Hexion Inc. Linked in Various Legal Proceedings
ASBESTOS UPDATE: Intricon Corp. Faces Alleged Exposure Claims
ASBESTOS UPDATE: Mallinckrodt Faces 11,800 Suits as of Dec. 25
ASBESTOS UPDATE: Metropolitan Life Defends Several PI Claims
ASBESTOS UPDATE: Natura & Co's Subsidiary Had 164 Pending Cases
ASBESTOS UPDATE: Navistar International Faces Exposure Claims
ASBESTOS UPDATE: NL Industries Defends PI Lawsuits as of Dec. 31
ASBESTOS UPDATE: Park Ohio Defends 118 PI Cases as of Dec. 31
ASBESTOS UPDATE: State Auto Has $1.9MM Reserves as of Dec. 31
*********
ACUITY BRANDS: Continues to Defend Georgia Securities Class Suit
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Acuity Brands, Inc. said in its Form 10-Q Report filed with the
Securities and Exchange Commission on March 31, 2021, for the
quarterly period ended February 28, 2021, that the company
continues to defend a class action suit entitled, In re Acuity
Brands, Inc. Securities Litigation, Civil Action No.
1:18-cv-02140-MHC (N.D. Ga.).
On January 3, 2018, a shareholder filed a class action complaint in
the United States District Court for the District of Delaware
against the company and certain of its officers on behalf of all
persons who purchased or otherwise acquired the company's stock
between June 29, 2016 and April 3, 2017.
On February 20, 2018, a different shareholder filed a second class
action complaint in the same venue against the same parties on
behalf of all persons who purchased or otherwise acquired the
company's stock between October 15, 2015 and April 3, 2017.
The cases were transferred on April 30, 2018, to the United States
District Court for the Northern District of Georgia and
subsequently were consolidated as In re Acuity Brands, Inc.
Securities Litigation, Civil Action No. 1:18-cv-02140-MHC (N.D.
Ga.).
On October 5, 2018, the court-appointed lead plaintiff filed a
consolidated amended class action complaint, which supersedes the
initial complaints.
The Consolidated Complaint is brought on behalf of all persons who
purchased the company's common stock between October 7, 2015 and
April 3, 2017 and alleges that the company and certain of its
current and former officers/executives violated the federal
securities laws by making false or misleading statements and/or
omitting to disclose material adverse facts that (i) concealed
known trends negatively impacting sales of our products and (ii)
overstated the company's ability to achieve profitable sales
growth.
The plaintiffs seek unspecified monetary damages, costs, and
attorneys' fees.
The company dispute the allegations in the complaints and intend to
vigorously defend against the claims.
The company filed a motion to dismiss the Consolidated Complaint.
On August 12, 2019, the court entered an order granting the
company's motion to dismiss in part and dismissing all claims based
on 42 of the 47 statements challenged in the Consolidated Complaint
but also denying the motion in part and allowing claims based on
five challenged statements to proceed to discovery.
The Eleventh Circuit Court of Appeals has granted the Company
permission to file an interlocutory appeal of the District Court's
class certification order.
Acuity said, "Estimating an amount or range of possible losses
resulting from litigation proceedings is inherently difficult,
particularly where the matters involve indeterminate claims for
monetary damages and are in the stages of the proceedings where key
factual and legal issues have not been resolved. For these reasons,
we are currently unable to predict the ultimate timing or outcome
of or reasonably estimate the possible losses or a range of
possible losses resulting from the matters described above. We are
insured, in excess of a self-retention, for Directors and Officers
liability."
No further updates were provided in the Company's SEC report.
Acuity Brands, Inc. provides lighting and building management
solutions and services for commercial, institutional, industrial,
infrastructure, and residential applications in North America and
internationally. Acuity Brands, Inc. was founded in 2001 and is
headquartered in Atlanta, Georgia.
ADOMANI INC: Mollik Class Suit Ongoing in California
----------------------------------------------------
ADOMANI, Inc. said in its Form 10-K report filed with the U.S.
Securities and Exchange Commission on March 31, 2021, for the
fiscal year ended December 31, 2020, that the company continues to
defend a class action suit entitled, M.D. Ariful Mollik v. ADOMANI,
Inc. et al., Case No. RIC 1817493.
On August 23, 2018, the lawsuit was filed in the Superior Court of
the State of California for the County of Riverside against the
company, certain of its executive officers, Mr. Edward R. Monfort,
and the two underwriters of the company's offering of common stock
under Regulation A in June 2017.
This complaint alleges that documents related to our offering of
common stock under Regulation A in June 2017 contained materially
false and misleading statements and that all defendants violated
Section 12(a)(2) of the Securities Act, and that the company and
the individual defendants violated Section 15 of the Securities
Act, in connection therewith.
The plaintiff seeks on behalf of himself and all class members: (i)
certification of a class under California substantive law and
procedure; (ii) compensatory damages and interest in an amount to
be proven at trial; (iii) reasonable costs and expenses incurred in
this action, including counsel fees and expert fees; (iv) awarding
of rescission or rescissionary damages; and (v) equitable relief at
the discretion of the Court.
Plaintiff's counsel has subsequently filed a first amended
complaint, a second amended complaint, a third amended complaint,
and a fourth amended complaint.
Plaintiff Mollik was replaced by putative class representatives
Alan K. Brooks and Electric Drivetrains, LLC. Alan K. Brooks was
subsequently dropped as a putative class representative.
On October 27, 2020, the company answered the fourth amended
complaint, generally denying the allegations and asserting
affirmative defenses.
On November 5, 2019, Network 1 and Boustead Securities filed a
cross-complaint against the Company seeking indemnification under
the terms of the underwriting agreement the Company and the
Underwriters entered for the Company's initial public offering.
On December 10, 2019, the Company filed its answer to the
Underwriters' cross-complaint, generally denying the allegations
and asserting affirmative defenses. Also on this date, the Company
filed a cross-complaint against the Underwriters seeking
indemnification under the terms of the Underwriting Agreement.
On January 14, 2020, Mr. Monfort filed a cross-complaint against
the Underwriters seeking indemnification under the terms of the
Underwriting Agreement.
On January 15, 2020, Mr. Monfort filed a cross-complaint against
the Company seeking indemnification under the terms of the
Company's Amended and Restated Bylaws and Section 145 of the
Delaware General Corporation Law.
On February 18, 2020, the company filed an answer to Mr. Monfort's
cross-complaint, generally denying the allegations and asserting
affirmative defenses.
ADOMANI said, "We believe that the purported class action lawsuit
is without merit and intend to vigorously defend the action."
ADOMANI, Inc. provides zero-emission electric and hybrid drivetrain
systems for integration in new and existing school buses and medium
to heavy-duty commercial fleet vehicles. ADOMANI, Inc. was founded
in 2012 and is headquartered in Corona, California.
ADVENT TECHNOLOGIES: Notice of Dismissal Filed in Frey Suit
-----------------------------------------------------------
Advent Technologies Holdings, Inc. said in its Form 10-K report
filed with the U.S. Securities and Exchange Commission on March 26,
2021, for the fiscal year ended December 31, 2020, that a notice of
dismissal of the complaint initiated by Dillon Frey, was filed in
the Supreme Court of the State of New York, County of New York.
On December 17, 2020, a purported shareholder class action
complaint was filed by Frey against the Company in the Supreme
Court of the State of New York, County of New York, alleging that
the proposed Business Combination with Advent is both procedurally
and substantively unfair and seeking to maintain the action as a
class action and enjoin the Business Combination, among other
things, without stating a specific amount of damages.
The complaint does not provide detail as to how the proposed
Business Combination is unfair, either procedurally or
substantively, and the company believes it has no merit.
On February 10, 2021, a notice of dismissal of the complaint was
filed in the Supreme Court of the State of New York, County of New
York.
Advent Technologies Holdings, Inc. is a blank check company
incorporated in Delaware on June 18, 2018 formed for the purposes
of effecting a merger, capital stock exchange, asset acquisition,
stock purchase, reorganization or similar business combination with
one or more businesses, which the company refers to as its initial
business combination. The company is based in Boston,
Massachusetts.
AGEAGLE AERIAL: Faces Lopez Class Action
-----------------------------------------
AgEagle Aerial Systems, Inc. said in its Form 10-K report filed
with the U.S. Securities and Exchange Commission on March 31, 2021,
for the fiscal year ended December 31, 2020, that the company faces
a class action suit entitled, Lopez v. AgEagle Aerial Systems,
Inc., et al., Case No. 2:21-cv-01810 (C.D. Cal.)
On February 26, 2021, Shawn Lopez filed a shareholder class action
complaint in the U.S. District Court for the Central District of
California seeking unspecified monetary damages for alleged
violations of the United States Securities Exchange Act of 1934
during the period from September 2, 2019 to February 18, 2021
against AgEagle Aerial Systems, Inc., J. Michael Drozd, Nicole
Fernandez-McGovern, Bret Chilcott, and Barrett Mooney.
The case is captioned Lopez v. AgEagle Aerial Systems, Inc., et
al., Case No. 2:21-cv-01810 (C.D. Cal.) and was assigned to
District Judge Christina A. Snyder and Magistrate Judge Charles F.
Eick.
Plaintiff's initial complaint alleges, among other things, that
Defendants purportedly violated the securities laws by making or
approving statements that contained allegedly false representations
concerning the Company's business relationship with an e-commerce
company.
AgEagle Aerial Systems, Inc. produces, supports and operates
technologically advanced drone systems and solutions for the
fast-emerging unmanned aerial vehicle (UAV) industry. The company
is based in Wichita, Kansas.
AGEAGLE AERIAL: Madrid Class Suit Transferred to Judge Snyder
-------------------------------------------------------------
AgEagle Aerial Systems, Inc. said in its Form 10-K report filed
with the U.S. Securities and Exchange Commission on March 31, 2021,
for the fiscal year ended December 31, 2020, that the class action
suit entitled, Madrid v. AgEagle Aerial Systems, Inc., et al., Case
No. 2:21-cv-01991 (C.D. Cal.) has been transferred to District
Judge Christina A. Snyder and Magistrate Judge Charles F. Eick as a
related case to Lopez v. AgEagle Aerial Systems, Inc., et al., Case
No. 2:21-cv-01810.
On March 4, 2021, Cristian Jesus Merino Madrid filed a shareholder
class action complaint in the U.S. District Court for the Central
District of California seeking unspecified monetary damages for
alleged violations of the United States Securities Exchange Act of
1934 during the period from September 2, 2019 to February 18, 2021
against AgEagle Aerial Systems, Inc., J. Michael Drozd, Nicole
Fernandez-McGovern, Bret Chilcott, and Barrett Mooney (captioned
Madrid v. AgEagle Aerial Systems, Inc., et al., Case No.
2:21-cv-01991 (C.D. Cal.)).
Plaintiff's initial complaint alleges, similar to the Lopez case
described above, that Defendants, among other things, purportedly
violated the securities laws by making or approving statements that
contained allegedly false representations concerning the Company's
business relationship with an e-commerce company.
On March 9, 2021, this case was transferred to District Judge
Christina A. Snyder and Magistrate Judge Charles F. Eick as a
related case to Lopez v. AgEagle Aerial Systems, Inc., et al., Case
No. 2:21-cv-01810.
AgEagle Aerial Systems, Inc. produces, supports and operates
technologically advanced drone systems and solutions for the
fast-emerging unmanned aerial vehicle (UAV) industry. The company
is based in Wichita, Kansas.
ANGLOGOLD ASHANTI: Suits Against AGAC in Columbia Ongoing
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AngloGold Ashanti Limited said in its Form 20-F report filed with
the U.S. Securities and Exchange Commission on March 26, 2021, for
the fiscal year ended December 31, 2020, that AngloGold Ashanti
Colombia S.A.'s (AGAC) continues to defend class action suits
related to Santa Maria-Montecristo and La Colosa projects.
Class action lawsuits have been filed in relation to each of AGAC's
Santa Maria-Montecristo and La Colosa projects. Each of the two
lawsuits aims to stop exploration and mining in certain restricted
areas affected by the projects due to environmental concerns.
In respect of the Santa Maria-Montecristo class action lawsuit, in
September 2011, the Administrative Court of Tolima granted one of
the plaintiffs a preliminary injunction suspending AGAC's mining
concession contracts in relation to this project. AGAC challenged
this injunction.
On 30 May 2019, the Administrative Court of Tolima ruled that a
technical study be prepared to define the places in which mining
activities could be performed in the Combeima canyon without posing
any threat to the water reservoirs of Ibagué, the capital of the
Tolima department.
In respect of the Santa Maria-Montecristo class action lawsuit, in
September 2011, the Administrative Court of Tolima granted one of
the plaintiffs a preliminary injunction suspending AGAC's mining
concession contracts in relation to this project.
AGAC has challenged this injunction, nevertheless, it remains in
place during the course of the court proceedings. On 30 May 2019,
the Administrative Court of Tolima ruled that a technical study be
prepared to define the places in which mining activities could be
performed in the Combeima canyon without posing any threat to the
water reservoirs of Ibagué, the capital of the Tolima department.
On 14 September 2020, the Council of State of Colombia on appeal
overruled Tolima's Administrative Court decision. The Council of
State's decision, which is final and not subject to further appeal,
determined that AGAC, as concessionaire, has a right to develop the
project if it can demonstrate to the mining and environmental
authorities on the basis of technical studies that its mining
exploration and, eventually, exploitation activities, will not
impact the water resources of the Coello River basin and its
tributaries.
The consolidated La Colosa class action lawsuit originally
consisted of four separate class actions.
In relation to this project, on 10 October 2016, Tolima's
Administrative Court ordered that a technical study be prepared by
a panel of seven experts (selected by the plaintiff, AGAC,
universities, the Colombian government and an NGO) to determine
whether the La Colosa project presents a "threat" to the
environment during its exploration phase.
On 4 December 2017, Ibague's Third Administrative Court ordered
that another technical study, similar to the one described in the
October 2016 order, be prepared for the La Colosa project. AGAC
appealed both orders.
On 6 September 2018, Tolima's Administrative Court consolidated all
class actions in relation to the La Colosa project into one single
class action lawsuit which is currently pending before the Council
of State.
The orders to prepare the technical studies have been temporarily
suspended pending resolution by the Council of State.
If AGAC's appeal before the Council of State is not successful, the
company may have to perform one or more technical studies in
relation to the La Colosa project. If the studies were to conclude
that a “threat” exists, certain development activities at the
La Colosa project may be suspended.
Further, while the plaintiffs in the La Colosa class action have
petitioned the courts to cancel the mining concession contract, the
company believes that the judiciary system in Colombia does not
have the authority to order such cancellation.
Such power, by law, vests solely in the Colombian government which,
through the relevant Colombian mining authorities, has the
discretion to declare concessions void if a concession holder
breaches applicable environmental laws or regulations. The
Colombian government, as the authority granting the mining
concession contracts, is also a defendant in this class action
lawsuit together with AGAC.
AGAC continues to oppose, through a variety of integrated legal and
political strategies, the class action lawsuit that was filed
against it. However, if the plaintiffs prevail and AGAC is unable
to perform its core concession contracts as a result of the
judicial decision, the company would be required to abandon the
project.
AngloGold Ashanti Limited, a gold mining company with a globally
diverse, world-class portfolio of operations and projects, is
headquartered in Johannesburg, South Africa. AngloGold Ashanti is
the third largest gold mining company in the world, measured by
production.
ANNIE'S HOMEGROWN: Mac & Cheese Contains Phthalates, Angelos Says
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CHRISTINA ANGELOS and JESSICA NICODEMO, individually and on behalf
of all others similarly situated, Plaintiffs v. ANNIE'S HOMEGROWN,
INC., Defendant, Case No. 3:21-cv-02462 (N.D. Cal., April 6, 2021)
alleges that the Defendant improperly and misleadingly packaged and
marketed the Annie's Homegrown Mac & Cheese Products to consumers
by failing to disclose on the Products' packaging that it contain,
or are at risk of containing, "ortho-phthalates," also known as
"phthalates," which are dangerous and harmful chemicals.
According to the Plaintiff in the complaint, phthalates are toxic
industrial chemicals that are far from organic, wholesome or
healthy. The tag line on the Products' packaging says, "Made with
Goodness!" However, instead of being wholesome, healthy, and of
high quality, or "Made with Goodness!" as prominently stated on its
packaging, the products contain, or are at risk of containing,
dangerous and harmful phthalates, the suit adds.
While the statements on the Annie's Homegrown website are buried in
the Frequently Asked Questions section, they are nonetheless an
admission by the Defendant that it is information a reasonable
consumer would consider important. Yet no information about the
presence, or risk, of phthalates in the Annie's Homegrown Mac &
Cheese Products is disclosed anywhere on the packaging, says the
suit.
Annie's Homegrown, Inc. sells natural and organic food products.
The Company offers snacks, yogurt, cereal, soup, sauces, and frozen
foods. [BN]
The Plaintiffs are represented:
Rebecca A. Peterson, Esq.
LOCKRIDGE GRINDAL NAUEN P.L.L.P.
100 Washington Avenue South, Suite 2200
Minneapolis, MN 55401
Telephone: (612) 339-6900
Facsimile: (612) 339-0981
E-mail: rapeterson@locklaw.com
-and-
Lori G. Feldman, Esq.
GEORGE GESTEN MCDONALD, PLLC
102 Half Moon Bay Drive
Croton-on-Hudson, NY 10520
Telephone: (917) 983-9321
Facsimile: (888) 421-4173
E-mail: LFeldman@4-justice.com
ASHLEY DISTRIBUTION: Schiller Suit Remanded to San Bernardino Court
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In the case, FRANCISCO SCHILLER, on behalf of himself and all other
similarly-situated employees, Plaintiff v. ASHLEY DISTRIBUTION
SERVICES, LTD.; and DOES 1 through 10, Inclusive, Defendants, Case
No. 5:20-cv-02662-JWH-(KKx) (C.D. Cal.), Judge John W. Holcomb of
the U.S. District Court for the Central District of California
grants the Plaintiff's motion to remand the action to the Superior
Court of the State of California for the County of San Bernardino.
On July 23, 2020, Schiller, individually and purportedly on behalf
of all others similarly situated, filed his Complaint commencing
the action in the Superior Court of the State of California for the
County of San Bernardino.
Mr. Schiller asserts seven claims for relief in his Complaint: (1)
Failure to Pay Minimum, Regular, and Overtime Wages ("Unpaid Wage
Claim"); (2) Failure to Provide Meal Periods or Compensation in
Lieu Thereof ("Meal Period Claim"); (3) Failure to Provide Rest
Periods or Compensation in Lieu Thereof ("Rest Period Claim"); (4)
Failure to Provide Accurate Itemized Wage Statements ("Wage
Statement Claim"); (5) Failure to Timely Pay Wages Due Upon
Separation of Employment ("Waiting Time Penalty Claim"); (6)
Failure to Reimburse Business-Related Expenses ("Business Expense
Claim"); and (7) Violation of the Unfair Competition Law, Cal. Bus.
& Prof. Code Sections 17200, et seq.
Defendant Ashley filed its Answer to Schiller's Complaint in the
Superior Court on Dec. 28, 2020. On Dec. 29, 2020, it removed the
action to the Court pursuant to 28 U.S.C. Section 1441, asserting
jurisdiction under the Class Action Fairness Act ("CAFA"), 28
U.S.C. Section 1332(d).
On Feb. 1, 2021, Schiller filed the instant Motion to Remand
pursuant to 28 U.S.C. Section 1447. Ashley timely filed its
Opposition on Feb. 19, 2021, and Schiller timely filed his Reply on
Feb. 26, 2021.
Ashley removed the action to this Court pursuant to 28 U.S.C.
Section 1441, asserting jurisdiction under the CAFA. Therefore, it
bears the burden of establishing that the Court has original
subject matter jurisdiction over the action.
As a threshold matter, the parties agree that there is minimal
diversity, as required by the CAFA. The only jurisdictional
dispute is with respect to the amount in controversy requirement
under the CAFA.
Mr. Schiller challenges Ashley's invocation of CAFA jurisdiction on
the ground that Ashley has not satisfied the amount in controversy
requirement. In addition to the calculation of the amount in
controversy in its Notice of Removal, Ashley also provides a
"conservative" and a "most conservative" model of the amounts in
controversy.
Mr. Schiller contends that Ashley has not shown, by a preponderance
of evidence, that the amount in controversy meets or exceeds the $5
million threshold. In this regard, Schiller objects to Ashley's
assumptions regarding violation rates for the Unpaid Wages claim
and the Meal and Rest Period Claim and to the reimbursement rate
that Ashley utilized to calculate the amount in controversy for the
Unreimbursed Business Expense Claim. Schiller does not, however,
challenge Ashley's calculation of the amount in controversy with
respect to the other claims.
The Plaintiff does not contest Ashley's calculation of the amount
in controversy for the Wage Statement Claim or the Waiting Time
Penalty Claim. Accordingly, Judge Holcomb finds that Ashley's
assumptions in calculating the amount in controversy for these
claims are reasonable. For the purpose of the analysis, he adopts
the most up to date amount in controversy calculation for each of
these claims, proffered by Ashley in its Opposition: The amount in
controversy for the Wage Statement Claim is $1,088,350; and the
amount in controversy for the Waiting Time Penalty Claim is
$681,177.
Next, Ashley did not calculate the average number of hours worked
per workweek or the average number of days worked per week. The
sole basis for Ashley's assumption is Schiller's allegation that
Ashley failed to pay wages for "all hours" worked in eight hours
per day or 40 hours per week and the allegation that the PCMs
"regularly" worked shifts longer than 10 hours per day. In the
absence of additional data, however, Judge Holcomb cannot find that
Ashley's assumptions are reasonable. Assuming for the purpose of
his analysis that 30 minutes of unpaid overtime per week would be
reasonable in the case, even though there is no evidentiary support
for any such conclusion, the amount in controversy for the Unpaid
Wage Claim would be $329,158.08.
In the absence of additional evidentiary support -- such as the
average number of hours and days worked per workweek, which would
at least provide a baseline for assessing how many meal and rest
periods employees were entitled to on average -- Judge Holcomb also
finds that Ashley's assumptions are unreasonable. Instead, he
finds that an assumption of one meal period violation and one rest
period violation per week would be reasonable in view of Schiller's
allegations. With that assumption in place, the total amount in
controversy for Schiller's Meal and Rest Period Claims is
$877,754.88.
With respect to Ashley's calculation of the amount in controversy
for Shiller's Business Expense Claim, Schiller objects to Ashley's
assumption that each PCM should have received a stipend of $7.50
(or $30 per month) for business expenses. Judge Holcomb declines
to make any finding with respect to this assumption because, even
if Ashley's assumption is credited as reasonable and the amount is
calculated based upon the updated employment data, Ashley still
cannot meet the amount in controversy requirement under the CAFA.
Similarly, in view of his findings with respect to the amount in
controversy for the underlying claims, even if Judge Holcomb
factors in attorneys' fees (which are included in the calculation),
Ashley still cannot meet the amount in controversy requirement.
In view of the foregoing, the Judge Holcomb calculates that the
total amount in controversy, including attorneys' fees, is
$3,970,759.96. He therefore concludes that Ashley has not shown by
a preponderance of the evidence that the amount in controversy
meets or exceeds the $5 million threshold under the CAFA.
For these reasons, the Judge grants the Plaintiff's instant Motion
to Remand in its entirety. He remanded the action to the San
Bernardino County Superior Court.
A full-text copy of the Court's April 6, 2021 Order is available at
https://tinyurl.com/2crtsbe5 from Leagle.com.
BA CREDIT: Appeal in Damage Class Settlement Still Pending
----------------------------------------------------------
BA Credit Card Trust said in its Form 10-K report filed with the
U.S. Securities and Exchange Commission on March 25, 2021, for the
fiscal year ended December 31, 2020, that the appeal in the
settlement in the Rule 23(b)(3) damages class related to the action
entitled, In re Payment Card Interchange Fee and Merchant Discount
Anti-Trust Litigation, is pending.
In 2005, a group of merchants filed a series of putative class
actions and individual actions directed at interchange fees
associated with Visa and MasterCard payment card transactions.
These actions, which were consolidated in the U.S. District Court
for the Eastern District of New York under the caption In re
Payment Card Interchange Fee and Merchant Discount Anti-Trust
Litigation, named Visa, MasterCard and several banks and bank
holding companies, including Bank of America Corporation ("BAC"),
as defendants.
Plaintiffs alleged that defendants conspired to fix the level of
default interchange rates and that certain rules of Visa and
MasterCard were unreasonable restraints of trade.
Plaintiffs sought compensatory and treble damages and injunctive
relief.
On October 19, 2012, defendants reached a settlement with respect
to the putative class actions that the U.S. Court of Appeals for
the Second Circuit rejected.
In 2018, defendants reached a settlement with the representatives
of the putative Rule 23(b)(3) damages class to contribute an
additional $900 million to the approximately $5.3 billion held in
escrow from the prior settlement.
BAC's additional contribution is not material to BAC. The District
Court approved that settlement with the putative Rule 23(b)(3)
damages class on December 13, 2019 but that approval is being
appealed.
In addition, the putative Rule 23(b)(2) class action seeking
injunctive relief is pending, and a number of individual merchant
actions continue against the defendants, including one against BAC.
As a result of various loss-sharing agreements, however, BAC
remains liable for a portion of any settlement or judgment in
individual actions where it is not named as a defendant.
No further updates were provided in the Company's SEC report.
BA Credit Card Trust is a Delaware statutory trust structured to
allow maximum flexibility in the issuance of BA series notes. The
trust consists of receivables generated from Visa, MasterCard and
American Express revolving credit card accounts.
BIG APPLE: Fails to Pay Proper Wages to Laborers, Garcia Suit Says
------------------------------------------------------------------
CARLOS GARCIA, individually and on behalf of all others similarly
situated, Plaintiff v. BIG APPLE REMODELING CORP. and VELOCITY
FRAMERS USA INC., Defendants, Case No. 1:21-cv-01852 (E.D.N.Y.,
April 6, 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.
Mr. Garcia was employed by the Defendants as laborer.
BIG APPLE REMODELING CORP. is engaged in the construction business.
[BN]
The Plaintiff is represented by:
Michael R. Minkoff, Esq.
Alexander T. Coleman, Esq.
Michael J. Borrelli, Esq.
BORRELLI & ASSOCIATES, P.L.L.C.
910 Franklin Avenue, Suite 200
Garden City, NY 11530
Telephone: (516) 248-5550
Facsimile: (516) 248-6027
BIT DIGITAL: Faces Bitcoin Related Securities Class Suits
---------------------------------------------------------
Bit Digital, Inc. said in its Form 20-F report filed with the U.S.
Securities and Exchange Commission on March 30, 2021, for the
fiscal year ended December 31, 2020, that the company is facing
several securities class action suits related to the price of of
bitcoin.
On January 20, 2021, a securities class action lawsuit was filed
against the Company and its Chief Executive Officer and Chief
Financial Officer titled Anthony Pauwels v. Bit Digital, Inc., Min
Hu and Erke Huang (Case No. 1:21-cv-00515) (U.S.D.C. S.D.N.Y.).
A second class action lawsuit was filed on January 26, 2021,
substantially identical, titled Yang v. Bit Digital, Inc., Min Hu
and Erke Huang (Case No. 1:21-cv-00721) (U.S.D.C. S.D.N.Y.).
Several other related cases have since been filed seeking lead
plaintiff status.
The class action is on behalf of persons that purchased or acquired
our Ordinary Shares between December 21, 2020 and January 8, 2021,
a period of volatility in the company's stock, as well as
volatility in the price of bitcoin.
Bit Digital said, "We believe the complaints are based solely upon
a research article issued on January 11, 2021, which included false
claims and to which the Company responded in a press release filed
on Form 6-K on January 19, 2021. We intend to seek dismissal of the
lawsuits and will vigorously defend the action."
Bit Digital, Inc. ("BTBT"), formerly known as Golden Bull Limited,
is a holding company incorporated on February 17, 2017, under the
laws of the Cayman Islands. The Company is currently engaged in the
bitcoin mining business through its wholly owned subsidiaries in
the United States, Hong Kong and commencing in 2021 in Canada. The
company is based in New York, New York.
BLACKBERRY LTD: Appeals Order Granting Plaintiffs' Class Cert. Bid
------------------------------------------------------------------
BlackBerry Limited said in its Form 10-K report filed with the
U.S. Securities and Exchange Commission on March 31, 2021, for the
fiscal year ended February 28, 2021, that the appeal on the court's
decision granting plaintiffs request for class certification is
pending.
Between October and December 2013, several purported class action
lawsuits and one individual lawsuit were filed against the Company
and certain of its former officers in various jurisdictions in the
U.S. and Canada alleging that the Company and certain of its
officers made materially false and misleading statements regarding
the Company's financial condition and business prospects and that
certain of the Company's financial statements contain material
misstatements. The individual lawsuit was voluntarily dismissed.
On March 14, 2014, the four putative U.S. class actions were
consolidated in the U.S. District Court for the Southern District
of New York, and on May 27, 2014, a consolidated amended class
action complaint was filed.
On March 13, 2015, the Court issued an order granting the Company's
motion to dismiss. The Court denied the plaintiffs' motion for
reconsideration and for leave to file an amended complaint on
November 13, 2015.
On August 24, 2016, the U.S. Court of Appeals for the Second
Circuit affirmed the District Court order dismissing the complaint,
but vacated the order denying leave to amend and remanded to the
District Court for further proceedings in connection with the
plaintiffs' request for leave to amend. The Court granted the
plaintiffs' motion for leave to amend on September 13, 2017.
On September 29, 2017, the plaintiffs filed a second consolidated
amended class action complaint, which added the Company's former
Chief Legal Officer as a defendant. The Court denied the motion to
dismiss the Second Amended Complaint on March 19, 2018.
On January 4, 2019, the Court issued an order placing the case on
its suspense calendar but allowed fact and expert discovery to
continue.
On August 2, 2019, the Magistrate Judge issued a Report and
Recommendation that the Court grant the defendants' motion for
judgment on the pleadings dismissing the claims of additional
plaintiffs Cho and Ulug.
On September 24, 2019, the District Court Judge accepted the
Magistrate Judge's recommendation and dismissed the claims of Cho
and Ulug against all defendants. On October 17, 2019, Cho and Ulug
filed a Notice of Appeal.
The Second Circuit Court of Appeals affirmed the District Court
judgment dismissing Cho and Ulug's claims on March 11, 2021. The
District Court removed the case from its suspense calendar on May
29, 2020.
Plaintiffs filed a motion for class certification on June 8, 2020,
the defendants filed oppositions on August 10, 2020, and the
plaintiffs filed a reply on September 28, 2020. All discovery was
completed as of November 13, 2020.
On January 26, 2021, the District Court granted the plaintiffs'
motion for class certification.
On February 9, 2021, the defendants filed a Rule 23(f) petition for
interlocutory review of the class certification order with the
Second Circuit Court of Appeals.
The plaintiffs filed an opposition to the Rule 23(f) petition on
February 19, 2021, and the defendants filed a motion for leave to
file a reply in support of the petition on February 26, 2021.
On February 8, 2021, the Magistrate Judge set a settlement
conference for May 19, 2021.
On February 15, 2021, the District Court set the following briefing
schedule for dispositive motions: motions due April 19, 2021,
oppositions due June 18, 2021, and replies due July 19, 2021.
BlackBerry Limited provides intelligent security software and
services to enterprises and governments around the world. The
company secures more than 500 million endpoints including 150
million cars. Based in Waterloo, Ontario, the company leverages
artificial intelligence and machine learning to deliver innovative
solutions in the areas of cybersecurity, safety and data privacy,
and is a leader in the areas of endpoint security management,
encryption, and embedded systems.
BLACKBERRY LTD: Discovery Ongoing in Ontario Class Suit
-------------------------------------------------------
BlackBerry Limited said in its Form 10-K report filed with the U.S.
Securities and Exchange Commission on March 31, 2021, for the
fiscal year ended February 28, 2021, that discovery is ongoing in
the class action suit pending before an Ontario Court.
On July 23, 2014, the plaintiffs in the putative Ontario class
action filed a motion for certification and leave to pursue
statutory misrepresentation claims.
On November 16, 2015, the Ontario Superior Court of Justice issued
an order granting the plaintiffs' motion for leave to file a
statutory claim for misrepresentation. On December 2, 2015, the
Company filed a notice of motion seeking leave to appeal this
ruling.
On January 22, 2016, the Court postponed the hearing on the
plaintiffs' certification motion to an undetermined date after
asking the Company to file a motion to dismiss the claims of the
U.S. plaintiffs for forum non conveniens.
Before that motion was heard, the parties agreed to limit the class
to purchasers who reside in Canada or purchased on the Toronto
Stock Exchange. On November 15, 2018, the Court denied the
Company's motion for leave to appeal the order granting the
plaintiffs leave to file a statutory claim for misrepresentation.
On February 5, 2019, the Court entered an order certifying a class
comprised persons (a) who purchased BlackBerry common shares
between March 28, 2013, and September 20, 2013, and still held at
least some of those shares as of September 20, 2013, and (b) who
acquired those shares on a Canadian stock exchange or acquired
those shares on any other stock exchange and were a resident of
Canada when the shares were acquired.
Notice of class certification was published on March 6, 2019.
The Company filed its Statement of Defence on April 1, 2019, and
discovery is proceeding.
No further updates were provided in the Company's SEC report.
BlackBerry Limited provides intelligent security software and
services to enterprises and governments around the world. The
company secures more than 500 million endpoints including 150
million cars. Based in Waterloo, Ontario, the company leverages
artificial intelligence and machine learning to deliver innovative
solutions in the areas of cybersecurity, safety and data privacy,
and is a leader in the areas of endpoint security management,
encryption, and embedded systems.
BLACKBERRY LTD: Discovery Ongoing in Ontario Employment Class Suit
------------------------------------------------------------------
BlackBerry Limited said in its Form 10-K report filed with the U.S.
Securities and Exchange Commission on March 31, 2021, for the
fiscal year ended February 28, 2021, that discovery is ongoing in
the employment class action suit filed in the Ontario Superior
Court of Justice.
On February 15, 2017, a putative employment class action was filed
against the Company in the Ontario Superior Court of Justice. The
Statement of Claim alleges that actions the Company took when
certain of its employees decided to accept offers of employment
from Ford Motor Company of Canada amounted to a wrongful
termination of the employees' employment with the Company.
The claim seeks (i) an unspecified quantum of statutory,
contractual, or common law termination entitlements; (ii) punitive
or breach of duty of good faith damages of CAD$20,000,000, or such
other amount as the Court finds appropriate, (iii) pre- and post-
judgment interest, (iv) attorneys' fees and costs, and (v) such
other relief as the Court deems just.
The Court granted the plaintiffs' motion to certify the class
action on May 27, 2019. The Company commenced a motion for leave to
appeal the certification order on June 11, 2019. The Court denied
the motion for leave to appeal on September 17, 2019.
The Company filed its Statement of Defence on December 19, 2019,
and discovery is proceeding.
BlackBerry Limited provides intelligent security software and
services to enterprises and governments around the world. The
company secures more than 500 million endpoints including 150
million cars. Based in Waterloo, Ontario, the company leverages
artificial intelligence and machine learning to deliver innovative
solutions in the areas of cybersecurity, safety and data privacy,
and is a leader in the areas of endpoint security management,
encryption, and embedded systems.
BLINK CHARGING: Filing of Bid to Dismiss Bush Suit Due April 20
---------------------------------------------------------------
Blink Charging Co. said in its Form 10-K report filed with the U.S.
Securities and Exchange Commission on March 31, 2021, for the
fiscal year ended December 31, 2020, that the company's deadline to
file a motion to dismiss the consolidated purported securities
class suit entitled, Bush v. Blink Charging Co. et al., Case No.
20-cv-23527, is on April 20, 2021.
On August 24, 2020, a purported securities class action lawsuit,
captioned Bush v. Blink Charging Co. et al., Case No. 20-cv-23527,
was filed in the United States District Court for the Southern
District of Florida against the Company, Michael Farkas (Blink's
Chairman of the Board and Chief Executive Officer), and Michael
Rama (Blink's Chief Financial Officer).
On September 1, 2020, another purported securities class action
lawsuit, captioned Vittoria v. Blink Charging Co. et al., Case No.
20-cv-23643, was filed in the United States District Court for the
Southern District of Florida against the same defendants and
seeking to recover the same alleged damages.
On October 1, 2020, the court consolidated the Vittoria Lawsuit
with the Bush Lawsuit and on December 21, 2020 the court appointed
Tianyou Wu, Alexander Yu and H. Marc Joseph to serve as the Co-Lead
Plaintiffs.
The Co-Lead Plaintiffs filed an Amended Complaint on February 19,
2021. The Amended Complaint alleges, among other things, that the
defendants made false or misleading statements about the size and
functionality of the Blink Network, and asserts claims under
Sections 10(b) and 20(a) of the Securities Exchange Act of 1934.
The Amended Complaint does not quantify damages but seeks to
recover damages on behalf of investors who purchased or otherwise
acquired Blink's common stock between March 6, 2020 and August 19,
2020.
Currently, the deadline for Blink's motion to dismiss the Amended
Complaint is April 20, 2021; the deadline for the Co-Lead
Plaintiffs to file an opposition brief in response to the motion to
dismiss is June 21, 2021; and the deadline for Blink to file a
reply in support of the motion to dismiss is July 21, 2021.
Blink said, "The Company believes that the claim has no merit, and
wholly and completely disputes the allegations therein. The Company
has retained legal counsel in order to defend the action
vigorously. The Company has not recorded an accrual related to this
matter as of December 31, 2020 as it determined that any such loss
contingency was either not probable or estimable."
Blink Charging Co. a leading owner, operator and supplier of
proprietary electric vehicle charging equipment and networked EV
charging services. The company serves both residential and
commercial EV charging settings, enabling EV drivers to easily
recharge at various location types. The company is based in Miami
Beach, Florida.
BLUE RIDGE: Suit vs. Virginia Community Bankshares Ongoing
----------------------------------------------------------
Blue Ridge Bankshares, Inc. said in its Form 10-K report filed with
the U.S. Securities and Exchange Commission on March 29, 2021, for
the fiscal year ended December 31, 2020, that the company has
assumed liability of Virginia Community Bankshares, Inc. (VCB) in
relation to the class action suit filed against the latter.
On August 12, 2019, a former employee of VCB and participant in its
Employee Stock Ownership Plan (ESOP) filed a class action complaint
against VCB, Virginia Community Bank, and certain individuals
associated with the ESOP in the U.S. District Court for the Western
District of Virginia, Charlottesville Division (Case No.
3:19-cv-00045-GEC).
The complaint alleges, among other things, that the defendants
breached their fiduciary duties to ESOP participants in violation
of the Employee Retirement Income Security Act of 1974, as amended.
The complaint alleges that the ESOP incurred damages "that approach
or exceed $12 million."
The Company automatically assumed any liability of VCB in
connection with this litigation as a result of the Company's
acquisition of VCB.
The outcome of this litigation is uncertain, and the plaintiff and
other individuals may file additional lawsuits related to the VCB
ESOP.
Blue Ridge said, "The defense, settlement, or adverse outcome of
any such lawsuit or claim could have a material adverse financial
impact on the Company. The Company believes the claims are without
merit."
No further updates were provided in the Company's SEC report.
Blue Ridge Bankshares, Inc. is a bank holding company headquartered
in Charlottesville, Virginia. It provides commercial and consumer
banking and financial services through its wholly-owned bank
subsidiary, Blue Ridge Bank, National Association, and its non-bank
financial services affiliates. The Company was incorporated under
the laws of the Commonwealth of Virginia in July 1988 in connection
with the holding company reorganization of the Bank, which was
completed in July 1988.
BP EXPLORATION: Wins Bid for Summary Judgment in Scott BELO Suit
----------------------------------------------------------------
In the lawsuit styled CAROLYN SCOTT, Plaintiff v. BP EXPLORATION &
PRODUCTION, INC., et al., Defendants, Case No. 19-00254-KD-MU (S.D.
Ala.), the U.S. District Court for the Southern District of Alabama
granted summary judgment in favor of BP.
The action is before the Court on the Motion for Summary Judgment
filed by Defendants BP Exploration & Production, Inc., and BP
America Production Co. ("BP"), brief and evidence in support.
Plaintiff Scott was ordered to file her response by February 24,
2021. To date, no response has been filed.
Plaintiff Scott filed a Back-End Litigation Option (BELO) lawsuit
pursuant to the BELO provisions of the BP/Deepwater Horizon Medical
Benefits Class Action Settlement Agreement (MSA) in MDL No. 2179.
Scott alleges that as a result of exposure to oil and/or oil
dispersants during the clean-up following the Deepwater Horizon oil
spill, which occurred on April 20, 2010, she has been diagnosed
with "a variety of conditions including, but not limited to chronic
dry eye syndrome." Scott worked "very shortly after" the oil spill.
She "was working 12 hours, 7 days a week" and her "primary duties
involved digging and picking up tar balls on shore and placing them
in garbage bags or buckets."
Ms. Scott alleges that she was diagnosed with chronic dry eye
syndrome on September 6, 2013. Because her alleged condition
developed after April 16, 2012, it is a "Later-Manifested Physical
Condition" (LMPC). She selected the BELO process as her remedy for
compensation.
Ms. Scott's BELO complaint was initially filed in the Eastern
District of Louisiana and later transferred to the Court on May 29,
2019. That same day, the Court issued a BELO Case Management Order
to govern all BELO actions post-transfer (modified September 9,
2019). Relevant to the motion, the CMO provides that the "Plaintiff
will disclose all expert witnesses to be called at trial in
accordance with Fed. R. Civ. P. Rule 26 within 7 months (210 days)
of the docketing date." After an extension, Scott disclosed two
experts, Lee Lemond and Dr. Patricia Williams. She did not disclose
Dr. Gene Terrezza, an optometrist, who examined her at the request
of her attorney.
At deposition, Scott testified that Dr. Terrezza, an optometrist,
examined her eyes on September 6, 2013. She testified he said she
had a "bad case of chronic eye" and "some kind of stuff in my eye,"
and her work for BP was the cause of her eye condition. The
appointment lasted about an hour and that Dr. Terrezza gave her "a
piece of paper telling her what to do to her eyes, making sure she
put drops in her eyes." She did not see him again. Scott testified
that she has not been treated by any other ophthalmologist or
optometrist since that day and she uses "Tears" eyedrops, which she
buys at Wal-Mart.
At her deposition, Scott provided a copy of Dr. Terrezza's
fill-in-the-blank/check-the-box form. He filled in a blank to
indicate Scott had worked on the clean-up in July 2010, checked the
box to indicate that during the exam, the patient was found to have
chronic dry eye syndrome due to chemical exposure, and wrote that
it is his belief that her illness began at the point of exposure.
Dr. Terrezza was deposed May 5, 2020, in regard to BELO cases in
the Northern District of Florida. He testified that he screened
claimants referred by attorneys but did not have a doctor-patient
relationship with them. Although not specifically testifying with
regard to Scott, Dr. Terrezza testified that signs and symptoms of
tearing and irritation could apply to a number of ocular
conditions, and that "burning" and "dry eye" could be a symptom of
a number of different eye conditions.
BP argues that because Scott does not have any admissible evidence
to establish the fact of a correct medical diagnosis, there is no
genuine issue of material fact and BP is entitled to summary
judgment in its favor. BP points out that Scott did not disclose
any retained expert to opine as to her medical diagnosis and did
not disclose Dr. Terrazza as a non-retained medical expert. BP
argues that Scott should be precluded from offering any expert
evidence from Dr. Terrezza as to her diagnosis for failure to
comply with Fed. R. Civ. P. 26(a)(2)(C).
BP also points out that Dr. Terrezza admitted that his pre-printed
form was used to screen and identify claimants' signs and symptoms
for further investigation by the claimants' attorneys, but not to
provide a medical diagnosis; admitted that he did not have a
treating relationship with Scott; and also admitted that certain
signs and symptoms identified during the screenings could apply to
other ocular conditions. BP argues that Dr. Terrezza's opinion, if
proffered as an expert opinion as to Scott's diagnosis, does not
meet the requirements of Fed. R. Evid. 702 because it is not a
diagnosis, is unreliable and would not be helpful to the
fact-finder and, therefore, inadmissible.
In her complaint, Scott relies on a diagnosis made September 6,
2013. Although she did not identify Dr. Terrezza in her complaint,
the undisputed evidence shows that he examined Scott on that date.
However, Scott failed to disclose Dr. Terrazza as a non-retained
expert witness and failed to disclose any other expert witness
whose testimony would establish a diagnosis of her alleged chronic
dry eye syndrome, Chief District Judge Kristi K. DuBose opines.
When given the opportunity to respond to BP's arguments, Scott
failed to do so. Thus, she did not offer any argument that her
failure to disclose was substantially justified or harmless, such
that the Court may excuse the failure and allow a witness, Judge
DuBose holds.
Moreover, as BP points out, Dr. Terrazza's
check-the-box/fill-in-the-blank form and his testimony with regard
to the purpose of the form are not reliable and admissible expert
opinion evidence, which would meet the requirements of Fed. R.
Evid. 702, Judge DuBose opines, citing Escobar v. BP Expl. & Prod.,
Inc., No. CV 18-9170, 2019 WL 6877645, at *3 (E.D. La. Dec. 17,
2019).
Judge DuBose points out that Scott cannot prove an essential
element of her BELO claim against BP, a correct diagnosis of her
alleged condition. Accordingly, BP is entitled to summary judgment
in its favor.
For the reasons set forth in the Order, BP's unopposed motion for
summary judgment is granted.
Judgment will be entered by separate document as provided in Rule
58(a) of the Federal Rules of Civil Procedure.
A full-text copy of the Court's Order dated April 5, 2021, is
available at https://tinyurl.com/ynhdezhu from Leagle.com.
BRF SA: Court Approves Settlement in Birmingham Retirement Suit
----------------------------------------------------------------
BRF S.A. said in its Form 20-F report filed with the U.S.
Securities and Exchange Commission on March 26, 2021, for the
fiscal year ended December 31, 2020, that the court approved the
settlement in the class action suit headed by the City of
Birmingham Retirement and Relief System.
On March 12, 2018, a shareholder class action lawsuit was filed
against the company, some of its former managers and a current
officer of the company in the U.S. Federal District Court in the
Southern District of New York.
On July 2, 2018, the Court appointed the City of Birmingham
Retirement and Relief System lead plaintiff in the action. On
December 5, 2018, the Lead Plaintiff filed an amended complaint
that sought to represent all persons and entities who purchased or
otherwise acquired the company's American Depositary Receipts
(ADRs) during the period from April 4, 2013, through and including
March 2, 2018.
The class action alleges, among other things, that we and certain
officers or directors of ours engaged in securities fraud or other
unlawful business practices related to the regulatory issues in
connection with the Carne Fraca Operation and Trapaça Operation.
On December 13, 2019, the company and the other defendants filed a
motion to dismiss. On January 21, 2020, the Lead Plaintiff filed an
opposition motion, and, on February 11, 2020, the company and the
other defendants filed its response.
While the court's decision on the motion to dismiss was still
pending, the parties reached an agreement on March 27, 2020 to
settle this class action for an amount equivalent to R$204,436
thousand (U.S.$40,000 thousand, translated to reais at the exchange
rate of R$5.1109 as of March 27, 2020).
The court approved this settlement on October 23, 2020.
BRF S.A. focuses on raising, producing, and slaughtering poultry
and pork for processing, production, and sale of fresh meat,
processed products, pasta, frozen vegetables, and soybean
by-products. The company was formerly known as BRF-Brasil Foods
S.A. and changed its name to BRF S.A. in April 2013. BRF S.A. is
headquartered in Itajai, Brazil.
BUMBLE BEE: Order Certifying 3 Classes in Antitrust Suit Vacated
----------------------------------------------------------------
In the multidistrict antitrust case styled OLEAN WHOLESALE GROCERY
COOPERATIVE, INC., et al. v. BUMBLE BEE FOODS LLC, et al., Case No.
19-56514 (9th Cir.), the U.S. Court of Appeals for the Ninth
Circuit vacates the district court's order certifying three classes
and remands with instructions to resolve the factual disputes
concerning the number of uninjured parties in each proposed class
before determining predominance.
StarKist Co. and Tri-Union Seafoods, doing business as Chicken of
the Sea, producers of packaged tuna, appeal an order certifying
three classes in a multidistrict antitrust case alleging a
price-fixing conspiracy. The Defendants challenge the district
court's determination that Rule 23(b)(3)'s "predominance"
requirement was satisfied by expert statistical evidence finding
class-wide impact based on averaging assumptions and pooled
transaction data.
The Plaintiffs, various purchasers of tuna products, brought the
class action alleging a price-fixing conspiracy by the Defendants,
the three largest domestic producers of packaged tuna. Together,
the Defendants account for over 80% of all branded packaged tuna
sales in the country.
The Plaintiffs allege that the Defendants colluded to artificially
inflate the prices of their tuna products by engaging in various
forms of anti-competitive conduct, including agreeing to (1) fix
the net and list prices for packaged tuna, (2) limit promotional
activity for packaged tuna, and (3) exchange sensitive or
confidential business information in furtherance of the
conspiracy.
There is little dispute over the existence of a price-fixing
scheme. Soon after the action was commenced, the Department of
Justice initiated criminal charges against the Defendants for their
price-fixing conspiracy. Bumble Bee and StarKist have since
pleaded guilty to federal, criminal price-fixing charges, as have
several of their current and former executives. Chicken of the Sea
has also admitted to price fixing and agreed to cooperate with the
federal investigation.
The Plaintiffs proposed three classes of purchasers who bought
packaged tuna products between November 2010 and December 2016.
The first proposed class, called the Direct Purchaser Plaintiff
("DPP") Class, consists of retailers who directly purchased
packaged tuna products during the relevant period. In support of
certification, the Plaintiffs submitted the expert testimony and
report of econometrician Dr. Russell Mangum III. Dr. Mangum
"primarily" relied on statistical evidence "in the form of a
regression model which purports to prove that the price-fixing
conspiracy harmed all, or nearly all, of the Class members."
Comparing that but-for price to a "clean" benchmark period with no
anticompetitive activity, Dr. Mangum concluded that the DPP Class
was overcharged by an average of 10.28% because of the price
fixing. Finally, assuming each class member experienced the same
10.28% average overcharge, Dr. Mangum ran a regression analysis and
concluded that 1,111 out of 1,176 direct purchasers (or 94.5%) were
injured by the Defendants' actions.
The district court certified the class, concluding that the
Defendants' challenges to Dr. Mangum's methods were "ripe for use
at trial" but "not fatal to a finding of classwide impact." It
thought the critical issue was to determine whether Dr. Mangum's
method is "capable of showing" impact on all or nearly all class
members. Because it was not persuaded that "Dr. Mangum's model is
unreliable or incapable of proving impact on a class-wide basis,"
the court found predominance established for the DPP Class.
For the next two proposed classes, the Plaintiffs offered expert
reports and testimony that proceeded similarly to Dr. Mangum's
statistical analysis. The Commercial Food Service Product ("CFP")
Class consists of those who purchased packaged tuna products of 40
ounces or more from six major retailers (Dot Foods, Sysco, US
Foods, Sam's Club, Wal-Mart, and Costco). The End Payer Plaintiffs
("EPP") Class is defined as consumers who bought Defendants'
packaged tuna products in cans or pouches smaller than 40 ounces
for end consumption from any of the six major retailers.
The Defendants' expert, Dr. Laila Haider, objected to the
Plaintiffs' experts' methodology largely for the same reasons
raised in opposition to the DPPs' methodology, focusing on
benchmark selection, averaging, and false positives. Finding only
"subtle differences" between the methodologies of the Plaintiffs'
experts' and the Defendants' objections in these two classes and
the DPP Class, the district court certified the CFP and the EPP
Classes. Despite finding "potential flaws" in the Plaintiffs'
experts' methodology, the court nonetheless concluded it was
"reliable and capable of proving impact" and that the jury could
determine whether liability and damages were proven.
A motions panel granted the Defendants' petition for permission to
appeal the class certification order under Federal Rule of Civil
Procedure Rule 23(f) and 28 U.S.C. Section 1292(e).
The Defendants raise two challenges to the district court's
reliance on the Plaintiffs' representative evidence. First, they
argue that this type of representative evidence -- especially the
use of averaging assumptions -- cannot be used to establish
predominance. Second, the Defendants claim that, even if this type
of evidence can show predominance, the Plaintiffs' econometric
analysis does not in fact establish predominance because a
significant percentage of the class may have suffered no injury at
all under the Plaintiffs' experts' statistical modeling.
The Ninth Circuit opines that the Plaintiffs' representative
evidence can prove the class-wide impact element of their
price-fixing theory of liability and, thus, may be used to
establish predominance. It finds that the Plaintiffs' statistical
evidence is not materially different than the type of evidence that
would be used against the Defendants in individual cases brought by
each class member. It also finds that the Plaintiffs' regression
models test only one theory of liability: The but-for impact of the
Defendants' price-fixing conspiracy. It further finds that the
individualized damages calculations do not, alone, defeat
predominance -- although the presence of class members who suffered
no injury at all may defeat predominance.
Because this type of representative evidence can be used to prove
injury in individual antitrust suits, is consistent with the
Plaintiffs' underlying cause of action, and doesn't necessarily
mask a lack of predominance, the Appellate Court holds that it is
permissible to rely on the Plaintiffs' representative evidence at
the class certification stage.
Even if the Plaintiffs' representative evidence could be used to
satisfy predominance, the Appellate Court cannot embrace their
conclusions and averaging assumptions uncritically. Statistical
evidence is not a talisman. Courts must still rigorously analyze
the use of such evidence to test its reliability and to see if the
statistical modeling does in fact mask individualized differences.
Despite admirably and thoroughly marshaling the evidence in this
difficult case, the district court needed to go further by
resolving the parties' dispute over whether the representative
evidence swept in only 5.5% or as much as 28% uninjured DPP Class
members. The district court also needed to make a similar
determination for the other putative classes. Deciding this
preliminary question is necessary to determine whether the
Plaintiffs have established predominance.
The Ninth Circuit ultimately concludes that this form of
statistical or "representative" evidence can be used to establish
predominance, but the district court abused its discretion by not
resolving the factual disputes necessary to decide the requirement
before certifying these classes. It thus vacates the district
court's order certifying the classes and remand for the court to
determine the number of uninjured parties in the proposed class
based on the dueling statistical evidence. Only then should the
district court rule on whether predominance has been established.
The Plaintiffs are OLEAN WHOLESALE GROCERY COOPERATIVE, INC.;
BEVERLY YOUNGBLOOD; PACIFIC GROSERVICE, INC., DBA Pitco Foods;
CAPITOL SUPERMARKET; LOUISE ANN DAVIS MATTHEWS; JAMES WALNUM; COLIN
MOORE; JENNIFER A. NELSON; ELIZABETH DAVIS-BERG; LAURA CHILDS;
NANCY STILLER; BONNIE VANDERLAAN; KRISTIN MILLICAN; TREPCO IMPORTS
AND DISTRIBUTION, LTD.; JINKYOUNG MOON; COREY NORRIS; CLARISSA
SIMON; AMBER SARTORI; NIGEL WARREN; AMY JOSEPH; MICHAEL JUETTEN;
CARLA LOWN; TRUYEN TON-VUONG, AKA David Ton; A-1 DINER; DWAYNE
KENNEDY; RICK MUSGRAVE; DUTCH VILLAGE RESTAURANT; LISA BURR; LARRY
DEMONACO; MICHAEL BUFF; ELLEN PINTO; ROBBY REED; BLAIR HYSNI;
DENNIS YELVINGTON; KATHY DURAND GORE; THOMAS E. WILLOUGHBY III;
ROBERT FRAGOSO; SAMUEL SEIDENBURG; JANELLE ALBARELLO; MICHAEL
COFFEY; JASON WILSON; JADE CANTERBURY; NAY ALIDAD; GALYNA
ANDRUSYSHYN; ROBERT BENJAMIN; BARBARA BUENNING; DANIELLE GREENBERG;
SHERYL HALEY; LISA HALL; TYA HUGHES; MARISSA JACOBUS; GABRIELLE
KURDT; ERICA PRUESS; SETH SALENGER; HAROLD STAFFORD; CARL LESHER;
SARAH METIVIER SCHADT; GREG STEARNS; KARREN FABIAN; MELISSA BOWMAN;
VIVEK DRAVID; JODY COOPER; DANIELLE JOHNSON; HERBERT H. KLIEGERMAN;
BETH MILLINER; LIZA MILLINER; JEFFREY POTVIN; STEPHANIE GIPSON;
BARBARA LYBARGER; SCOTT A. CALDWELL; RAMON RUIZ; THYME CAFE &
MARKET, INC.; HARVESTERS ENTERPRISES, LLC; AFFILIATED FOODS, INC.;
PIGGLY WIGGLY ALABAMA DISTRIBUTING CO., INC.; ELIZABETH TWITCHELL;
TINA GRANT; JOHN TRENT; BRIAN LEVY; LOUISE ADAMS; MARC BLUMSTEIN;
JESSICA BREITBACH; SALLY CRNKOVICH; PAUL BERGER; STERLING KING;
EVELYN OLIVE; BARBARA BLUMSTEIN; MARY HUDSON; DIANA MEY; ASSOCIATED
GROCERS OF NEW ENGLAND, INC.; NORTH CENTRAL DISTRIBUTORS, LLC;
CASHWA DISTRIBUTING CO. OF KEARNEY, INC.; URM STORES, INC.; WESTERN
FAMILY FOODS, INC.; ASSOCIATED FOOD STORES, INC.; GIANT EAGLE,
INC.; McLANE COMPANY, INC.; MEADOWBROOK MEAT COMPANY, INC.;
ASSOCIATED GROCERS, INC.; BILO HOLDING, LLC; WINNDIXIE STORES,
INC.; JANEY MACHIN; DEBRA L. DAMSKE; KEN DUNLAP; BARBARA E. OLSON;
JOHN PEYCHAL; VIRGINIA RAKIPI; ADAM BUEHRENS; CASEY CHRISTENSEN;
SCOTT DENNIS; BRIAN DEPPERSCHMIDT; AMY E. WATERMAN; CENTRAL
GROCERS, INC.; ASSOCIATED GROCERS OF FLORIDA, INC.; BENJAMIN FOODS
LLC; ALBERTSONS COMPANIES LLC; H.E. BUTT GROCERY COMPANY; HYVEE,
INC.; THE KROGER CO.; LESGO PERSONAL CHEF LLC; KATHY VANGEMERT; EDY
YEE; SUNDE DANIELS; CHRISTOPHER TODD; PUBLIX SUPER MARKETS, INC.;
WAKEFERN FOOD CORP.; ROBERT SKAFF; WEGMANS FOOD MARKETS, INC.;
JULIE WIESE; MEIJER DISTRIBUTION, INC.; DANIEL ZWIRLEIN; MEIJER,
INC.; SUPERVALU INC.; JOHN GROSS & COMPANY; SUPER STORE INDUSTRIES;
W. LEE FLOWERS & CO. INC.; FAMILY DOLLAR SERVICES, LLC; AMY
JACKSON; FAMILY DOLLAR STORES, INC.; KATHERINE McMAHON; DOLLAR TREE
DISTRIBUTION, INC.; JONATHAN RIZZO; GREENBRIER INTERNATIONAL, INC.;
JOELYNA A. SAN AGUSTIN; ALEX LEE, INC.; REBECCA LEE SIMOENS; BIG Y
FOODS, INC.; DAVID TON; KVAT FOOD STORES, INC., DBA FOOD CITY;
AFFILIATED FOODS MIDWEST COOPERATIVE, INC.; MERCHANTS DISTRIBUTORS,
LLC; BROOKSHIRE BROTHERS, INC.; SCHNUCK MARKETS, INC.; BROOKSHIRE
GROCERY COMPANY; KMART CORPORATION; CERTCO, INC.; RUSHIN GOLD, LLC,
DBA The Gold Rush; UNIFIED GROCERS, INC.; TARGET CORPORATION;
SIMON-HINDI, LLC; FAREWAY STORES, INC.; MORAN FOODS, LLC, DBA
Save-A-Lot; WOODMAN'S FOOD MARKET, INC.; DOLLAR GENERAL
CORPORATION; SAM'S EAST, INC.; DOLGENCORP, LLC; SAM'S WEST, INC.;
KRASDALE FOODS, INC.; WALMART STORES EAST, LLC; CVS PHARMACY, INC.;
WALMART STORES EAST, LP; BASHAS' INC.; WAL-MART STORES TEXAS, LLC;
MARC GLASSMAN, INC.; WAL-MART STORES, INC.; 99 CENTS ONLY STORES;
JESSICA BARTLING; AHOLD U.S.A., INC.; GAY BIRNBAUM; DELHAIZE
AMERICA, LLC; SALLY BREDBERG; ASSOCIATED WHOLESALE GROCERS, INC.;
KIM CRAIG; MAQUOKETA CARE CENTER; GLORIA EMERY; ERBERT & GERBERT'S,
INC.; ANA GABRIELA FELIX GARCIA; JANET MacHEN; JOHN FRICK; PAINTED
PLATE CATERING; KATHLEEN GARNER; ROBERT ETTEN; ANDREW GORMAN;
GROUCHO'S DELI OF FIVE POINTS, LLC; EDGARDO GUTIERREZ; GROUCHO'S
DELI OF RALEIGH; ZENDA JOHNSTON; SANDEE'S CATERING; STEVEN KRATKY;
CONFETTI'S ICE CREAM SHOPPE; KATHY LINGNOFSKI; END PAYER
PLAINTIFFS; LAURA MONTOYA; KIRSTEN PECK; JOHN PELS; VALERIE PETERS;
ELIZABETH PERRON; AUDRA RICKMAN; ERICA C. RODRIGUEZ,
Plaintiffs-Appellees, and JESSICA DECKER; JOSEPH A. LANGSTON;
SANDRA POWERS; GRAND SUPERCENTER, INC.; THE CHEROKEE NATION; US
FOODS, INC.; SYSCO CORPORATION; GLADYS, LLC; SPARTANNASH COMPANY;
and BRYAN ANTHONY REO.
The Defendants are BUMBLE BEE FOODS LLC; TRI-UNION SEAFOODS, LLC,
DBA Chicken of the Sea International, DBA Thai Union Group PCL, DBA
Thai Union North America, Inc.; STARKIST CO.; DONGWON INDUSTRIES
CO., LTD.; THAI UNION GROUP PCL, Defendants-Appellants, and KING
OSCAR, INC.; THAI UNION FROZEN PRODUCTS PCL; DEL MONTE FOODS
COMPANY; TRI MARINE INTERNATIONAL, INC.; DONGWON ENTERPRISES; DEL
MONTE CORP.; CHRISTOPHER D. LISCHEWSKI; LION CAPITAL (AMERICAS),
INC.; BIG CATCH CAYMAN LP, AKA Lion/Big Catch Cayman LP; FRANCIS T.
ENTERPRISES; GLOWFISCH HOSPITALITY; and THAI UNION NORTH AMERICA,
INC.
A full-text copy of the Court's April 6, 2021 Opinion is available
at https://tinyurl.com/nkyjj3vj from Leagle.com.
Gregory G. Garre -- gregory.garre@lw.com -- (argued) and Samir
Deger-Sen -- samir.deger-sen@lw.com -- Latham & Watkins LLP,
Washington, D.C.; Christopher S. Yates, Belinda S. Lee, and Ashley
M. Bauer, Latham & Watkins LLP, in San Francisco, California; John
Roberti, Allen & Overy LLP, Washington, D.C.; Kenneth A. Gallo,
Paul Weiss Rifkind Wharton & Garrison LLP, in Washington, D.C., for
Defendants-Appellants.
Christopher L. Lebsock -- clebsock@hausfeld.com -- (argued) ,
Michael P. Lehmann -- mlehmann@hausfeld.com -- Bonny E. Sweeney,
and Samantha J. Stein, Hausfeld LLP, San Francisco, California;
Jonathan W. Cuneo (argued), Joel Davidow, and Blaine Finley, Cuneo
Gilbert & Laduca LLP, Washington, D.C.; Thomas H. Burt (argued),
Wolf Haldenstein Adler Freeman & Herz LLP, New York, New York;
Betsy C. Manifold, Rachele R. Byrd, Marisa C. Livesay, and Brittany
N. Dejong, Wolf Haldenstein Adler Freeman & Herz LLP, in San Diego,
California; for Plaintiffs-Appellees.
Robert S. Kitchenoff , President, Committee to Support the
Antitrust Laws, in Washington, D.C.; Warren T. Burns and Kyle K.
Oxford, Burns Charest LLP, in Dallas, Texas; for Amicus Curiae
Committee to Support the Antitrust Laws.
Ashley C. Parrish -- aparrish@kslaw.com -- and Joshua N. Mitchell
-- jmitchell@kslaw.com -- King & Spalding LLP, Washington, D.C.;
Anne M. Voigts and Quyen L. Ta, King & Spalding LLP, in San
Francisco, California; Steven P. Lehotsky and Jonathan D. Urick,
U.S. Chamber Litigation Center, in Washington, D.C.; for Amicus
Curiae Chamber of Commerce of the United States.
Randy M. Stutz -- rstutz@antitrustinstitute.org -- American
Antitrust Institute, in Washington, D.C.; Ellen Meriwether,
Cafferty Clobes Meriwethier & Sprengal, in Media, Pennsylvania; for
Amicus Curiae American Antitrust Institute.
Scott L. Nelson -- litigation@citizen.org -- and Allison M. Zieve,
Public Citizen Litigation Group, in Washington, D.C., for Amicus
Curiae Public Citizen.
CALIFORNIA: Dismissal of Ackers Suit v. EDD With Prejudice Endorsed
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In the case, GREGORY ACKERS, Plaintiff v. CALIFORNIA EMPLOYMENT
DEVELOPMENT DEPARTMENT, and GAVIN NEWSOM, Defendants, Case No.
2:21-cv-00244 JAM AC PS (E.D. Cal.), Magistrate Judge Allison
Claire of the U.S. District Court for the Eastern District of
California recommends that the Plaintiff's First Amended Complaint
be dismissed without further leave to amend.
The Plaintiff is proceeding in the action pro se. The case was
accordingly referred to Magistrate Judge Claire by E.D. Cal.
302(c)(21). The Plaintiff was previously granted leave to proceed
in forma pauperis.
The Plaintiff initially brought a putative class action for
violations of the Electronic Funds Transfer Act (15 U.S.C. Section
1693) ("EFTA"), and many state law claims. He alleges that there
is a fraudulent scam being run out of state penitentiaries in which
more than 35,000 inmates were issued payments by Defendant
California Employment Development Department ("EDD"). He asserted
that aside from those facts, several million other Californians
have been cheated out of EDD Benefits by an elusive and corrosive
state government. The Plaintiff stated that he and members of the
putative class were "harmed by the same unlawful, deceptive,
unfair, systemic, and pervasive pattern of misconduct engaged in by
Defendant."
The Court rejected the Plaintiff's complaint, explaining that it
did not contain facts supporting any cognizable legal claim against
any Defendant. It explained that a pro se plaintiff cannot act as
an attorney for others and cannot bring a class action. It further
explained that it was not clear that the Plaintiff has standing to
bring the case, because he did not allege that he suffered any
actual harm. The court also noted that the Plaintiff appeared to
have named the incorrect defendants. The Plaintiff was given
leave to file an amended complaint.
The Plaintiff's FAC was filed on April 5, 2021. It is no longer
titled a class action, though it is styled as one, regularly
referring to "the mass" and "millions of Californians" who have
suffered. He identifies himself alone as the Plaintiff, but states
that he "suffered the same INJURY as 30 million other
Californians." The FAC continues to address elements of a class
action, such as numerosity, commonality, and typicality. The
Plaintiff does not identify any specific harm to himself. He
maintained his state claims but removed his claim under the EFTA.
Magistrate Judge Claire finds that the Plaintiff's FAC is not
meaningfully different from his original complaint except that he
has removed the only federal cause of action, thereby defeating
jurisdiction under 28 U.S.C. Section 1331. Because there is no
diversity of citizenship in the case, without any federal causes of
action, the Court lacks jurisdiction and the case must be
dismissed. Further, the Magistrate Judge finds that the complaint
does not contain facts supporting any cognizable legal claim
against any Defendant. As previously explained, a pro se plaintiff
cannot act as an attorney for others and cannot bring a class
action. The complaint, though no longer labeled a class action, is
styled as a class action and all the allegations involve injuries
to a purported class.
Additionally, it is now apparent that the Plaintiff does not have
standing to bring the case. To have Article III standing, a
plaintiff must plead and prove that he has suffered sufficient
injury to satisfy the "case or controversy" requirement of Article
III of the United States Constitution.
The Plaintiff's FAC does not specify any injury that he personally
suffered with respect to the allegations in the complaint, and
therefore he has not properly alleged standing. Having already
explained to the Plaintiff the requirements of Article III standing
and given him an opportunity to cure the defect, the Magistrate
Judge is now confident that this defect cannot be cured. It is
clear at this juncture that the Court lacks jurisdiction and that
the Plaintiff does not have standing to bring the case. The case
must be dismissed without further leave to amend as further
amendment would be futile.
For the reasons she explained, Magistrate Judge Claire recommends
that the First Amended Complaint be dismissed with prejudice.
Within 21 days after being served with these findings and
recommendations, the Plaintiff may file written objections with the
Court and serve a copy on all parties. Such a document should be
captioned "Objections to Magistrate Judge's Findings and
Recommendations." Failure to file objections within the specified
time may waive the right to appeal the District Court's order.
A full-text copy of the Court's April 6, 2021 Findings &
Recommendations is available at https://tinyurl.com/rtpnbv5r from
Leagle.com.
CLOUDERA INC: Bid to Dismiss Consolidated Securities Suit Pending
-----------------------------------------------------------------
Cloudera, Inc. said in its Form 10-K report filed with the U.S.
Securities and Exchange Commission on March 25, 2021, for the
fiscal year ended January 31, 2021, that the motion to dismiss in
the consolidated putative class action suit entitled, In re
Cloudera, Inc. Securities Litigation, Case No. 5:19-cv-3221-LHK, is
pending.
On June 7, 2019, a purported class action complaint was filed in
the United States District Court for the Northern District of
California, entitled Christie v. Cloudera, Inc., et al., Case No.
5:19-cv-3221-LHK.
The complaint named as defendants Cloudera, its former Chief
Executive Officer, its Chief Financial Officer and a former officer
and director, asserting alleged class claims under Sections 10(b)
and 20(a) of the Securities Exchange Act of 1934 and SEC Rule
10b-5.
Two substantially similar class action complaints, entitled
Zarantonello v. Cloudera, Inc., et al., Case No. 5:19-cv-4007-LHK,
and Dvornic v. Cloudera, Inc., et al., Case No. 5:19-cv-4310-LHK,
were subsequently filed against the same defendants in the same
court on July 12, 2019 and July 26, 2019, respectively.
The suits have been consolidated under the name, In re Cloudera,
Inc. Securities Litigation, Case No. 5:19-cv-3221-LHK.
The court subsequently appointed lead plaintiffs and lead counsel,
and a consolidated complaint was filed on February 14, 2020. On
March 18, 2020, the court vacated its prior order appointing lead
plaintiffs and lead counsel and reopened the lead plaintiff
process.
On July 27, 2020, the court appointed new lead plaintiffs and lead
counsel. On September 22, 2020, lead plaintiffs filed a
consolidated amended complaint.
The consolidated amended complaint asserts claims against Cloudera
and four individual defendants under Sections 10(b) and 20(a) of
the Exchange Act and Rule 10b-5, based on allegedly false and
misleading statements between April 28, 2017 and June 5, 2019.
The consolidated amended complaint also asserts claims against
Cloudera, Intel Corporation, and fourteen current and former
officers and directors under the Securities Act of 1933, on behalf
of all persons who acquired Cloudera stock pursuant or traceable to
the S-4 registration statement filed in connection with Cloudera's
January 2019 merger with Hortonworks, and alleges that the
registration statement contained untrue statements of material fact
and omitted material facts.
On October 16, 2020, two additional plaintiffs filed a motion to
intervene seeking permission to file an additional class action
complaint alleging claims under the Securities Act of 1933. The
court has not yet ruled on that motion.
On October 27, 2020, defendants filed motions to dismiss the
consolidated amended complaint. A hearing on the motions to dismiss
is currently scheduled for April 1, 2021.
Cloudera believes that the allegations in the lawsuits are without
merit.
Cloudera, Inc. provides platform for machine learning and analytics
in the United States, Europe, and Asia. The company operates
through two segments, Subscription and Services. Cloudera, Inc. was
founded in 2008 and is headquartered in Palo Alto, California.
CLOUDERA INC: Case Management Conference Set for June 9
-------------------------------------------------------
Cloudera, Inc. said in its Form 10-K report filed with the U.S.
Securities and Exchange Commission on March 25, 2021, for the
fiscal year ended January 31, 2021, that a case management
conference is currently scheduled for June 9, 2021, in the
consolidated putative securities class suit entitled, In re
Cloudera, Inc. Securities Litigation, Lead Case No. 19CV348674
On June 7, 2019, a purported class action complaint was filed in
the Superior Court of California, County of Santa Clara, entitled
Lazard v. Cloudera, Inc., et al., Case No. 19CV348674. The
complaint named as defendants Cloudera, thirteen individuals who
are current or former directors or officers of Cloudera, and Intel
Corporation.
Two substantially similar suits, entitled Franchi v. Cloudera,
Inc., et al., Case No. 19CV348790, and Cannizzo v. Cloudera, Inc.,
et al., Case No. 19CV348974, were subsequently filed in the same
court on June 11, 2019 and June 14, 2019, respectively.
The suits have been consolidated under the name In re Cloudera,
Inc. Securities Litigation, Lead Case No. 19CV348674 and the
consolidated amended complaint purports to assert claims under
Sections 11, 12(a)(2) and 15 of the Securities Act of 1933 on
behalf of all persons who acquired Cloudera stock pursuant or
traceable to the S-4 registration statement filed in connection
with Cloudera's January 2019 merger with Hortonworks. The
consolidated amended complaint alleges that the registration
statement contained untrue statements of material fact and omitted
material facts.
Plaintiffs seek, among other things, an award of damages and
attorneys' fees and costs.
On July 1, 2020, the court overruled Cloudera's demurrer to the
consolidated amended complaint.
On August 18, 2020, a purported shareholder class action captioned
Stahl v. Cloudera, Inc., et al., Case No. 20CV369480 was filed in
the Superior Court of California, County of Santa Clara, and was
subsequently consolidated into the lead case.
On November 5, 2020, the court entered a stipulated order
certifying a class consisting of all persons who acquired Cloudera
common stock in exchange for Hortonworks securities pursuant to the
registration statement and prospectus issued in connection with
Cloudera's January 2019 merger and acquisition of Hortonworks.
A further case management conference is currently scheduled for
June 9, 2021. Cloudera believes that the allegations in the
lawsuits are without merit.
Cloudera, Inc. provides platform for machine learning and analytics
in the United States, Europe, and Asia. The company operates
through two segments, Subscription and Services. Cloudera, Inc. was
founded in 2008 and is headquartered in Palo Alto, California.
CLOVER HEALTH: Facing Several Putative Class Suits in Tennessee
---------------------------------------------------------------
Clover Health Investments, Corp. said in its Form 10-K report filed
with the U.S. Securities and Exchange Commission on March 31, 2021,
for the fiscal year ended December 31, 2020, that the company is
facing several putative class action suits in Tennessee.
In February 2021, the company and certain of its directors and
officers were named as defendants in putative class actions filed
in the United States District Court for the Middle District of
Tennessee: Bond v. Clover Health Investments, Corp. et al.,
3:21-cv-00096 (M.D. Tenn.); Kaul v. Clover Health Investments,
Corp. et al., Case No. 3:21-cv-0010 (M.D. Tenn.); Yaniv v. Clover
Health Investments, Corp. et al., Case No. 3:21-cv-00109 (M.D.
Tenn.); and Tremblay v. Clover Health Investments, Corp. et al.,
Case No. 3:21-cv-00138 (M.D. Tenn.).
The complaints assert violations of sections 10(b) and 20(a) of the
Exchange Act and Rule 10b-5 promulgated under the Exchange Act. The
Kaul action asserts additional claims under sections 11 and 15 of
the Securities Act.
The complaints generally relate to allegations published in the
Hindenburg article. The complaints seek unspecified damages on
behalf of all persons and entities who purchased or acquired Clover
securities during the class period (which begins on October 6,
2020, and, depending on the complaint, ends on February 3, 2021 or
February 4, 2021), as well as certain other costs.
A parallel shareholder derivative action has also been filed,
naming Clover as a nominal defendant, and asserting violations of
sections 10(b) and 21D of the Exchange Act, breach of fiduciary
duty, and waste of corporate assets against our directors.
That action was filed in the United States District Court for the
District of Delaware and is captioned Furman v. Garipalli et al.,
Case No. 1:21-cv-00191 (D. Del.). The complaint seeks unspecified
damages and an order requiring Clover to take certain actions to
enhance Clover's corporate governance, policies, and procedures.
Clover said, "All of these cases remain in the preliminary stages.
Given the inherent uncertainty of litigation and the legal
standards that must be met, including class certification and
success on the merits, we cannot express an opinion on the
likelihood of an unfavorable outcome or on the amount or range of
any potential loss. Clover intends to vigorously defend itself
against the claims asserted against it."
Clover Health Investment, Corp. provides insurance services. The
Company offers hospital, medical, and private insurance services.
Clover Health Investment serves customers in the United States. The
company is based in Franklin, Tennessee.
CO-DIAGNOSTICS INC: Stock Price Increase Related Suits Underway
---------------------------------------------------------------
Co-Diagnostics, Inc. said in its Form 10-K report filed with the
U.S. Securities and Exchange Commission on March 25, 2021, for the
fiscal year ended December 31, 2020, that the company continues to
defend five different securities class action complaints that
alleges that the company promulgated false and misleading press
releases to increase the price of the company's stock to improperly
benefit the officers and directors of the Company.
Five different securities class action complaints were filed in
July, September and December by certain stockholders of the Company
against the Company claiming that the Company promulgated false and
misleading press releases to increase the price of the company's
stock to improperly benefit the officers and directors of the
Company.
The plaintiffs demand compensatory damages sustained as a result of
the Company's alleged wrongdoing in an amount to be proven at
trial.
The Company believes these lawsuits are without merit and intends
to defend the cases vigorously.
The Company is unable to estimate a range of loss, if any, that
could result were there to be an adverse final decision in these
cases.
Co-Diagnostics said, "As of the date of this report, the Company
does not believe it is probable that these cases will result in an
unfavorable outcome; however, if an unfavorable outcome were to
occur in these cases, it is possible that the impact could be
material to the Company's results of operations in the period(s) in
which any such outcome becomes probable and estimable."
Co-Diagnostics, Inc. a Utah corporation, is developing robust and
innovative molecular tools for detection of infectious diseases,
liquid biopsy for cancer screening, and agricultural applications.
COLUMBIA COLLEGE: First Amended Buschauer Suit Tossed W/o Prejudice
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In the case, DAVID BUSCHAUER, individually and on behalf of all
others similarly situated, Plaintiff v. COLUMBIA COLLEGE CHICAGO,
Defendant, Case No. 20 C 3394 (N.D. Ill.), Judge Sara L. Ellis of
the U.S. District Court for the Northern District of Illinois,
Eastern Division, grants Columbia's motion to dismiss and dismisses
the first amended complaint without prejudice.
Columbia, a private, nonprofit college with almost 7,000 students
in over 60 undergraduate and graduate programs, offers a curriculum
that blends creative and media arts, liberal arts, and business.
Plaintiff Buschauer, a resident of Lemont, Illinois, decided to
attend Columbia as an undergraduate to further his interest in
music and art. He attended Columbia during the 2019-2020 school
year and anticipated graduating in May 2021 with a degree in
entertainment marketing and music business. For the spring 2020
semester, Buschauer accepted the Financial Responsibility Agreement
and registered for classes.
Columbia charged him $13,305 in tuition and $613 in mandatory fees.
This included a $50 registration fee; $70 health center fee; $150
activity fee to fund student programs, services, clubs, and special
events; $153 U-Pass fee that provided full-time students with
unlimited CTA rides; $150 technology fee to fund computer labs,
software, on-campus internet access, and student technology
support; and a $40 instruction resource fee for his Animal Behavior
and Marketing Research course, intended to cover course materials
and other class-related educational expenses.
In light of the COVID-19 pandemic, in March 2020, Defendant
Columbia shifted its classes online and closed its campus for the
remainder of the spring 2020 semester. Unhappy with this change
and believing that it negatively affected the value of his
education,
Mr. Buschauer filed the putative class action on behalf of himself
and all Columbia undergraduate and graduate students. He brings
claims for breach of contract or, in the alternative, unjust
enrichment, seeking a refund of the tuition and fees he paid for
the portion of the spring 2020 semester during which he did not
receive on-campus, in-person instruction or access to campus
facilities and resources.
Columbia has moved to dismiss Buschauer's first amended complaint.
Columbia initially argues that the Court should dismiss the first
amended complaint because Buschauer raises only noncognizable
claims of educational malpractice by challenging the quality of the
instruction he received after Columbia moved to online courses.
Judge Ellis finds that some courts have concluded that similar
allegations turn students' claims concerning the failure to receive
in-person instruction due to the COVID-19 pandemic into ones for
educational malpractice. But, she agrees with those courts that
have addressed similar tuition refund cases in the wake of COVID-19
that, at least at this stage, Buschauer's claims do not require the
Court to consider the quality of the online instruction he received
but rather whether Columbia failed to provide Buschauer with the
on-campus, in-person instruction and services it allegedly
promised.
To the extent that it becomes clear at a later stage that
Buschauer's claims or damages request would require an evaluation
of the comparative value of the remote and in-person instruction he
received, the Judget may reassess her conclusion. At this stage,
however, she cannot conclude that Buschauer has alleged
noncognizable claims of educational malpractice.
Judge Ellis proceeds to address Columbia's remaining arguments for
dismissal. Buschauer alleges that he "specifically contracted with
Columbia for courses that would be delivered 100% on-campus and
in-person, in addition to contracting for a full 15-week Spring
2020 Semester worth of access to on-campus facilities, resources,
events, and services," as set forth in "Columbia's catalogs,
circulars, bulletins, and regulations, in addition to industry
standards and customary dealings between students and
universities." Columbia argues that despite these allegations,
Buschauer has not identified any specific promise Columbia made to
provide on-campus, in-person instruction and services.
None of the bases Buschauer sets forth support finding that
Columbia made specific promises of on-campus, in-person instruction
and services for the spring 2020 semester, the Judge holds. First,
she says the FRA does not include any reference to on-campus,
in-person instruction and services. Next, although Buschauer
generally cites to Columbia's course catalog and other academic
policies in support of his contention that Columbia promised to
provide on-campus, in-person instruction, he fails to point to any
specific provision on that point. Similarly, the Judge cannot find
that Buschauer has sufficiently alleged that his payment of the
activity, health center, instruction resource, registration,
technology, or U-Pass fees entitled him to on-campus, in-person
services.
Because none of Buschauer's allegations support a specific promise
that Columbia made to provide on-campus, in-person instruction and
services, Judge Ellis must dismiss his breach of contract claim.
Buschauer pleads his unjust enrichment claim in the alternative,
omitting his allegations concerning the existence of a contract.
But this does not necessarily save Buschauer's claim. The parties
do not dispute that a contract existed between them but rather
whether the contract included specific promises about on-campus,
in-person instruction and services. Where plaintiffs have
acknowledged that there is an express contract, courts have
prevented plaintiffs from pursuing an unjust enrichment claim, even
in the alternative." Because Buschauer acknowledges the existence
of a contract with Columbia, the Judge finds it appropriate to
dismiss Buschauer's unjust enrichment claim as well.
Judge Ellis concludes that because Buschauer has not sufficiently
alleged that Columbia made any specific promise of on-campus,
in-person instruction or services, he cannot proceed on his breach
of contract claim. And because the parties do not dispute the
existence of a contract governing their relationship, Buschauer's
unjust enrichment claim fails, even though he has pleaded that
claim in the alternative. For these reasons, the Judge grants
Columbia's motion to dismiss and dismisses the first amended
complaint without prejudice.
A full-text copy of the Court's April 6, 2021 Opinion & Order is
available at https://tinyurl.com/ycyaym88 from Leagle.com.
COMCAST CABLE: 11th Cir. Reverses Arbitration Denial in Hearn Suit
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The United States Court of Appeals for the Eleventh Circuit
reverses the district court's ruling denying the Defendant's motion
to compel arbitration in the lawsuit captioned MICHAEL HEARN,
individually and on behalf of all other similarly situated
consumers, Plaintiff-Appellee v. COMCAST CABLE COMMUNICATIONS, LLC,
Defendant-Appellant, Case No. 19-14455 (11th Cir.).
On March 19, 2019, Plaintiff-Appellee Hearn filed a putative class
action against Comcast, alleging that it had violated the Fair
Credit Reporting Act (FCRA). Hearn claimed that when he called
Comcast to inquire about pricing and services, a Comcast
representative conducted a credit check and pulled his credit
information without his permission.
After Hearn brought the suit, Comcast moved to compel arbitration,
citing the Federal Arbitration Act (FAA) and a prior Subscriber
Agreement between Hearn and Comcast. The Subscriber Agreement
contained an Arbitration Provision that broadly applied to "any
claim or controversy related to Comcast" and specified that it
survived the termination of the Agreement.
The district court denied Comcast's motion to compel arbitration.
On appeal, Comcast raises two arguments. First, Eleventh Circuit
precedent demonstrates that the FAA requires courts to enforce
valid arbitration agreements, including agreements as broad as the
one at issue here. Second, even under the district court's limited
construction of the FAA, the case must be arbitrated because
Hearn's claim relates to the Subscriber Agreement.
Circuit Judge Charles R. Wilson notes that while the Appellate
Court has previously enforced arbitration provisions that
"evidenced a clear intent to cover more than just those matters set
forth in the contract," Bd. of Trs. of Delray Beach Police &
Firefighters Ret. Sys. v. Citigroup Glob. Mkts. Inc., 622 F.3d at
1343 (11th Cir. 2010) (alteration adopted), the Appellate Court has
not enforced a provision exactly like the one in this case.
In the case, the Arbitration Provision is different in that it
applies broadly to all disputes between the parties and applies
even if the dispute arises after the Subscriber Agreement is
terminated. While the language in some of this Court's previous
decisions may indicate that the full scope of the Arbitration
Provision is enforceable, this is a close question that the Court
leaves for another day, Judge Wilson says. The Court need not
address that question because it finds that Hearn's FCRA claim
relates to the Subscriber Agreement.
Mr. Hearn's FCRA claim relates to the Subscriber Agreement and,
therefore, falls within the Arbitration Provision. To start,
Comcast was able to conduct a credit check only because of its
previous relationship with Hearn. It used Hearn's personal
information, including his social security number, that it had on
file from the Subscriber Agreement to conduct the credit check.
Also, more importantly, Judge Wilson finds, the Subscriber
Agreement contains provisions that specify duties relating to
Comcast's alleged unlawful credit inquiry.
Judge Wilson also opines that the district court also
misinterpreted the Subscriber Agreement. It accepted Hearn's
position that he was calling Comcast to create a new account, not
to reconnect his old account and subsequently stated that the claim
therefore did not relate to the Agreement. In doing so, the
district court did not consider the Reconnection Provision as a
whole.
A comprehensive reading of the Reconnection Provision demonstrates
that even if the Court accept Hearn's statement that he was not
calling to reconnect services, his claim still relates to the
agreement, Judge Wilson finds. It is undisputed that Hearn was
calling to inquire about obtaining Comcast's services at the
Mableton address again. Because he previously used Comcast
services, Comcast would be "reinstating" services that were
previously disconnected. Thus, Hearn's claim relates to the
Reconnection Provision: that Provision explicitly addresses
situations where customers seek to resume and reinstate Comcast
services.
Moreover, it is foreseeable that Comcast would use Hearn's
information that it already had on file to reinstate services. This
situation is anticipated by the Agreement. Therefore, even
resolving this potential factual dispute in Hearn's favor, the
Reconnection Provision relates to the underlying claim, Judge
Wilson points out.
Similarly, the Credit Inquiries Provision directly relates to
Hearn's FCRA claim. The Credit Inquiries Provision authorizes
Comcast "to make inquiries and to receive information about [the
customer's] credit experience." And, relatedly, the Reconnection
Provision explicitly sets out that it is subject to the Credit
Inquiries Provision. The Credit Inquiries Provision, thus, directly
relates to Hearn's claim--Comcast used the private information from
Hearn's file to conduct a credit check after he called to inquire
about reinstating the company's services. And, just like with the
Reconnection Provision, the Agreement contemplates this type of
situation.
Judge Wilson notes that the Court's holding is narrow--the Court
does not answer if the broad scope of the Arbitration Provision is
enforceable under the FAA. The Court simply finds that Hearn's FCRA
claim relates to the Subscriber Agreement because of: the FAA's
liberal federal policy favoring arbitration agreements, the
relevant provisions in the Subscriber Agreement applicable to
Hearn, and the fact that Comcast would not have access to Hearn's
personal information--and therefore could not have engaged in the
allegedly tortious conduct--but for the pre-existing Agreement.
Because Hearn's claim relates to the Subscriber Agreement, the
Appellate Court reverses the district court and remands so it can
determine the merits of the parties' remaining arguments related to
Comcast's motion to compel arbitration.
Reversed and remanded.
A full-text copy of the Court's Opinion dated April 5, 2021, is
available at https://tinyurl.com/3erc7u2m from Leagle.com.
D WG FM INC: Fails to Pay Proper Wages, Dalton Suit Alleges
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LACEY DALTON, individually and on behalf of all others similarly
situated, Plaintiff v. D WG FM, INC. d/b/a SPLENDOR GENTLEMEN'S
CLUB, Defendant, Case No. 4:21-cv-01116 (S.D. Tex., April 6, 2021)
seeks damages, back-pay, restitution, liquidated damages,
prejudgment interest, reasonable attorney's fees and costs under
the Fair Labor Standards Act.
Plaintiff Dalton was employed by the Defendant as exotic dancer.
D WG FM, INC. d/b/a SPLENDOR GENTLEMEN'S CLUB owns and operates a
strip club located at Houston, Texas. [BN]
The Plaintiff is represented by:
Meredith Mathews, Esq.
J. Forester, Esq.
FORESTER HAYNIE
400 N St. Paul Street, Suite 700
Dallas, TX 75201
Telephone: (214) 210-2100
Facsimile: (214) 346-5909
E-mail: mmathews@foresterhaynie.com
jay@foresterhaynie.com
-and-
Gregg C. Greenberg, Esq.
James Miller, Esq.
ZIPIN AMSTER & GREENBERG, LLC
8757 Georgia Avenue, Suite 400
Silver Spring, MD 20910
Telephone: (301) 587-9373
E-mail: GGreenberg@ZAGFirm.com
JMiller@ZAGFirm.com
DELL TECH: Discovery Ongoing in Class V Transaction Related Suit
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Dell Technologies Inc. said in its Form 10-K report filed with the
U.S. Securities and Exchange Commission on March 26, 2021, for the
fiscal year ended January 29, 2021, that discovery is ongoing in
the consolidated putative class action suit entitled, In Re Dell
Class V Litigation (Consol. C.A. No. 2018-0816-JTL).
On December 28, 2018, the Company completed a transaction (the
"Class V transaction") in which it paid $14.0 billion in cash and
issued 149,387,617 shares of its Class C Common Stock to holders of
its Class V Common Stock in exchange for all outstanding shares of
Class V Common Stock. The non-cash consideration portion of the
Class V transaction totaled $6.9 billion. As a result of the Class
V transaction, the tracking stock feature of the Company's capital
structure associated with the Class V Common Stock was terminated.
The Class C Common Stock is traded on the NYSE.
Four purported stockholders brought putative class action
complaints arising out of the Class V transaction.
The actions were captioned Hallandale Beach Police and Fire
Retirement Plan v. Michael Dell et al. (Civil Action No.
2018-0816-JTL), Howard Karp v. Michael Dell et al. (Civil Action
No. 2019-0032-JTL), Miramar Police Officers' Retirement Plan v.
Michael Dell et al. (Civil Action No. 2019-0049-JTL), and
Steamfitters Local 449 Pension Plan v. Michael Dell et al. (Civil
Action No. 2019-0115-JTL).
The four actions were consolidated in the Delaware Chancery Court
into In Re Dell Class V Litigation (Consol. C.A. No.
2018-0816-JTL), which names as defendants the Company's board of
directors and certain stockholders of the Company, including
Michael S. Dell.
The plaintiffs generally allege that the defendants breached their
fiduciary duties to the former holders of Class V Common Stock in
connection with the Class V transaction by allegedly causing the
Company to enter into a transaction that favored the interests of
the controlling stockholders at the expense of such former
stockholders.
The plaintiffs seek, among other remedies, a judicial declaration
that the defendants breached their fiduciary duties and an award of
damages, fees, and costs.
The plaintiffs filed an amended complaint in August 2019 making
substantially similar allegations to those described above. The
defendants filed a motion to dismiss the action in September 2019.
The court denied the motion in June 2020 and the case is currently
in the discovery phase.
Dell Technologies Inc. provides computer products. The Company
offers laptops, desktops, tablets, workstations, servers, monitors,
printers, gateways, software, storage, and net working products.
Dell Technologies serves customers worldwide. Dell Technologies
Inc. was founded in 1984 and is headquartered in Round Rock,
Texas.
DELL TECH: Facing Pivotal Software Acquisition Related Suit
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Dell Technologies Inc. said in its Form 10-K report filed with the
U.S. Securities and Exchange Commission on March 26, 2021, for the
fiscal year ended January 29, 2021, that the company, VMware, Inc.
Michael S. Dell, and certain officers of Pivotal Software, Inc.,
are facing a consolidated putative class action suit entitled, In
re: Pivotal Software, Inc. Stockholders Litigation (Civil Action
No. 2020-0440-KSJM).
Two purported stockholders brought putative class action complaints
arising out of VMware, Inc.'s acquisition of Pivotal Software, Inc.
on December 30, 2019. The two actions were consolidated in the
Delaware Chancery Court into In re: Pivotal Software, Inc.
Stockholders Litigation (Civil Action No. 2020-0440-KSJM).
The complaint names as defendants the Company, VMware, Inc.,
Michael S. Dell, and certain officers of Pivotal. The plaintiffs
generally allege that the defendants breached their fiduciary
duties to the former holders of Pivotal Class A Common Stock in
connection with VMware, Inc.'s acquisition of Pivotal by allegedly
causing Pivotal to enter into a transaction that favored the
interests of Pivotal's controlling stockholders at the expense of
such former stockholders.
The plaintiffs seek, among other remedies, a judicial declaration
that the defendants breached their fiduciary duties and an award of
damages, fees, and costs.
Dell Technologies Inc. provides computer products. The Company
offers laptops, desktops, tablets, workstations, servers, monitors,
printers, gateways, software, storage, and net working products.
Dell Technologies serves customers worldwide. Dell Technologies
Inc. was founded in 1984 and is headquartered in Round Rock, Texas.
EVMO INC: Bid to Stay Vanbecelaere Securities Class Suit Pending
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EVmo, Inc.said in its Form 10-K report filed with the U.S.
Securities and Exchange Commission on March 31, 2021, for the
fiscal year ended December 31, 2020, that the motion to stay the
securities class action suit entitled, Michael Vanbecelaere v.
YayYo, Inc, et al., is pending.
Two actions styled as securities class actions were filed in the
Superior Court of the State of California for the County of Los
Angeles, on July 22, 2020 and July 23, 2020, respectively.
The plaintiffs to each action individually alleged
misrepresentations and material omissions in the registration
statement on Form S-1 that the Company filed with the SEC in
connection with its initial public offering, which was declared
effective on November 13, 2019, claiming violations of Sections 11
and 15 of the Securities Act.
Each action purported to bring a securities class action against
the Company; one of the two lawsuits was dismissed on the basis
that the lead plaintiff in one of the actions was not a suitable
class representative, and that plaintiff later joined the lawsuit
brought by the other one.
In its answer, the Company denied liability and asserted that it
accurately and completely disclosed all material facts and
occurrences, including adverse ones, in its registration statement,
related public filings and other public statements, and further
asserted that the alleged violations of Sections 11 and 15 of the
Securities Act are baseless.
Each of the parties to this litigation has mutually agreed to
request a stay of the proceedings pending a mediation that is
tentatively scheduled for April 29, 2021.
EVmo is a holding company operating principally through two
wholly-owned subsidiaries: (i) Rideshare Car Rentals LLC, a
Delaware limited liability company, and (ii) Distinct Cars, LLC, a
Delaware limited liability company. Rideshare offers an online
bookings platform to service the ridesharing and delivery gig
industries. Distinct Cars maintains a fleet of passenger vehicles
and transit vans for the last-mile logistical space for rent to the
company's customers. The company is based in Beverly Hills,
California.
EVMO INC: Bid to Stay YayYo Securities Suit Pending
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EVmo, Inc.said in its Form 10-K report filed with the U.S.
Securities and Exchange Commission on March 31, 2021, for the
fiscal year ended December 31, 2020, that the request to stay the
consolidated securities class action suit entitled, In Re YayYo
Securities Litigation, is pending.
Two actions styled as securities class actions were filed in the
United States District Court for the Central District of
California, on September 9, 2020 (Hamlin v. YayYo) and September
18, 2020, respectively (Koch v. YayYo et al).
The plaintiffs to each action individually alleged
misrepresentations and material omissions in the registration
statement on Form S-1 that the Company filed with the SEC in
connection with its initial public offering, which was declared
effective on November 13, 2019, claiming violations of Sections 11
and 15 of the Securities Act.
Each purported action involved securities class action claims. The
district court consolidated the two actions, and the Hamlin action
was since dismissed.
The district court indicated in its order consolidating the actions
that the new caption for the case would be "In Re YayYo Securities
Litigation."
The Company filed an answer, denying liability and asserted that it
accurately and completely disclosed all material facts and
occurrences, including adverse ones, in its registration statement,
related public filings and other public statements, and further
asserted that the alleged violations of Sections 11 and 15 of the
Securities Act are baseless.
Each of the parties to this litigation has mutually agreed to
request a stay of the proceedings pending a mediation that is
tentatively scheduled for April 29, 2021 in which a global
settlement, also involving the plaintiff class representative
identified in the case Michael Vanbecelaere v. YayYo, Inc, et al.
EVmo is a holding company operating principally through two
wholly-owned subsidiaries: (i) Rideshare Car Rentals LLC, a
Delaware limited liability company, and (ii) Distinct Cars, LLC, a
Delaware limited liability company. Rideshare offers an online
bookings platform to service the ridesharing and delivery gig
industries. Distinct Cars maintains a fleet of passenger vehicles
and transit vans for the last-mile logistical space for rent to the
company's customers. The company is based in Beverly Hills,
California.
EVOLUS INC: Appointment of Lead Plaintiff in Jeuveau Suit Pending
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Evolus, Inc. said in its Form 10-K report filed with the U.S.
Securities and Exchange Commission on March 25, 2021, for the
fiscal year ended December 31, 2020, that the appointment of a lead
plaintiff in the consolidated putative securities class action suit
entitled, In re Evolus Inc. Securities Litigation, No.
1:20-cv-08647 (PGG), is pending.
On October 16 and 28, 2020, two putative securities class action
complaints were filed in the U.S. District Court for the Southern
District of New York by putative Evolus shareholders Armin
Malakouti and Clinton Cox, respectively, naming us and certain of
the company's officers as defendants.
The complaints assert violations of Sections 10(b) and 20(a) of the
Securities Exchange Act of 1934, and Rule 10b-5 promulgated
thereunder, claiming that the defendants made false and materially
misleading statements and failed to disclose material adverse facts
related to the Company's acquisition of the right to sell
Jeuveau(R), the International Trade Commission (ITC) Action and
risks related to the ITC Action.
The complaints assert a putative class period of February 1, 2019
to July 6, 2020.
The court consolidated the actions on November 13, 2020, under the
caption In re Evolus Inc. Securities Litigation, No. 1:20-cv-08647
(PGG).
Four putative shareholders (or groups of shareholders) have since
moved to be appointed lead plaintiff. Under the court's November
13, 2020 order, defendants need not move, answer, or otherwise
respond to the complaints until 60 days after a lead plaintiff is
appointed and files a consolidated, amended complaint.
Evolus, Inc. in a performance beauty company with a
customer-centric approach focused on delivering breakthrough
products in the self-pay aesthetic market. The company is based in
Newport Beach, California.
F-STAR THERAPEUTICS: Settlement Agreement Entered in Franchi Suit
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F-Star Therapeutics, Inc. said in its Form 10-K report filed with
the U.S. Securities and Exchange Commission on March 30, 2021, for
the fiscal year ended December 31, 2020, that a settlement
agreement has been executed in the purported class action suit
entitled, Adam Franchi v. Spring Bank Pharmaceuticals, Inc. et al,
Case No. 1:20-cv-01198.
On November 20, 2020, Spring Bank Pharmaceuticals, Inc. acquired
all of the outstanding capital stock of F-star Therapeutics
Limited. While Spring Bank Pharmaceuticals, Inc. was the legal
acquirer of F-star Therapeutics Limited in the transaction, F-star
Therapeutics Limited was deemed to be the acquiring company for
accounting purposes.
On September 8, 2020, in the United States District Court for the
District of Delaware, a purported class action (Adam Franchi v.
Spring Bank Pharmaceuticals, Inc. et al, Case No. 1:20-cv-01198 (D.
Del.)) was filed against Spring Bank, members of Spring Bank's
Board of Directors and F-star Ltd, alleging violations of Section
14(a) of the Exchange Act and Rule 14a-9 promulgated thereunder,
and as against the individual defendants, alleging violations of
Section 20(a) of the Exchange Act.
This complaint alleged that the defendants made materially
misleading disclosures in the Form S-4 by allegedly omitting
material information with respect to (i) financial projections
relating to Spring Bank and F-star Ltd, (ii) the confidentiality
agreements entered into by Spring Bank prior to its engagement of
Ladenburg, (iii) the process leading up to the execution of the
Exchange Agreement and (iv) any financial analyses performed by
Ladenburg.
The plaintiff in Franchi sought declaratory and injunctive relief
to enjoin the Exchange; or in the event of consummation of the
Exchange, rescissory damages against the defendants; filing by the
defendants of a Registration Statement deemed not to be materially
misleading by the plaintiff; and attorneys' and experts' fees.
F-Star said, "While the Company believes there is no merit to this
complaint, in March 2021, the Company executed a settlement
agreement relating to this matter for an amount that is immaterial
to the financial statements."
F-Star Therapeutics, Inc. is a clinical-stage biopharmaceutical
company dedicated to developing next generation immunotherapies to
transform the lives of patients with cancer. The company is based
in Cambridge, United Kingdom.
FAT BRANDS: Rojany Files Request for Dismissal of Class Suit
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FAT Brands Inc. said in its Form 10-K report filed with the U.S.
Securities and Exchange Commission on March 29, 2021, for the
fiscal year ended December 27, 2020, that plaintiff in Rojany v.
FAT Brands, Inc., Case No. BC708539, filed a request for dismissal
of this action, with prejudice, in its entirety.
On June 7, 2018, FAT Brands, Inc., Andrew Wiederhorn, Ron Roe,
James Neuhauser, Edward H. Rensi, Marc L. Holtzman, Squire Junger,
Silvia Kessel, Jeff Lotman, Fog Cutter Capital Group Inc., and
Tripoint Global Equities, LLC were named as defendants in a
putative securities class action lawsuit entitled Rojany v. FAT
Brands, Inc., Case No. BC708539, in the Superior Court of the State
of California, County of Los Angeles.
Since the time that the case was initially filed, plaintiffs Alden,
Hazelton-Harrington and Marin, voluntarily dismissed their claims
without prejudice, leaving only plaintiff Rojany as the putative
class representative plaintiff.
On January 29, 2020, Plaintiff filed a Motion for Class
Certification. On October 8, 2020, the Court denied Plaintiff's
Motion for Class Certification.
On January 6, 2021, the parties executed a Settlement Agreement and
Mutual Release pursuant to which plaintiff agreed to dismiss his
individual claims against defendants with prejudice in exchange for
a payment by or on behalf of defendants of $50,000.
On January 27, 2021, plaintiff filed a request for dismissal of
this action, with prejudice, in its entirety.
FAT Brands Inc., a multi-brand franchising company, acquires,
markets, and develops fast casual and casual dining restaurant
concepts. The company was founded in 2017 and is headquartered in
Beverly Hills, California. FAT Brands Inc. is a subsidiary of Fog
Cutter Capital Group Inc.
FENNEC PHARMA: Chapman Putative Class Suit Underway
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Fennec Pharmaceuticals, Inc. said in its Form 10-K report filed
with the U.S. Securities and Exchange Commission on March 30, 2021,
for the fiscal year ended December 31, 2020, that the company
continues to defend a putative class action suit entitled, Chapman
v. Fennec Pharmaceuticals Inc.
On September 2, 2020, a putative class action lawsuit, Chapman v.
Fennec Pharmaceuticals Inc., was filed against the company, its
Chief Executive Officer, Rostislav Raykov, and its Chief Financial
Officer, Robert Andrade, in the United States District Court for
the Middle District of North Carolina.
The complaint alleged that prior to the company's August 10, 2020
receipt of a Complete Response Letter (CRL) from the Food and Drug
Administration (FDA) concerning the company's New Drug Approval
(NDA) for PEDMARKTM, the company made materially false or
misleading statements and failed to disclose material facts about
the status of its PEDMARKTM manufacturing facility, its compliance
with current good manufacturing practices, and the impact its
status and compliance would have on regulatory approval for
PEDMARKTM.
On December 3, 2020, the court appointed a lead plaintiff to
represent the putative class. On February 1, 2021, the lead
plaintiff filed an amended complaint. The amended complaint added
members of our board of directors as defendants, asserts a putative
class period from December 10, 2018 through August 10, 2020, makes
allegations similar to those in the original complaint, and claims
the defendants violated Section 10(b) of the Securities Exchange
Act of 1934. Defendants' response to the amended complaint was
submitted on March 3, 2021.
Fennec said, "We believe that the suit is without merit and intend
to defend it vigorously. We cannot predict the outcome of this
suit. Failure by us to obtain a favorable resolution of the suit
could have a material adverse effect on our business, results of
operations and financial condition. We have not recorded a
liability as of December 31, 2020, because we believe a potential
loss is not probable or reasonably estimable given the preliminary
nature of the proceedings."
Fennec Pharmaceuticals Inc. is a biopharmaceutical company focused
on the development of Sodium Thiosulfate for the prevention of
platinum-induced ototoxicity in pediatric cancer patients.
FORTRESS BIOTECH: Cushman Putative Securities Class Suit Underway
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Fortress Biotech, Inc. said in its Form 10-K report filed with the
U.S. Securities and Exchange Commission on March 31, 2021, for the
fiscal year ended December 31, 2020, that the company continues to
defend a purported securities class action suit entitled, Cushman
v. Fortress Biotech, Inc., et al., Case No. 1:20-cv-05767.
In November 2020, a purported securities class action complaint was
filed in the U.S. District Court for the Eastern District of New
York, putatively on behalf of all shareholders who purchased or
otherwise acquired Fortress securities between December 11, 2019
and October 9, 2020 (the Class Period), and who were allegedly
damaged in connection therewith.
The case is captioned Cushman v. Fortress Biotech, Inc., et al.,
Case No. 1:20-cv-05767, and names as defendants the Company and two
of its officers.
The complaint alleges that, throughout the Class Period, the
Company made false and/or misleading statements and/or failed to
disclose various facts and circumstances with respect to a New Drug
Application filed by Avenue Therapeutics, Inc., the company's
partner company, regarding IV Tramadol, Avenue's lead product
candidate.
The complaint alleges violations of the Securities Exchange Act of
1934 and Rule 10b-5 promulgated thereunder, and seeks damages as
well as attorneys' fees, expert fees and other costs.
Fortress said, "The action is in the early stages of litigation,
and the Company intends to vigorously contest the claims."
Fortress Biotech, Inc. is a biopharmaceutical company dedicated to
acquiring, developing and commercializing pharmaceutical and
biotechnology products and product candidates, which the company do
at the Fortress level, at the company's majority-owned and
majority-controlled subsidiaries and joint ventures, and at
entities the company founded and in which it maintains significant
minority ownership positions. The company is based in New York, New
York.
FUBOTV INC: Facing Said-Ibrahim and Lee Class Actions
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FuboTV Inc. said in its Form 10-K report filed with the U.S.
Securities and Exchange Commission on March 25, 2021, for the
fiscal year ended December 31, 2020, that the company is facing
class action suits entitled, Said-Ibrahim v. fuboTV Inc., David
Gandler, Edgar M. Bronfman Jr., & Simone Nardi, Case No.
21-cv-01412 (S.D.N.Y) & Lee v. fuboTV, Inc., David Gandler, Edgar
M. Bronfman Jr., & Simone Nardi, Case No. 21-cv-01641 (S.D.N.Y.)
On February 17, 2021, putative shareholders Wafa Said-Ibrahim and
Adhid Ibrahim filed a class action lawsuit against the Company,
co-founder and CEO David Gandler, Executive Chairman Edgar M.
Bronfman Jr., and CFO Simone Nardi.
Plaintiffs allege that Class Action Defendants violated federal
securities laws by disseminating false and misleading statements
regarding the Company's financial health and operating condition,
including the Company's ability to grow subscription levels, future
profitability, seasonality factors, cost escalations, ability to
generate advertising revenue, valuation, and prospects of entering
the online sports wagering market. The Plaintiffs allege that Class
Action Defendants violated Section 10(b) of the Securities Exchange
Act of 1934 and Rule 10b-5 thereunder, as well as Section 20(a) of
the Exchange Act, and seek damages and other relief.
Plaintiffs seek to pursue this claim on behalf of themselves as
well as all other persons who purchased or otherwise acquired
Company securities publicly traded on the New York Stock Exchange
(NYSE) between March 23, 2020 and January 4, 2021, inclusive, and
who were allegedly damaged thereby.
On February 24, 2021, putative shareholder Steven Lee filed a
nearly identical class action lawsuit against the same Defendants.
Pursuant to the Private Securities Litigation Reform Act of 1995,
any member of the purported class who wishes to serve as lead
plaintiff must file a motion by April 19, 2021.
The court likely also will consolidate the two lawsuits (and any
other future lawsuits that assert substantially the same claims).
After the court decides a consolidation motion, he will appoint a
lead plaintiff and lead counsel as soon as practicable thereafter.
The lead plaintiff then will file an amended, consolidated
complaint, and Defendants will file a motion to dismiss the
complaint.
The Company believes the claims alleged in both lawsuits are
without merit and intends to vigorously defend these litigations.
FuboTV Inc. is a sports-first, live TV streaming company, offering
subscribers access to tens of thousands of live sporting events
annually as well as leading news and entertainment content. The
compoany's platform, fuboTV, allows customers to access content
through streaming devices and on SmartTVs, mobile phones, tablets,
and computers. The company is based in New York, New York.
GENIUS BRANDS: Bid to Dismiss Consolidated Securities Suit Pending
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Genius Brands International, Inc. said in its Form 10-K report
filed with the U.S. Securities and Exchange Commission on March 31,
2021, for the fiscal year ended December 31, 2020, that the motion
to dismiss the consolidated putative class action suit entitled, In
re Genius Brands International, Inc. Securities Litigation, is
pending.
On August 18, 2020, the Company and its Chief Executive Officer
Andy Heyward were named as defendants in a putative class action
lawsuit filed in the U.S. District Court for the Central District
of California and styled Salvador Verdin v. Genius Brands
International, Inc. and Andy Heyward, Case No.
2:20-cv-07457-DDP-PJW.
The company was later served with a similar lawsuit Sumit Garg v.
Genius Brands International, Inc. and Andy Heyward, Case No.
2:20-cv-07764.
Both suits allege generally that defendants violated Sections 10(b)
and 20(a) of the Securities Exchange Act of 1934 by making
materially false or misleading statement regarding the Company's
business and business prospects, artificially inflating the
Company's stock price.
Plaintiff seeks unspecified damages on behalf of the alleged class.
The two above-referenced securities suits have been consolidated
into a single proceeding before Judge Fischer in the U.S. District
Court for the Central District of California.
The proceeding will now be known as In re Genius Brands
International, Inc. Securities Litigation. The amended complaint in
this action was filed on February 1, 2021.
On March 17, 2021, the defendants filed a motion to dismiss the
amended complaint.
Briefing that motion is, by court-ordered schedule, expected to
extend into June 2021, with a hearing currently scheduled for July
5, 2021. Pending resolution of the motion to dismiss, neither
discovery nor other substantive proceedings are expected.
Genius Brands International, Inc., is a content and brand
management company. The Company provides entertaining and enriching
content and products with a purpose for toddlers to tweens. The
Company produces original content and licenses the rights to that
content to a range of partners. The company is based in Beverly
Hills California.
GENTING NEW YORK: Roberts Appeals Ruling in Labor Suit to 2nd Cir.
------------------------------------------------------------------
Plaintiffs Gerald Roberts, et al., filed an appeal from a court
ruling entered in the lawsuit entitled GERALD ROBERTS, STEPHEN
JOHNSON, CHRISTOPHER MCLEOD, DAVID SHAW, ANITA JOHNSON, CHRISTOPHER
HUMPHRIES, JEFFREY WILKINS, LATANYA MARTIN-RICE, LAURA SANCHEZ,
LUCY MUNOZ, NATALIO HERRERA, RADIKA KANHAI, ROGER SIERRA, YOO SUNG
KIM, CHRISTINA LAMBRU, IRENE TSOROROS, MARIA DIAZ, CYNTHIA DURAN,
JASPER JONES, ALLEN CHERFILS, LISA LUNDSREN, TERESA AREVALO, SYED
A. HAQUE, AHMED TALHA, OLIE AHMED, JAMAL AHMED, SORWAR HUSSAIN, LUZ
OSPINA, JOHNNY MURILLO, THOMAS DORGAN, SENECA SCOTT, ERIC LEE,
WILLIAM BOONE, MARLENNI MINAYA, ISABEL PENA, CELESTE BROWN-POLITE,
DWIGHT CURRY, RAWLO BENFIELD, JOSEPH BROWN, SANDRA MILENA-MARTINEZ,
MARINO CANO, ABIGAIL APPIAH-OTCHERE, DALIA TOPPIN, ANA MOREIRA,
BETSABE TORRES, LORNA BENT, OSMOND WALKER, CONRAD HALL, VISHWANI
SUKHRAM, ANNE GRONATA, BRUCE SMITH, NESTOR AMAYA, GUIDO ANTONIO
RODRIGUEZ, WILLIE BALLENTINE, PETER VONTAS, FELIX GONZALEZ,
MICHELLE LATIMER, VARISE WALLER, SOOKIA FREEMAN, CAMARCA FLOWERS,
ANTONIO SALCEDO, JOEVEN CORTEZ, and JUDITH ALLEN, on behalf of
themselves and all others similarly situated, Plaintiffs v. GENTING
NEW YORK LLC, d/b/a RESORTS WORLD CASINO NEW YORK CITY, Defendant,
Case No. 14-cv-257, in the U.S. District Court for the Eastern
District of New York (Brooklyn).
As previously reported in the Class Action Reporter, the lawsuit is
brought on behalf of similarly situated current and former
employees working in Aqueduct Buffet pursuant to the Worker
Adjustment Retraining and Notification Act and the New York Labor
Law for failure to provide notice as required under the Act and
seek to recover damages associated with the failure to provide the
notice required under the WARN Act and NY WARN Act.
The Plaintiffs are seeking a review of the Court's Memorandum and
Order dated March 12, 2021, and Judgment dated March 15, 2021,
denying their motion for summary judgment, granting Defendant's
motion for summary judgment, and dismissing the amended complaint.
The appellate case is captioned as Roberts v. Genting New York LLC,
Case No. 21-833, in the United States Court of Appeals for the
Second Circuit, filed on March 30, 2021.[BN]
Plaintiffs-Appellants Gerald Roberts, Stephen Johnson, Christopher
McLeod, David Shaw, Seneca Scott, Latanya Martin-Rice, Marlenni
Minaya, Roger Sierra, Anne Gronata, Thomas Dorgan, Laura Sanchez,
Johnny Murillo, Willie Ballentine, Isabel Pena, Sorwar Hussain,
Anita Johnson, Peter Vontas, Lorna Bent, Jamal Ahmed, Christopher
Humphries, William Boone, Ana Moreira, Michelle Latimer, Vishwani
Sukhram, Felix Gonzalez, Joeven Cortez, Camarca Flowers, Syed A.
Haque, Irene Tsororos, Christina Lambru, Sandra Milena-Martinez,
Yoon Sung Kim, Maria Diaz, Olie Ahmed, Bruce Smith, Antonio
Salcedo, Natalio Herrera, Lisa Lundsren, Conrad Hall, Cynthia
Duran, Celeste Brown-Polite, Judith Allen, Luz Ospina, Abigail
Appiah-Otchere, Betsabe Torres, Teresa Arevalo, Osmond Walker,
Marino Cano, Eric Lee, Dalia Toppin, Nestor Amaya, Allen Cherfils,
Joseph Brown, Ahmed Talha, Jasper Jones, Jeffrey Wilkins, Lucy
Munoz, Varise Waller, Sookia Freeman, Guido Antonio Rodriguez,
Radika Kanhai, Dwight Curry, and Rawlo Benfield, on behalf of
themselves and all others similarly situated, are represented by:
Jesse Curtis Rose, Esq.
THE ROSE LAW GROUP, PLLC
3109 Newtown Avenue
Astoria, NY 11102
Telephone: (718) 989-1864
E-mail: jrose@tpglaws.com
Defendant-Appellee Genting New York LLC, DBA Resorts World Casino
New York City, is represented by:
Jonathan M. Sabin, Esq.
KANE KESSLER, P.C.
600 3rd Avenue
New York, NY 10016
Telephone: (212) 519-5113
E-mail: jsabin@kanekessler.com
GIGCAPITAL3 INC: Continues to Defend Shingote Putative Class Suit
------------------------------------------------------------------
GigCapital3, Inc. said in its Form 10-K report filed with the U.S.
Securities and Exchange Commission on March 31, 2021, for the
fiscal year ended December 31, 2020, that the company continues to
defend a putative class action suit entitled, Shingote v.
GigCapital3, Inc., et al. (Case No. 650109-2021).
On January 7, 2021, a purported stockholder of the Company filed a
putative class action complaint in the Supreme Court of the State
of New York, captioned Shingote v. GigCapital3, Inc., et al. (Case
No. 650109-2021) on behalf of a purported class of stockholders.
The lawsuit names the Company and each of its current directors,
Dr. Avi Katz, Neil Miotto, John Mikulsky, Dr. Raluca Dinu, Andrea
Betti-Berutto, and Peter Wang, as defendants.
The lawsuit alleges that the individual defendants breached their
fiduciary duties by, among other things, failing to take
appropriate steps to maximize the value of the Company and failing
to disclose all material information necessary for the stockholders
to make an informed decision on whether to vote their shares in
favor of the business combination with Lightning.
The lawsuit also alleges that the Company aided and abetted the
individual defendants' breaches of fiduciary duty.
The lawsuit seeks, among other relief, injunctive relief enjoining
the business combination or recission of the business combination
and an order directing the defendants to amend the Company’s
Registration Statement on Form S-4.
The lawsuit also purports to seek a declaration that the defendants
violated their fiduciary duties, damages, and recovery of the costs
of the action, including reasonable attorneys' and experts' fees.
The lawsuit is in a preliminary stage.
GigCapital3, Inc. operates as a private-to-public equity company.
The Company focuses on technology, media, and telecommunications
sectors. GigCapital3 serves customers worldwide. The company is
based in Palo Alto, California.
GIGCAPITAL3 INC: Ryan Purported Class Action Underway
-----------------------------------------------------
GigCapital3, Inc. said in its Form 10-K report filed with the U.S.
Securities and Exchange Commission on March 31, 2021, for the
fiscal year ended December 31, 2020, that the company continues to
defend a putative class action suit entitled, Ryan v. GigCapital3,
Inc., et al.
On February 8, 2021, a purported stockholder of the Company filed a
putative class action complaint in the United States District Court
of the Northern District of California, captioned Ryan v.
GigCapital3, Inc., et al. (Case No. 5:21-cv-00969) on behalf of a
purported class of stockholders.
The lawsuit names the Company and Dr. Katz, Dr. Dinu, and Messrs.
Betti-Berutto, Mikulsky, Miotto and Wang, as defendants.
The lawsuit alleges that the defendants violated Section 14(a) of
the Exchange Act by approving the dissemination of the Company's
Registration Statement on Form S-4 relating to the business
combination with Lightning, which the complaint contends, among
other things, failed to provide critical information regarding the
financial projections of the Company.
The lawsuit also alleges that the individual defendants violated
Section 20(a) of the Exchange Act because they had the power to
influence and control, and did influence and control the
decision-making of the Company including the dissemination of the
Company's Registration Statement.
The lawsuit seeks, among other relief, injunctive relief enjoining
the business combination or recission of the business combination.
The lawsuit also purports to seek a declaration that defendants
Sections 14(a) and 20(a) of the Exchange Act and recovery of the
costs of the action, including reasonable attorneys' and experts'
fees.
The lawsuit is in a preliminary stage.
GigCapital3, Inc. operates as a private-to-public equity company.
The Company focuses on technology, media, and telecommunications
sectors. GigCapital3 serves customers worldwide. The company is
based in Palo Alto, California.
GOL INTELLIGENT: Class Action Over Misleading Disclosure Underway
-----------------------------------------------------------------
Gol Intelligent Airlines Inc. said in its Form 20-F report filed
with the U.S. Securities and Exchange Commission on March 29, 2021,
for the fiscal year ended December 31, 2020, that the company
continues to defend a class action suit relating to the company's
misleading disclosure.
In September 2020, a class action complaint was filed against the
company and its chief executive officer and chief financial officer
in the federal courts of New York.
The complaint has since been amended to include the chairman of our
board of directors and the members of the company's audit
committee.
The plaintiff is claiming alleged losses resulting from alleged
misleading disclosure.
Gol said, "We are vigorously contesting the complaint and believe
that there is no merit to these claims. Consequently, we have not
made any provisions related to this matter."
Gol Intelligent Airlines Inc. is a Brazilian airline based in Rio
de Janeiro, Brazil. It operates in two segments, flight
transportation which offers air transportation services and the
smiles loyalty program segment that includes redemption of miles
traveled for purchasing flight tickets.
GRANITE CONSTRUCTION: Bid to Nix Layne Merger Related Suit Pending
------------------------------------------------------------------
Granite Construction Incorporated said in its Form 10-K report
filed with the U.S. Securities and Exchange Commission on March 30,
2021, for the fiscal year ended December 31, 2020, that the
company's demurrer seeking to dismiss the amended complaint in the
putative class action suit related to the Layne Christensen Company
merger, is pending.
On June 14, 2018, the company completed the $349.8 million
acquisition of Layne Christensen Company, a U.S.-based global water
management, infrastructure services and drilling company in a
stock-for-stock merger which was comprised of $321.0 million in
Company common stock, $28.8 million in cash to settle all
outstanding stock options, restricted stock awards and unvested
Layne performance shares and the company assumed $191.5 million in
convertible notes at fair value.
On October 23, 2019, a putative class action lawsuit was filed in
the Superior Court of California, County of Santa Cruz against the
Company, James H. Roberts, the company's former President and Chief
Executive Officer, Laurel Krzeminski, the company's former Chief
Financial Officer, and the then-serving Board of Directors on
behalf of persons who acquired shares of Company common stock in
the Company's June 2018 merger with Layne.
The complaint asserts causes of action under the Securities Act of
1933 and alleges that the registration statement and prospectus
were negligently prepared and included materially false and
misleading statements and failed to disclose facts required to be
disclosed.
On August 10, 2020, the Court sustained the company's demurrer
dismissing the complaint with leave to amend.
On September 16, 2020, the plaintiff filed an amended complaint.
Granite said, "We have filed a demurrer seeking to dismiss the
amended complaint. We are in the preliminary stages of the
litigation and, as a result, we cannot predict the outcome or
consequences of the case, which we intend to defend vigorously."
Granite Construction Incorporated is one of the largest diversified
infrastructure companies in the United States, engaged in
heavy-civil infrastructure projects including the construction of
streets, roads, highways, mass transit facilities, airport
infrastructure, bridges, trenchless and underground utilities,
power-related facilities, water-related facilities, well drilling,
utilities, tunnels, dams and other infrastructure-related projects,
site preparation, mining services, and infrastructure services for
residential development, energy development, commercial and
industrial sites, and other facilities, as well as construction
management professional services. The company had four reportable
business segments: Transportation, Water, Specialty and Materials.
The company is based in Watsonville, California.
GRANITE CONSTRUCTION: Plaintiff Bid for Class Certification Granted
-------------------------------------------------------------------
Granite Construction Incorporated said in its Form 10-K report
filed with the U.S. Securities and Exchange Commission on March 30,
2021, for the fiscal year ended December 31, 2020, that the Court
granted Plaintiff's motion for class certification.
On August 13, 2019, a securities class action was filed in the
United States District Court for the Northern District of
California against the Company, James H. Roberts, our former
President and Chief Executive Officer, and Jigisha Desai, the
company's former Senior Vice President and Chief Financial Officer
and current Executive Vice President and Chief Strategy Officer.
An Amended Complaint was filed on February 20, 2020 that, among
other things, added Laurel Krzeminski, our former Chief Financial
Officer, as a defendant. The amended complaint is brought on behalf
of an alleged class of persons or entities that acquired the
company's common stock between April 30, 2018 and October 24, 2019,
and alleges claims arising under Sections 10(b) and 20(a) of the
Securities Exchange Act of 1934 and Rule 10b-5 thereunder.
The Amended Complaint seeks damages based on allegations that in
the Company's SEC filings the defendants made false and/or
misleading statements and failed to disclose material adverse facts
about the Company's business, operations and prospects.
On May 20, 2020, the Court denied, in part, the Defendants' Motion
to Dismiss the Amended Complaint.
On January 21, 2021, the Court granted Plaintiff's motion for class
certification.
Granite said, "We are in the pretrial stages of the litigation, and
we cannot predict the outcome or consequences of this case, which
we intend to defend vigorously."
Granite Construction Incorporated is one of the largest diversified
infrastructure companies in the United States, engaged in
heavy-civil infrastructure projects including the construction of
streets, roads, highways, mass transit facilities, airport
infrastructure, bridges, trenchless and underground utilities,
power-related facilities, water-related facilities, well drilling,
utilities, tunnels, dams and other infrastructure-related projects,
site preparation, mining services, and infrastructure services for
residential development, energy development, commercial and
industrial sites, and other facilities, as well as construction
management professional services. The company had four reportable
business segments: Transportation, Water, Specialty and Materials.
The company is based in Watsonville, California.
HEALTHEQUITY INC: Pact Entered in Putative Class Suit vs. WageWorks
-------------------------------------------------------------------
HealthEquity, Inc. said in its Form 10-K report filed with the U.S.
Securities and Exchange Commission on March 31, 2021, for the
fiscal year ended January 31, 2021, that counsel for all parties
involved in the putative class action suit filed against WageWorks,
Inc., signed a term sheet to settle all claims for $30.0 million,
of which WageWorks will contribute $5.0 million and its insurers
will pay the remaining $25.0 million.
On March 9, 2018, a putative class action was filed in the U.S.
District Court for the Northern District of California.
On May 16, 2019, a consolidated amended complaint was filed by the
lead plaintiffs asserting claims under Sections 10(b) and 20(a) of
the Securities Exchange Act of 1934, as amended, against WageWorks,
its former Chief Executive Officer and its former Chief Financial
Officer on behalf of purchasers of WageWorks common stock between
May 6, 2016 and March 1, 2018.
The complaint also alleges claims under the Securities Act of 1933,
as amended, arising from WageWorks' June 19, 2017 common stock
offering against those same defendants, as well as the members of
its board of directors at the time of that offering.
On February 11, 2021, counsel for all parties involved in this
lawsuit signed a term sheet to settle all claims for $30.0 million,
of which WageWorks will contribute $5.0 million and its insurers
will pay the remaining $25.0 million.
The $30.0 million settlement and related $25.0 million insurance
recovery are included within accrued liabilities and other current
assets, respectively, on the January 31, 2021 consolidated balance
sheet, and the net $5.0 million expense is included within merger
integration expense on the January 31, 2021 consolidated statement
of operations and comprehensive income.
The settlement is subject to notice to class members and approval
of the Court.
HealthEquity, Inc. is an American health care company that is
designated as a non-bank health savings trustee by the IRS. This
designation allows HealthEquity to be the custodian of health
savings accounts regardless of which financial institution the
funds are deposited with. The company is based in Draper, Utah.
HOME DEPOT: Denial of Dismissal/Stay Bid in Jackson Suit Affirmed
-----------------------------------------------------------------
In the case, GEORGE W. JACKSON, on behalf of himself and others
similarly situated, Third-Party Plaintiff v. HOME DEPOT, U.S.A.,
INC. and CAROLINA WATER SYSTEMS, INC., Third-Party Defendants, the
Court of Appeals of North Carolina affirms the trial court's order
denying Home Depot's motion to dismiss or stay in favor of
arbitration.
In July 2014, Third-Party Plaintiff George W. Jackson entered into
agreements with Third-Party Defendants Carolina Water Systems, Inc.
("CWS") and Home Depot for the purchase and installation of a
water-treatment system. The events leading up to these agreements
form the basis of Jackson's complaint in the case. However, the
issue before the Court on appeal is Home Depot's attempt to enforce
an arbitration agreement that it asserts applies to Jackson's
claims.
On Aug. 6, 2014, Jackson and John Blum, the President of CWS,
executed a document entitled "Home Improvement Agreement: Approval
of Completed Installation." Blum signed the document above a
signature line that read: "Professional/Authorized Representative
on Home Depot's Behalf." The Home Depot Agreement contained a
merger clause. It also provided for a separate financing
agreement. The Home Depot Agreement did not contain any language
regarding arbitration.
At some point, Jackson entered into an agreement ("Card Agreement")
with Citibank, N.A. to open an account for a Home Depot-branded
credit card. The parties do not contend that Home Depot was a
signatory to the Card Agreement. The Card Agreement provided an
arbitration clause.
On June 6, 2016, Citibank filed suit against Jackson in Mecklenburg
County District Court seeking, inter alia, to collect the unpaid
balance due on the Home Depot credit card.
On Aug. 26, 2016, Jackson filed his answer, in which he generally
denied Citibank's allegations, asserted various affirmative
defenses, brought a class action counterclaim against Citibank, and
brought third-party class action claims against Home Depot and CWS.
Jackson's third-party class action claims against Home Depot and
CWS arose from alleged violations of the North Carolina statutes
prohibiting referral sales and unfair or deceptive trade practices.
Thereafter, on Sept. 23, 2016, Citibank voluntarily dismissed its
claims against Jackson.
On Oct. 12, 2016, Home Depot filed notice of removal of Jackson's
third-party suit from state court to the U.S. District Court for
the Western District of North Carolina. Sixteen days later, Home
Depot filed a motion in federal court to dismiss Jackson's claims
or, in the alternative, to stay Jackson's claims in favor of
arbitration.
On Nov. 8, 2016, Jackson filed a motion in the federal court to
remand the case to the state court. On Dec. 2, 2016, Home Depot
filed another motion in federal court to dismiss or stay in favor
of arbitration. On March 21, 2017, the federal district court
entered its order granting Jackson's motion and remanding the case
to Mecklenburg County Superior Court. Home Depot appealed the
remand order to the United States Court of Appeals for the Fourth
Circuit, which affirmed the federal district court's order on Jan.
22, 2018.
On April 23, 2018, Home Depot filed a petition for writ of
certiorari with the United States Supreme Court, seeking review of
the Fourth Circuit's ruling. Meanwhile, while the matter was on
remand in Mecklenburg County Superior Court, on May 10, 2018, Home
Depot and CWS filed a new motion to dismiss or stay in favor of
arbitration. The U.S. Supreme Court granted Home Depot's petition
for writ of certiorari on Sept. 27, 2018, and on May 28, 2019, it
issued an opinion affirming the Fourth Circuit's ruling.
On June 19, 2018, the Chief Justice of the North Carolina Supreme
Court designated the matter as an "exceptional civil case" pursuant
to Rule 2.1 of the General Rules of Practice, and assigned the Hon.
Forrest D. Bridges to preside over the case.
On Sept. 6, 2019, Home Depot and CWS' motion to dismiss or stay in
favor of arbitration came on for hearing before Judge Bridges in
Mecklenburg County Superior Court. On Oct. 21, 2019, the trial
court entered its order denying the motion. Home Depot filed its
notice of appeal on Feb. 20, 2020.
On appeal, Home Depot argues that the trial court erred in denying
its motion to dismiss or stay in favor of arbitration. It claims
that the trial court erred by (1) concluding that Home Depot was
not entitled to enforce the arbitration agreement found in the Card
Agreement, either as a third-party beneficiary or under the
doctrine of equitable estoppel; (2) failing to make findings of
fact regarding the Card Agreement; and (3) concluding that a
novation occurred upon execution of the Home Depot Agreement.
I. Existence of an Arbitration Agreement
Of the various contracts at issue in the case, the Home Depot
Agreement is the only one to which Home Depot is a signatory, and
the Home Depot Agreement does not contain an arbitration clause.
Nevertheless, Home Depot argues that it is entitled to enforce the
arbitration agreement found in the Card Agreement, either as a
third-party beneficiary or under the doctrine of equitable
estoppel.
The Court of Appeals finds that the Card Agreement does not provide
Home Depot with the authority to compel arbitration. Competent
evidence in the record supports the trial court's conclusion that
Home Depot was not a third-party beneficiary of the Card Agreement.
The trial court's conclusion is thus binding on appeal.
Even assuming that this issue is properly before the Court,
equitable estoppel does not apply to the case at bar. Jackson's
claims all arise from alleged violations of North Carolina's
statutes prohibiting referral sales and unfair or deceptive trade
practices -- Jackson's claims do not arise from any alleged
violation of the terms or conditions of the Card Agreement, and he
does not seek to enforce any provision of the Card Agreement.
Therefore, because Jackson is "not seeking a direct benefit from
the provisions of the Card Agreement, the Court of Appeals conclude
that the doctrine of equitable estoppel cannot be used to force him
to arbitrate his claims.
Thus, assuming that this issue is properly before the Court, Home
Depot has not shown that Jackson is equitably estopped from arguing
that Home Depot cannot compel arbitration under the Card Agreement.
Home Depot's argument is overruled.
II. Findings of Fact
The Court of Appeals next addresses Home Depot's argument that the
trial court erred by failing to make findings of fact regarding the
Card Agreement. It disagrees. It finds that the trial court did
not make any findings of fact concerning the Card Agreement within
the "Findings of Fact" section of its order, but it did make a
finding of fact concerning that Agreement in its "Conclusions of
Law" section. Home Depot is not correct that the trial court made
no findings of fact regarding the Card Agreement.
Further, the Court of Appeals notes that Cornelius v. Lipscomb, 224
N.C. App. 14, 16, 734 S.E.2d 870, 871 (2012), and the cases it
cites, stand for the proposition that "an order denying a motion to
compel arbitration must include findings of fact as to whether the
parties had a valid agreement to arbitrate." Although it may not
contain the findings of fact that Home Depot preferred, the trial
court's order nevertheless satisfied this mandate. The Court of
Appeals' precedent does not compel it to reverse and remand to the
trial court for the entry of further findings of fact as to a
separate and distinct agreement that the trial court properly
concluded did not govern "the parties to the action." Home Depot's
argument is overruled.
III. Novation
Lastly, Home Depot argues that the trial court erred in concluding
that a novation occurred upon execution of the Home Depot
Agreement, thereby extinguishing the CWS Purchase Agreement.
The Court of Appeals again disagrees. It holds that there is
sufficient evidence to support the trial court's conclusion that
the Home Depot Agreement, by its own terms, expressly superseded
the CWS Purchase Agreement. Home Depot's argument is overruled.
For the foregoing reasons, the Court of Appeals concludes that the
trial court did not err by denying Home Depot's motion to dismiss
or stay in favor of arbitration. Accordingly, it affirms the trial
court's order.
A full-text copy of the Court's April 6, 2021 Order is available at
https://tinyurl.com/mav9s76w from Leagle.com.
Whitfield Bryson LLP, by Daniel K. Bryson -- dan@wbmllp.com --
Scott C. Harris -- scott@whitfieldbryson.com -- and J. Hunter
Bryson -- hunter@whitfieldbryson.com -- for third-party
plaintiff-appellee.
Erwin, Bishop, Capitano, & Moss, P.A., by Lex M. Erwin --
lerwin@ebcmlaw.com -- and King & Spalding LLP, by S. Stewart
Haskins -- shaskins@kslaw.com -- pro hac vice, for third-party
defendant-appellant Home Depot, U.S.A., Inc.
IDEANOMICS INC: Continues to Defend Rudani Putative Class Suit
--------------------------------------------------------------
Ideanomics, Inc. said in its Form 10-K report filed with the U.S.
Securities and Exchange Commission on March 31, 2021, for the
fiscal year ended December 31, 2020, that the company continues to
defend a purported class action suit entitled, Rudani v.
Ideanomics, et al. Inc.
On July 19, 2019, a purported class action, now captioned Rudani v.
Ideanomics, et al. Inc., was filed in the United States District
Court for the Southern District of New York against the Company and
certain of its current and former officers and directors.
The Amended Complaint alleges violations of Section 10(b) and 20(a)
of the Securities Exchange Act of 1934. Among other things, the
Amended Complaint alleges purported misstatements made by the
Company in 2017 and 2018.
No further updates were provided in the Company's SEC report.
Ideanomics, Inc. was incorporated in the State of Nevada on October
19, 2004. From 2010 through 2017, the Company's primary business
activities were providing premium content video on demand (VOD)
services, with primary operations in the People's Republic of China
(PRC,) through its subsidiaries and variable interest entities
(VIEs) under the brand name You-on-Demand (YOD). The Company closed
the YOD business during 2019. The company is based in New York, New
York.
IDEANOMICS INC: Putative Securities Class Suit Underway
-------------------------------------------------------
Ideanomics, Inc. said in its Form 10-K report filed with the U.S.
Securities and Exchange Commission on March 31, 2021, for the
fiscal year ended December 31, 2020, that the company continues to
defend a consolidated purported securities class action suit
entitled, In re Ideanomics, Inc. Securities Litigation.
On June 28, 2020, a purported securities class action, captioned
Lundy v. Ideanomics et al. Inc., was filed in the United State
District Court for the Southern District of New York against the
Company and certain current officers and directors of the Company.
Additionally, on July 7, 2020, a purported securities class action
captioned Kim v. Ideanomics, et al, was filed in the Southern
District of New York against the Company and certain current
officers and directors of the Company. Both cases alleged
violations of Section 10(b) and 20(a) of the Securities Exchange
Act of 1934 arising from certain purported misstatements by the
Company beginning in March 2020 regarding its MEG division.
On November 4, 2020, the Lundy and Kim actions were consolidated
and is now titled "In re Ideanomics, Inc. Securities Litigation."
In December 2020, the Court appointed Rene Aghajanian as lead
plaintiff and an amended complaint was filed in February 2021,
alleging violations of Section 10(b) and 20(a) of the Securities
Exchange Act of 1934 arising from certain purported misstatements
by the Company beginning in March 2020 regarding its MEG division.
Ideanomics, Inc. was incorporated in the State of Nevada on October
19, 2004. From 2010 through 2017, the Company's primary business
activities were providing premium content video on demand (VOD)
services, with primary operations in the People's Republic of China
(PRC,) through its subsidiaries and variable interest entities
(VIEs) under the brand name You-on-Demand (YOD). The Company closed
the YOD business during 2019. The company is based in New York, New
York.
INHIBITOR THERAPEUTICS: Sears Class Action Underway
---------------------------------------------------
Inhibitor Therapeutics, Inc. said in its Form 10-K report filed
with the U.S. Securities and Exchange Commission on March 26, 2021,
for the fiscal year ended December 31, 2020, that the company
continues to defend a stockholder class action suit entitled, Sears
v. Magrab et al., C.A. No. 2020-0215-JTL.
On March 23, 2020, a Stockholder Class Action Complaint was filed
in the Delaware Court of Chancery by a Company stockholder and
purported class representative Samuel P. Sears, commencing
litigation captioned Sears v. Magrab et al., C.A. No.
2020-0215-JTL.
The plaintiff amended his complaint in May 2020. The defendants
named in the Putative Class Action are identical to those named in
the Action, with the exception that the Company is not a party to
the litigation.
The Putative Class Action asserts three direct breach of fiduciary
duty claims-one against Mayne only, another against the Individual
Defendants, and a third against all defendants-and the facts
underlying those claims almost entirely mirror those alleged in the
Action.
On December 10, 2020, the Court of Chancery entered an order
coordinating the Action and the Putative Class Action for purposes
of litigations.
The Company believes the Putative Class Action is legally and
factually baseless, and the Individual Defendants intend to defend
themselves vigorously.
Inhibitor Therapeutics, Inc. operates as a development stage
pharmaceutical company. The Company focuses on developing and
commercializing innovative therapies for patients with cancer and
non-cancerous proliferation disorders. Inhibitor Therapeutics
operates in the State of Florida. The company is based in Tampa,
Florida.
INTELLIPHARMACEUTICS: June 25 Romita Settlement Approval Hearing
----------------------------------------------------------------
Intellipharmaceutics said in its Form 20-F report filed with the
U.S. Securities and Exchange Commission on March 31, 2021, for the
fiscal year ended December 31, 2020, that hearing for settlement
approval in the proposed class action suit initiated by Victor
Romita, has now been scheduled for June 25, 2021.
On February 21, 2019, the company and its CEO, Dr. Isa Odidi, were
served with a Statement of Claim filed in the Superior Court of
Justice of Ontario for a proposed class action under the Ontario
Class Proceedings Act.
The action was brought by Victor Romita, the proposed
representative plaintiff, on behalf of a class of Canadian persons
who traded common shares during the period from February 29, 2016
to July 26, 2017.
The Statement of Claim, under the caption Victor Romita v.
Intellipharmaceutics International Inc. and Isa Odidi, asserted
that the defendants knowingly or negligently made certain public
statements during the relevant period that contained or omitted
material facts concerning Oxycodone ER abuse-deterrent oxycodone
hydrochloride extended release tablets.
The plaintiff alleged that he and the class suffered loss and
damages as a result of their trading in our shares during the
relevant period. The plaintiff seeks, among other remedies,
unspecified damages, legal fees and court and other costs as the
Court may permit.
On February 26, 2019, the plaintiff delivered a Notice of Motion
seeking the required approval from the Court, in accordance with
procedure under the Ontario Securities Act, to allow the statutory
claims under the Ontario Securities Act to proceed with respect to
the claims based upon the acquisition or disposition of the
company's shares on the TSX during the relevant period.
On June 28, 2019, the Court endorsed a timetable for the exchange
of material leading to the hearing of the Motion scheduled for
January 27-28, 2020. On October 28, 2019, plaintiff's counsel
advised the court that the Plaintiff intended to amend his claim
and could not proceed with the Leave Motion scheduled for January
27-28, 2020. As such the court released those dates.
On January 28, 2020 the plaintiff served a Notice of Motion for
leave to amend the Statement of Claim.
On April 2, 2020 the plaintiff delivered an Amended Motion Record
and Amended Notice of Motion seeking an order for leave to issue a
fresh as Amended Statement of Claim including the addition of
Christopher Pearce as a Plaintiff. On May 1, 2020, the court
granted the plaintiff's Amendment Motion.
The Company and Dr. Odidi intend to vigorously defend the action
and have filed a Notice of Intent to Defend.
A tentative settlement has been reached in this proceeding.
A hearing for settlement approval has now been scheduled for June
25, 2021.
On October 22, 2009, Intellipharmaceutics Ltd. and Vasogen Inc.
completed a plan of arrangement and merger, a court-approved plan
of arrangement and merger resulting in the formation of the
Company, which is incorporated under the laws of Canada and the
common shares of which are currently traded on the Toronto Stock
Exchange (TSX) and OTCQB Venture Market (OTCQB).
The company is a pharmaceutical company specializing in the
research, development and manufacture of novel and generic
controlled-release and targeted-release oral solid dosage drugs.
JAGUAR HEALTH: Final Settlement Approval Hearing Set for May 18
---------------------------------------------------------------
Jaguar Health, Inc. said in its Form 10-K report filed with the
U.S. Securities and Exchange Commission on March 31, 2021, for the
fiscal year ended December 31, 2020, that the final settlement
approval hearing in Tony Plant v. Jaguar Animal Health, Inc., et
al. is set for May 18, 2021.
On July 20, 2017, a putative class action complaint was filed in
the United States District Court, Northern District of California,
Civil Action No. 3:17-cv-04102, by Tony Plant on behalf of
shareholders of the Company who held shares on April 12, 2017 and
were entitled to vote at the 2017 Special Shareholders Meeting,
against the Company and certain individuals who were directors as
of the date of the vote, in a matter captioned Tony Plant v. Jaguar
Animal Health, Inc., et al. (Jaguar Health, Inc. was formerly known
as Jaguar Animal Health, Inc.), making claims arising under Section
14(a) and Section 20(a) of the Exchange Act and Rule 14a-9, 17
C.F.R. Section 240.14a-9, promulgated thereunder by the SEC.
The claims alleged false and misleading information provided to
investors in the Joint Proxy Statement/Prospectus on Form S-4 (File
No. 333-217364) declared effective by the Commission on July 6,
2017 related to the solicitation of votes from shareholders to
approve the merger and certain transactions related thereto. The
Company accepted service of the complaint and summons on behalf of
itself and the United States-based director Defendants on November
1, 2017. The Company has not accepted service on behalf of, and
Plaintiff has not yet served, the non-U.S.-based director
Defendants.
By order dated September 20, 2018, the court dismissed the lawsuit
for failure to state a claim. Plaintiff was entitled to amend that
complaint within 20 days from the date of dismissal.
On October 10, 2018, Plaintiff filed a second amended complaint to
focus on the Company's commercial strategy in support of Equilevia
and the related disclosure statements in the Form S-4 described
above.
On November 6, 2018, the Defendants moved to dismiss the second
amended complaint. The court denied the Defendants' motion to
dismiss on June 28, 2019.
The Company answered the second amended complaint on August 2,
2019; the answer denied the material allegations of the second
amended complaint.
Following the completion of document discovery, the parties engaged
in a mediation that resulted in an agreement in principle to settle
the litigation on a class-wide basis for $2.6 million, subject to
court approval.
Plaintiff filed a motion for preliminary approval of the proposed
settlement on December 30, 2020. The court preliminarily approved
the proposed settlement and authorized Plaintiff to provide
settlement class members with notice of the proposed settlement, in
an order dated February 2, 2021.
The final settlement approval hearing is currently scheduled for
May 27, 2021.
Jaguar said, "Assuming that the court gives final approval to the
proposed settlement following the final settlement approval
hearing, the entire settlement consideration will be provided by
the Company's director and officer liability insurance carrier."
Jaguar Health, Inc., a commercial-stage natural-products
pharmaceuticals company, focuses on developing gastrointestinal
products for human prescription use and animals worldwide. Jaguar
Health, Inc. is headquartered in San Francisco, California.
KANDI TECHNOLOGIES: Bid to Dismiss NY Putative Class Suit Pending
-----------------------------------------------------------------
Kandi Technologies Group, Inc. said in its Form 10-K report filed
with the U.S. Securities and Exchange Commission on March 30, 2021,
for the fiscal year ended December 31, 2020, that the motion to
dismiss the putative class action suit filed in the New York
Federal Court, is pending.
Beginning in March 2017, putative shareholder class actions were
filed against Kandi Technologies Group, Inc. and certain of its
current and former directors and officers in the United States
District Court for the Central District of California and the
United States District Court for the Southern District of New York.
The complaints generally alleged violations of the federal
securities laws based Kandi's disclosure in March 2017 that its
financial statements for the years 2014, 2015 and the first three
quarters of 2016 would need to be restated, and seek damages on
behalf of putative classes of shareholders who purchased or
acquired Kandi's securities prior to March 13, 2017.
Kandi moved to dismiss the remaining cases, all of which were
pending in the New York federal court, and that motion was granted
by an order entered on September 30, 2019, and the time to appeal
has run.
In June 2020, a similar but separate putative securities class
action was filed against Kandi and certain of its current and
former directors and officers in California federal court. In
September 2020, this action was transferred to the New York federal
court and Kandi moved to dismiss in March 2021.
Kandi Technologies Group, Inc. manufactures small vehicles
including all-terrain vehicles, golf carts, motorcycles, motor
scooters and go-karts. The Company also is focused on the
development of energy-saving mini-cars. The company is based in the
People's Republic of China.
KANDI TECHNOLOGIES: NY Putative Securities Class Suit Underway
--------------------------------------------------------------
Kandi Technologies Group, Inc. said in its Form 10-K report filed
with the U.S. Securities and Exchange Commission on March 30, 2021,
for the fiscal year ended December 31, 2020, that the company
continues to defend a putative securities class action suit in the
United States District Court for the Eastern District of New York.
In December 2020, a putative securities class action was filed
against Kandi and certain of its current officers in the United
States District Court for the Eastern District of New York.
The complaint generally alleges violations of the federal
securities laws based on claims made in a report issued by
Hindenburg Research in November 2020, and seeks damages on behalf
of a putative class of shareholders who purchased or acquired
Kandi's securities prior to March 15, 2019.
This action remains pending.
Kandi Technologies Group, Inc. manufactures small vehicles
including all-terrain vehicles, golf carts, motorcycles, motor
scooters and go-karts. The Company also is focused on the
development of energy-saving mini-cars. The company is based in the
People's Republic of China.
KIRKLAND'S INC: Discovery Ongoing in Miles Putative Class Suit
--------------------------------------------------------------
Kirkland's, Inc. said in its Form 10-K report filed with the U.S.
Securities and Exchange Commission on March 26, 2021, for the
fiscal year ended January 31, 2021, that discovery is ongoing in
the putative class action suit entitled, Miles v. Kirkland's
Stores, Inc.
The Company has been named as a defendant in a putative class
action filed in May 2018 in the Superior Court of California, Miles
v. Kirkland's Stores, Inc.
The case has been removed to Federal Court, Central District of
California, and trial is currently set for November 8, 2021.
The complaint alleges, on behalf of Miles and all other hourly
Kirkland's employees in California, various wage and hour
violations.
Kirkland's denies the material allegations in the complaint and
believes that its employment policies are generally compliant with
California law.
The parties are currently engaging in discovery, and the Plaintiff
has until April 9, 2021 to file for class certification.
The Company believes the case is without merit and intends to
vigorously defend itself against the allegations.
Kirkland's, Inc. operates as a specialty retailer of home decor in
the United States. The company's stores provide various
merchandise, including holiday decor, framed arts, furniture,
ornamental wall decor, fragrance and accessories, mirrors, lamps,
decorative accessories, textiles, housewares, gifts, artificial
floral products, frames, clocks, and outdoor living items.
Kirkland's, Inc. was founded in 1966 and is based in Brentwood,
Tennessee.
KIRKLAND'S INC: Petition for Allowance of Appeal in Gennock Pending
-------------------------------------------------------------------
Kirkland's, Inc. said in its Form 10-K report filed with the U.S.
Securities and Exchange Commission on March 26, 2021, for the
fiscal year ended January 31, 2021, that the company's petition for
allowance of appeal with the Pennsylvania Supreme Court related to
Gennock v. Kirkland's, Inc., is pending.
The Company was named as a defendant in a putative class action
filed in April 2017 in the United States District Court for the
Western District of Pennsylvania, Gennock v. Kirkland's, Inc.
The complaint alleged that the Company, in violation of federal
law, published more than the last five digits of a credit or debit
card number on customers' receipts.
On October 21, 2019, the District Court dismissed the matter and
ruled that the Plaintiffs did not have standing based on the Third
Circuit's recent decision in Kamal v. J. Crew Group, Inc., 918 F.3d
102 (3d. Cir. 2019).
Following the dismissal in federal court, on October 25, 2019, the
Plaintiffs filed a Praecipe to Transfer the case to Pennsylvania
state court, and on August 20, 2020, the court ruled that the
Plaintiffs have standing.
However, the court also certified the standing issue for an
interlocutory appeal, and the Company has filed a petition for
allowance of appeal with the Pennsylvania Supreme Court.
The Company continues to believe that the case is without merit and
intends to continue to vigorously defend itself against the
allegations.
Kirkland's said, "The matter is covered by insurance, and the
Company does not believe that the case will have a material adverse
effect on its consolidated financial condition, operating results
or cash flows."
Kirkland's, Inc. operates as a specialty retailer of home decor in
the United States. The company's stores provide various
merchandise, including holiday decor, framed arts, furniture,
ornamental wall decor, fragrance and accessories, mirrors, lamps,
decorative accessories, textiles, housewares, gifts, artificial
floral products, frames, clocks, and outdoor living items.
Kirkland's, Inc. was founded in 1966 and is based in Brentwood,
Tennessee.
LEDGER SAS: Faces Chu Suit in N.D. Cal. Over Alleged Data Breach
----------------------------------------------------------------
JOHN CHU and EDWARD BATON, individually and on behalf of all others
similarly situated, Plaintiffs v. LEDGER SAS, LEDGER TECHNOLOGIES
INC., SHOPIFY (USA) INC., and SHOPIFY INC., Defendants, Case No.
3:21-cv-02470 (N.D. Cal., April 6, 2021) seeks to redress the
Defendants' misconduct caused in connection with a massive 2020
data breach that those companies negligently allowed, recklessly
ignored, and then intentionally sought to cover up.
According to the complaint in mid-2020, between April and June,
hackers found and exploited a database vulnerability at Ledger and
its e-commerce vendor, Shopify, to obtain a list of Ledger's
customers, as well as email addresses and other contact
information. By June 2020, Ledger's customer list had made its way
onto the Internet's black market, making Ledger wallet owners
vulnerable. The circumstances grew much worse over the next six
months, the suit asserts.
From June 2020 through December 2020, at least one of the hackers
who had acquired the data published it online, providing over
270,000 names, physical addresses, phone numbers, and order
information to every hacker in the world. As a direct result, the
attacks on Ledger's customers grew exponentially, with customers
losing money, facing threats of physical violence, and even feeling
vulnerable in their own homes. Indeed, using the customer shipping
addresses that Ledger and Shopify had failed to protect, hackers
threatened to enter the homes of and attack Ledger customers unless
those customers made untraceable ransom payments, the suit adds.
Ledger S.A.S. designs and develops software. The Company offers
smartcard security for bitcoins. [BN]
The Plaintiffs are represented by:
Todd M. Schneider, Esq.
Jason H. Kim, Esq.
Matthew S. Weiler, Esq.
Kyle G. Bates, Esq.
SCHNEIDER WALLACE
COTTRELL KONECKY LLP
2000 Powell Street, Suite 1400
Emeryville, CA 94608
Telephone: (415) 421-7100
E-mail: tschneider@schneiderwallace.com
jkim@schneiderwallace.com
mweiler@schneiderwallace.com
kbates@schneiderwallace.com
-and-
Kyle W. Roche, Esq.
Richard Cipolla, Esq.
Jolie Huang, Esq.
ROCHE FREEDMAN LLP
99 Park Avenue, 19th Floor
New York, NY 10016
Telephone: (646) 970-7509
E-mail: kyle@rcfllp.com
rcipolla@rcfllp.com
jhuang@rcfllp.com
-and-
Velvel Freedman, Esq.
Constantine P. Economides, Esq.
ROCHE FREEDMAN LLP
200 South Biscayne Boulevard
Miami, FL 33131
Telephone: (305) 971-5943
E-mail: vel@rcfllp.com
ceconomides@rcfllp.com
LEESBURG, AL: N.D. Alabama Narrows Claims in Sutton Class Suit
--------------------------------------------------------------
In the case, LENA SUTTON, on behalf of herself and those similarly
situated, Plaintiff v. LEESBURG, ALABAMA, et al., Defendants, Case
No. 4:20-cv-00091-ACA (N.D. Ala.), Judge Annemarie Carney Axon of
the U.S. District Court for the Northern District of Alabama,
Middle Division, grants in part and denies in part the State's
motion to dismiss and Leesburg's motion for judgment on the
pleadings.
Plaintiff Sutton lent her car to a friend who, unbeknownst to her,
used it to carry drugs. After police officers from Defendant Town
of Leesburg pulled her friend over and found the drugs, Leesburg
seized Ms. Sutton's car and asked the State of Alabama to institute
civil forfeiture proceedings under Alabama Code Section 20-2-93.
In accordance with that statute, Leesburg retained Ms. Sutton's car
during the pendency of the civil forfeiture proceedings in state
court, which took over a year to complete and ended in a judgment
in Ms. Sutton's favor.
Near the end of the state civil forfeiture proceeding, Ms. Sutton
filed the federal putative class action against Leesburg. She
seeks damages and a declaratory judgment that Leesburg's
pre-judgment retention of seized property without a probable cause
hearing or other method for property owners to reclaim the property
is unconstitutional. Ms. Sutton does not name the State as a
defendant, but she claims that Leesburg's practice of retaining
property pre-judgment is part of a conspiracy with the State to
violate the Fourth, Eighth, and Fourteenth Amendments.
Because Ms. Sutton's lawsuit challenges the constitutionality of a
state statute, the State intervened, under 28 U.S.C. Section
2403(b), for the limited purpose of "argument on the question of
constitutionality." The State has now moved to dismiss the
complaint, contending that issue preclusion requires the court to
abstain under the Younger abstention doctrine; that even if issue
preclusion does not apply, the court should exercise its discretion
to abstain under Younger; that the Court must dismiss the case
because the State is a required and indispensable party under
Federal Rule of Civil Procedure 19(b) but that its sovereign
immunity prevents its joinder; that Alabama's doctrine of claim
preclusion bars the case; and that Ms. Sutton fails to state a
claim in any event.
Leesburg has separately filed a motion for judgment on the
pleadings, making the same arguments as the State with respect to
issue preclusion, and Ms. Sutton's ability to state a claim about
the availability of a bond procedure. The Court stayed briefing on
Leesburg's motion in the interest of addressing the State's motion
first.
Having considered the State's motion, Judge Axon concludes that
further briefing on Leesburg's motion is unnecessary because the
resolution of the State's arguments applies equally to Leesburg's
motion.
Judge Axon grants in part and denies in part the State's motion to
dismiss and Leesburg's motion for judgment on the pleadings. She
finds that issue preclusion does not require it to abstain under
Younger and that the Court should not abstain because there is no
possibility that this case will interfere with Ms. Sutton's state
court forfeiture proceedings. Furthermore, the State is not a
required party, so a Rule 19(b) dismissal is unwarranted. In
addition, Alabama's doctrine of claim preclusion does not bar Ms.
Sutton's claims because she was the prevailing defendant in the
state court case.
On the merits, however, Judge Axon concludes that Ms. Sutton cannot
state a claim under the Fourth or Eighth Amendments, and therefore
she dismisses those claims with prejudice. She aso dismisses with
prejudice the part of Ms. Sutton's Fourteenth Amendment claim
asserting that either Leesburg or the statute fails to offer any
method for forfeiture defendants to reclaim their property during
the forfeiture proceedings, because the statute plainly provides
for the execution of a bond in exchange for the property.
However, the Judge denies the motion to dismiss the Fourteenth
Amendment claim with respect to Ms. Sutton's challenge to the lack
of a prompt post-seizure probable cause hearing because the State
has not met its burden of making persuasive argument about why that
claim must fail as a matter of law.
A full-text copy of the Court's April 6, 2021 Memorandum Opinion &
Order is available at https://tinyurl.com/3ax9csys from
Leagle.com.
LIZHI INC: Faces ADS Related Putative Class Suits
-------------------------------------------------
Lizhi Inc. said in its Form 20-F report filed with the U.S.
Securities and Exchange Commission on March 26, 2021, for the
fiscal year ended December 31, 2020, that the company is facing two
putative class action suits related to its American Depositary
Shares (ADSs).
In January 2021, the Company, certain of its current and former
directors and officers, underwriters and certain other parties were
named as defendants in two putative securities class actions filed
in the Supreme Court of the State of New York, County of New York
and the U.S. District Court for the Eastern District of New York,
respectively.
The actions are both purportedly brought on behalf of a class of
persons who allegedly suffered damages as a result of their trading
in the ADSs.
Both actions allege that our Registration Statement dated January
16, 2020 contained material misstatements and/or omissions
regarding the impact of COVID-19 on the Company in violation of the
U.S. Securities Act of 1933.
These actions remain in their preliminary stages. Additional
complaints related to these claims may be filed in the coming
months.
Lizhi said, "We are currently unable to estimate the potential
loss, if any, associated with the resolution of such lawsuits, if
they proceed. We intend to defend the actions vigorously."
Lizhi Inc. operates a mobile application 'Lizhi" to create, store,
share, discover, and enjoy audio. The Company also provides online
user-generated content audio community, interactive audio
entertainment platform, audio artificial intelligence technologies,
and other services. Lizhi serves customers in China.
LOANDEPOT INC: Defends Two TCPA Related Putative Class Suits
------------------------------------------------------------
LoanDepot, Inc. said in its Form 10-K/A report filed with the U.S.
Securities and Exchange Commission on March 26, 2021, for the
fiscal year ended December 31, 2020, that the Company is defending
two putative Telephone Consumer Protection Act (TCPA) class
actions.
The Company is defending two putative TCPA class actions.
The Company denies the allegations in these cases and is vigorously
defending both matters.
The Company intends to a file dispositive motions, which, if
granted, would result in a finding of no liability and dismissal of
the actions.
In the second matter, the Company intends to file a motion to
defeat class certification, which, if granted, may result in a
nominal individual settlement.
loanDepot said, "Given the lawsuits are at the early stages, the
Company is unable to estimate a range of possible loss with any
degree of reasonable certainty."
loanDepot, Inc. a customer-centric, technology-empowered
residential mortgage platform with a widely recognized consumer
brand. The company is based in Foothill Ranch, California.
LORDSTOWN MOTORS: Facing Rico and Palumbo Putative Class Suits
--------------------------------------------------------------
Lordstown Motors Corp. said in its Form 10-K report filed with the
U.S. Securities and Exchange Commission on March 25, 2021, for the
fiscal year ended December 31, 2020, that the company is facing
putative class suits initiated by Matthew Rico and Robert Palumbo.
On March 18, 2021, the company, along with Mr. Stephen S. Burns,
Mr. Julio Rodriguez and Mr. Rich Schmidt, as the company's
executive officers, were named as defendants in a putative class
action in the United States District Court in the Northern District
of Ohio, Case No. 21- 616, by plaintiff Matthew Rico, allegedly on
behalf of a class of purchasers of the Company's stock, asserting
violations of federal securities laws under Section 10(b) and
Section 20(a) of the Exchange Act.
On March 19, 2021, a substantially similar putative class action
was filed in the N.D. Ohio, Case No. 21-633, by plaintiff Robert
Palumbo.
The company anticipates these actions will be consolidated under
the provisions of the Private Securities Litigation Reform Act of
1995.
Lordstown said, "We intend to vigorously defend against these
claims. The proceedings are subject to uncertainties inherent in
the litigation process. We cannot predict the outcome of these
matters or estimate the possible loss or range of possible loss, if
any."
Lordstown Motors Corp. was originally known as DiamondPeak Holdings
Corp., was incorporated in Delaware on November 13, 2018 as a blank
check company for the purpose of effecting a business combination
and completed its initial public offering in March 2019. The
company designs and manufactures electric vehicles. The Company
offers electric light duty trucks, pickup trucks, and other
vehicles. Lordstown Motors serves customers in the United States.
LOUISIANA HEALTH: Bid to Strike Denial in Opelousas Suit Affirmed
-----------------------------------------------------------------
In the lawsuit entitled OPELOUSAS GENERAL HOSPITAL AUTHORITY, A
PUBLIC TRUST, D/B/A OPELOUSAS GENERAL HEALTH SYSTEM v. LOUISIANA
HEALTH SERVICE & INDEMNITY COMPANY D/B/A BLUE CROSS/BLUE SHIELD OF
LOUISIANA, Case No. CA 21-174 (La. App.), the Court of Appeal of
Louisiana, Third Circuit, affirms the trial court's denial of the
Defendant's motion to strike.
The Appellate Court is composed of D. Kent Savoie, Sharon Darville
Wilson, and Charles G. Fitzgerald, Judges.
In the anti-trust class action, the Defendant, Louisiana Health
Service & Indemnity, doing business as Blue Cross and Blue Shield
of Louisiana (BCBSLA), along with the Louisiana Commissioner of
Insurance, Louisiana Department of Insurance, and the Blue Cross
Blue Shield Association, appeal the trial court's denial of
BCBSLA's motion to strike the motion for partial summary judgment
filed by the Plaintiff Class. The Appellate Court affirms the trial
court's denial of the motion to strike.
Although BCBSLA asserted several assignments of error in brief, as
several of these assignments address the motion for summary
judgment rather than the motion to strike, the only issues the
Appellate Court decided in the appeal are:
(1) whether the trial court erred in considering a partial
summary judgment with respect to less than all claims and
claimants in the class action without certifying a sub
class; and
(2) whether the trial court erred by not requiring the
Plaintiffs to amend their petition to add a new unpleaded
theory as to BCBSLA's liability under La.R.S. 51:122.
The Plaintiffs filed a class action on August 24, 2016, against
BCBSLA, alleging BCBSLA engaged in anticompetitive conduct in
violation of La.R.S. 51:122 through artificially low reimbursement
rates resulting from contracts between BCBSLA and Louisiana medical
providers. At this time, several anti-trust class actions were
brought against various Blue Cross Blue Shield entities which were
consolidated in a federal Multi-District Litigation in the United
States District Court for the Northern District of Alabama. Prior
to certification of the class, attempts were made by BCBSLA to
remove this case to federal court, but it was ultimately remanded
back to Louisiana from the United States Eleventh Circuit Court of
Appeal which cited a lack of diversity.
BCBSLA participates in the Blue Card program. Under that program,
BCBSLA and Blue Plans from other states sign licensing agreements
with the Association for the exclusive use of the Blue Cross and
Blue Shield trademarks when contracting insurance in their
respective states. Each insurer participates in the Blue Card
program whereby patients from out of state Blue Plans can receive
the same discounted in-network rates from providers that were
negotiated with that state's Blue insurer. Each Blue insurer may
only use the Blue trademarks within their respective states.
The Plaintiff Class represents Louisiana health providers, who
entered into contracts, known as provider agreements, with BCBSLA.
Those agreements defined the term "member" to include insureds from
out of state affiliate Blue Plans, and required the contractual
discounts negotiated by BCBSLA for its insureds to also apply to
any patient with an out of state Blue Plan receiving care from the
Louisiana contractual providers. This suit only involves provider
agreements with BCBSLA and asserts only monetary claims under
Louisiana Law. The Association filed a petition for intervention
which was denied by the trial court and affirmed by this court.
On October 7, 2020, the Plaintiffs moved for partial summary
judgment seeking the return of contractual discounts for patients
insured by out of state Blue insurers for a portion of the class
and excluding those members who were part of a federal settlement.
In response, BCBSLA filed a motion to strike on November 2, 2020,
requesting that the court strike the motion for partial summary
judgment or continue the hearing on the motion to allow for
depositions to be taken of Robert Ehlers, the witness the
Plaintiffs used to exclude disputed claims from billing records.
In the motion to strike, BCBSLA argued that the Plaintiffs had
never pled the theory that formed the basis for the motion for
partial summary judgment, and that granting the partial summary
judgment to less than all class members on less than all claims
violated La.Code Civ.P. arts. 591-592 because the Plaintiffs had
not moved to certify a subclass. On November 5, 2020, then
presiding Judge Alonzo Harris held a phone conference with respect
to the motion to strike or continue and stated that he would grant
the continuance to allow BCBSLA to conduct discovery with respect
to Mr. Ehlers.
The motion to strike was set for hearing on December 16, 2020,
before the motion for partial summary judgment. At the hearing, the
trial court denied the motion to strike and proceeded with the
motion for summary judgment. On January 12, 2021, an order denying
the motion to strike was signed. On January 13, 2021, BCBSLA filed
a motion for suspensive appeal of the order denying the motion.
In their first assignment of error, BCBSLA alleges that the trial
court erred by concluding the Plaintiffs did not violate La.Code
Civ.P. arts. 591-592 by creating an uncertified subclass. After
reviewing the record, the Appellate Court disagrees. The code
provisions on summary judgment specifically allow that summary
judgment may be granted for all or part of the relief prayed for by
the moving party. While La.Code Civ.P. arts. 591-592 spell out the
process and requirements for certifying a subclass, BCBSLA points
to no law that requires creating a subclass to move forward a
motion for partial summary judgment, Judge Sharon Darville Wilson,
writing for the Panel, notes.
By its nature, a motion for partial summary judgment requires that
not all claims as to all parties are adjudicated, Judge Wilson
says. The Plaintiffs have sought to dispose of claims on behalf of
claimants where there exists no genuine issue of material fact as
to their ability to recover. Contrary to BCBSLA's contention, the
Plaintiffs have not abandoned their claims as to the rest of the
class in seeking to make use of the partial summary judgment tool
and they specifically reserve their right to later pursue claims on
behalf of claimants where there exists a genuine issue of material
fact.
In certifying the class, the court has already determined that no
divergent interest exists within the class that would necessitate
the certification of subclasses, Judge Wilson explains. The motion
for partial summary judgment does not alter this determination.
Accordingly, the Appellate Court finds that the trial court did not
abuse its discretion in allowing the motion to proceed on behalf of
less than all claims and less than all claimants without certifying
a subclass.
In the next assignment of error that the Appellate Court addresses,
BCBSLA contends that the trial court erred by failing to require
the Plaintiffs to amend their petition to address a new theory of
liability not alleged in the petition. The Appellate Court
disagrees.
The record reveals that Paragraph 11 of the original petition
specifically plead the facts and theory that form the basis of the
partial summary judgment. The Plaintiffs specifically alleged: This
scheme included not only unlawful agreements to not compete in
other Blue Cross/Blue Shield geographic markets (in exchange for
exclusive monopolistic reign over the Louisiana market), but also
granted other Blue Cross/Blue Shield companies access to its
Louisiana contracted rates essentially turning would-be competitors
into Louisiana Blue Cross customers or clients instead.
Furthermore, in affirming the class certification, the Appellate
Court noted that the Plaintiffs had alleged that BCBSLA's
contracting practices "required that Louisiana Blue Cross providers
accept Louisiana Blue Cross contracted rates from any other Blue
Cross insurer, and excluded any other Blue Cross insurer from
entering the Louisiana health insurance marker or contracting for
its own reimbursement rates with Louisiana Blue Cross providers."
Opelousas Gen. Hosp. Auth., 283 So.3d at 622. BCBSLA's assignment
lacks merit. Accordingly, the Appellate Court finds that the trial
court did not abuse its discretion in failing to require the
Plaintiffs to amend their petition.
The remaining assignments of error by BCBSLA all pertain to the
decision on the motion of partial summary judgment and not the
motion to strike. Therefore, the Appellate Court foregoes any
consideration of those assignments in this opinion.
For these reasons, the Appellate Court finds that the trial court
did not abuse its discretion in failing to require the Plaintiffs
to certify a subclass or amend their original petition before
proceeding with the motion for partial summary judgment. Therefore,
the Appellate Court finds that the trial court's denial of the
motion to strike was not an abuse of discretion and it affirms the
trial court's ruling.
A full-text copy of the Court's Opinion dated April 5, 2021, is
available at https://tinyurl.com/ba58mudu from Leagle.com.
Michael William Magner -- mmagner@joneswalker.com -- Jones, Walker,
at 201 St. Charles Ave., 51st Fl., in New Orleans, Louisiana 70170,
(504) 582-8266, COUNSEL FOR DEFENDANT APPELLANT: Louisiana Health
Service & Indemnity Company.
Richard Allen Sherburne, Jr., Attorney At Law, P.O. Box 98029, in
Baton Rouge, Louisiana 70898, (225) 295-2116, COUNSEL FOR DEFENDANT
APPELLANT: Louisiana Health Service & Indemnity Company.
Joseph C. Giglio, Jr. -- jcgiglio@liskow.com -- Liskow & Lewis, P.
O. Box 52008, in Lafayette, Louisiana 70505-2008, (337) 232-7424,
COUNSEL FOR INTERVENOR APPELLANT: Blue Cross Blue Shield
Association.
Patrick Craig Morrow, Sr. -- PatM@mmrblaw.com -- Morrow, Morrow,
Ryan & Bassett, at 324 W Landry Street, in Opelousas, Louisiana
70570, (337) 948-4483, COUNSEL FOR PLAINTIFF APPELLEE: Opelousas
General Hospital Authority, A Public Trust.
Stephen Barnett Murray -- smurrayjr@murray-lawfirm.com -- Murray
Law Firm, at 701 Poydras St., Ste. 4250, in New Orleans, Louisiana
70139, (504) 525-8100, COUNSEL FOR PLAINTIFF APPELLEE: Opelousas
General Hospital Authority, A Public Trust.
James Alcee Brown -- jabrown@liskow.com -- Liskow & Lewis, at 701
Poydras, Ste. 5000, in New Orleans, Louisiana 70139-5099, (504)
581-7979, COUNSEL FOR INTERVENOR APPELLANT: Blue Cross Blue Shield
Association.
Thomas Allen Filo, Cox, Cox, & Filo, 723 Broad Street, in Lake
Charles, Louisiana 70601, (337) 436-6611, COUNSEL FOR PLAINTIFF
APPELLEE: Opelousas General Hospital Authority, A Public Trust.
Mark Aaron Cunningham -- mcunningham@joneswalker.com -- Jones,
Walker, Waechter, Poite, at 201 St. Charles Ave., 51st Flr., in New
Orleans, Louisiana 70170-5100, (504) 582-8266, COUNSEL FOR
DEFENDANT APPELLANT: Louisiana Health Service & Indemnity Company.
Pride Justin Doran, Doran & Cawthorne, P.L.L.C, P. O. Box 2119, in
Opelousas, Louisiana 70571, (337) 948-8008, COUNSEL FOR DEFENDANT
APPELLANT: Louisiana Health Service & Indemnity Company.
Douglas Michael Chapoton, Attorney At Law, P. O. Box 98029, in
Baton Rouge, Louisiana 70898, (225) 295-2116, COUNSEL FOR DEFENDANT
APPELLANT: Louisiana Health Service & Indemnity Company.
Arthur M. Murray -- amurray@murray-lawfirm.com -- Murray Law Firm,
at 701 Poydras St., Ste. 4250, in New Orleans, Louisiana 70139,
(504) 525-8100, COUNSEL FOR PLAINTIFF APPELLEE: Opelousas General
Hospital Authority, A Public Trust.
Michael C. Drew -- mdrew@joneswalker.com -- Jones, Walker, at 201
St. Charles Ave., 51st Fl., in New Orleans, Louisiana 70170, (504)
582-8318, COUNSEL FOR DEFENDANT APPELLANT: Louisiana Health Service
& Indemnity Company.
Graham H. Ryan -- gryan@joneswalker.com -- Jones, Walker, LLP, at
201 St. Charles Ave., 51st Fl., in New Orleans, Louisiana 70170,
(504) 582-8266, COUNSEL FOR DEFENDANT APPELLANT: Louisiana Health
Service & Indemnity Company.
Jessica W. Chapman, Attorney At Law, P. O. Box 98029, in Baton
Rouge, Louisiana 70898, (225) 295-2116, COUNSEL FOR DEFENDANT
APPELLANT: Louisiana Health Service & Indemnity Company.
Raven C. Boxie, Doran & Cawthorne, P.L.L.C., P. O. Box 2119, in
Opelousas, Louisiana 70571, (337) 948-8008, COUNSEL FOR DEFENDANT
APPELLANT: Louisiana Health Service & Indemnity Company.
William E. Kellner -- WEKellner@liskow.com -- Liskow & Lewis, P. O.
Box 52008, in Lafayette, Louisiana 70505-2008, (337) 232-7424,
COUNSEL FOR INTERVENOR APPELLANT: Blue Cross Blue Shield
Association.
Ryan M. Kantor -- ryan.kantor@morganlewis.com -- Morgan, Lewis &
Bockius, at 1111 Pennsylvania Ave., NW, in Washington, D.C.
20004-2541, (202) 739-5343, COUNSEL FOR DEFENDANT APPELLANT:
Louisiana Health Service & Indemnity Company.
MDL 2452: Adams Appeals Ruling in Liability Suit to 9th Cir.
------------------------------------------------------------
Plaintiff Jean Adams filed an appeal from a court ruling entered in
his lawsuit styled IN RE INCRETIN-BASED THERAPIES PRODUCTS
LIABILITY LITIGATION, Case No. 3:13-md-02452-AJB-MDD, in the U.S.
District Court for the Southern District of California, San Diego.
The multidistrict litigation involves claims that Defendants failed
to warn that four prescription drugs used to treat type 2 diabetes
cause or create an increased risk of pancreatic cancer. Plaintiffs
are individuals with type 2 diabetes who were prescribed and
consumed one or more of the prescription drugs marketed
respectively as Januvia, Janumet, Byetta, and Victoza. Defendants
are the pharmaceutical companies that manufacture and market the
drugs, including Amylin Pharmaceuticals, LLC, Eli Lilly and
Company, Merck Sharp & Dohme Corp., and Novo Nordisk Inc.
The Defendants jointly moved to exclude the opinions of Plaintiffs'
experts, Drs. Madigan, Wells, Brown, and Gale. Drs. Madigan and
Wells are statisticians who evaluated whether statistical evidence
of a causal association exists between incretin mimetics and
pancreatic cancer. Dr. Brown is a cellular biologist who evaluated
whether it is biologically plausible that incretin-based drugs
induce cell proliferation and promote the development of pancreatic
cancer. Dr. Gale is an oncologist who evaluated the question of
whether incretin-based therapies cause or contribute to pancreatic
cancer.
Defendants also jointly moved to exclude the opinions of
Plaintiffs' experts, Drs. Landolph, Woolf, and Taylor. Dr. Landolph
is a chemical toxicologist, who evaluated whether there is a viable
mechanism whereby incretin-based therapies could contribute to the
development of pancreatic cancer. Dr. Woolf is a gastroentologist,
who performed a literature review to assess whether incretin
mimetics more likely than not increase the risk of pancreatic
cancer. Dr. Taylor is a pathologist, who examined non-human primate
slides from two toxicology studies involving exenatide.
Having considered Defendants' motions to exclude Plaintiffs'
experts, the Court turned to Plaintiffs' motion to exclude Novo's
experts, Drs. Thayer, Wang, and Scharfstein. However, the Court
said it need not consider the merits of this motion and denied it
as moot, because Plaintiffs have not presented evidence to raise a
genuine issue of material fact as to general causation. Moreover,
the Court does not rely on these experts in granting Defendants'
summary judgment motions based on preemption and general
causation.
Ms. Adams seeks a review of the Court's Order dated March 10, 2021,
granting Defendants' joint motion for summary judgment based on
preemption; granting Defendants' joint motion to exclude Drs.
Madigan, Wells, Brown, and Gale; granting Defendants' joint motion
to exclude Drs. Landolph, Woolf, and Taylor; denying as moot
Plaintiffs' motion to exclude Drs. Thayer, Wang, and Scharfstein;
and granting Defendants' respective motions for summary judgment
based on lack of general causation.
The appellate case is captioned as Jean Adams v. Merck Sharp &
Dohme Corp., et al., Case No. 21-55342, in the United States Court
of Appeals for the Ninth Circuit, filed on April 9, 2021.
The briefing schedule in the Appellate Case states that:
-- Appellant Jean Adams Mediation Questionnaire is due today,
April 16, 2021;
-- Transcript shall be ordered by May 7, 2021;
-- Transcript is due by June 7, 2021;
-- Appellant Jean Adams opening brief is due on July 19, 2021;
-- Appellees Amylin Pharmaceuticals, Inc., Eli Lilly and
Company, Merck Sharp & Dohme Corp. and Novo Nordisk A/S answering
brief is due on August 19, 2021; and
-- Appellant's optional reply brief is due 21 days after service
of the answering brief.[BN]
Plaintiff-Appellant JEAN ADAMS, On Behalf of Herself and All Other
Similarly Situated Plaintiffs, is represented by:
Tor A. Hoerman, Esq.
TORHOERMAN LAW LLC
210 South Main Street
Edwardsville, IL 62025
Telephone: (618) 656-4400
E-mail: thoerman@torhoermanlaw.com
- and -
Michael Kenneth Johnson, Esq.
JOHNSON BECKER PLLC
444 Cedar Street, Suite 1800
St. Paul, MN 55101
Telephone: (612) 436-1802
E-mail: mjohnson@johnsonbecker.com
- and -
Hunter J. Shkolnik, Esq.
NSPR LAW SERVICES, LLC
270 Munoz Rivera Avenue, Suite 201
Hato Rey, PR 00918
Telephone: (833) 271-4502
E-mail: hunter@napolibern.com
- and -
Ryan L. Thompson, Esq.
WATTS GUERRA LLP
4 Dominion Drive, Building 1
San Antonio, TX 78257
Telephone: (210) 448-0500
E-mail: rthompson@wattsguerra.com
Defendants-Appellees MERCK SHARP & DOHME CORP., FKA Merck & Co.
Inc., AMYLIN PHARMACEUTICALS, INC., ELI LILLY AND COMPANY, and NOVO
NORDISK A/S are represented by:
Douglas R. Marvin, Esq.
Ana Cecilia Reyes, Esq.
WILLIAMS & CONNOLLY LLP
725 Twelfth Street, NW
Washington, DC 20005
Telephone: (202) 434-5000
E-mail: dmarvin@wc.com
areyes@wc.com
- and -
Houman Ehsan, Esq.
Richard Blair Goetz, Esq.
O'MELVENY & MYERS LLP
400 South Hope Street, 18th Floor
Los Angeles, CA 90071
Telephone: (310) 553-6700
E-mail: hehsan@omm.com
rgoetz@omm.com
- and -
Amy Jean Laurendeau, Esq.
O'MELVENY & MYERS LLP
610 Newport Center Drive
Newport Beach, CA 92660
Telephone: (949) 823-7926
E-mail: alaurendeau@omm.com
- and -
Kenneth J. King, Esq.
TROUTMAN PEPPER HAMILTON SANDERS LLP
620 Eighth Avenue, 37th Floor
New York, NY 10018
Telephone: (212) 808-2703
E-mail: kingk@pepperlaw.com
- and -
Loren Brown, Esq.
DLA PIPER US, LLP
1251 Avenue of the Americas
New York, NY 10020-1104
Telephone: (212) 335-4846
E-mail: loren.brown@dlapiper.com
- and -
Stanley Joseph Panikowski, III, Esq.
DLA PIPER LLP (US)
401 B Street, Suite 1700
San Diego, CA 92101-4297
Telephone: (619) 699-2643
E-mail: stanley.panikowski@dlapiper.com
- and -
Raymond Michael Williams, Esq.
DLA PIPER LLP (US)
One Liberty Place
1650 Market Street
Philadelphia, PA 19103-7300
Telephone: (215) 656-3330
E-mail: raymond.williams@dlapiper.com
MILLENDO THERAPEUTICS: Bid for Partial Lifting of Stay Pending
--------------------------------------------------------------
Millendo Therapeutics, Inc. said in its Form 10-K report filed with
the U.S. Securities and Exchange Commission on March 29, 2021, for
the fiscal year ended December 31, 2020, that the parties' request
for partial lifting of the stay to the extent required for the
court to rule on the Company's pending motion to strike and motions
to dismiss filed by other defendants, is pending.
On March 24, 2017, a purported shareholder class action lawsuit was
filed in the U.S. District Court for the District of Massachusetts
(Dahhan v. OvaScience, Inc., No. 1:17-cv-10511-IT (D. Mass.))
against OvaScience and certain former officers of OvaScience
alleging violations of Sections 10(b) and 20(a) of the Exchange
Act.
On July 5, 2017, the court entered an order approving the
appointment of Freedman Family Investments LLC as lead plaintiff,
the firm of Robins Geller Rudman & Dowd LLP as lead counsel and the
Law Office of Alan L. Kovacs as local counsel.
Plaintiff filed an amended complaint on August 25, 2017. The
Company filed a motion to dismiss the amended complaint, which the
court denied on July 31, 2018. On August 14, 2018, the Company
answered the amended complaint.
On December 9, 2019, the court granted leave for the lead plaintiff
to file a second amended complaint under seal and permitted the
defendants to file a motion to strike the second amended complaint.
On December 30, 2019, the court granted the parties' joint motion
to stay all proceedings in the case pending mediation. On March 3,
2020, the parties conducted a mediation session. The mediation was
unsuccessful.
The Company filed a motion to strike the second amended complaint
on May 1, 2020. The Company believes that the amended complaint and
the second amended complaint are without merit. On August 17, 2020,
the court granted the parties' joint motion to stay all proceedings
in the case pending mediation.
The parties agreed to participate in a second mediation session on
November 10, 2020. On October 16, 2020, the court granted the
parties' joint request to extend the stay until November 16, 2020.
On November 16, 2020, the parties filed a joint status report
seeking to extend the stay for an additional thirty days.
On November 17, 2020, the court ordered the parties to file a
supplemental joint status report clarifying whether they sought a
continuance of the stay of all proceedings or instead, a partial
lifting of the stay.
On November 19, 2020, the parties filed a joint status report
seeking to continue a partial stay of the case while the parties
engaged in additional settlement discussions, and a partial lifting
of the stay to the extent required for the court to rule on the
Company's pending motion to strike and motions to dismiss filed by
other defendants. Those motions remain pending.
Millendo said, "A resolution of this lawsuit adverse to the Company
or the other defendants could have a material effect on the
Company's consolidated financial position and results of
operations. At present, the Company is unable to estimate potential
losses, if any, related to the lawsuit."
Millendo Therapeutics, Inc., a clinical-stage biopharmaceutical
company, engages in the development of various treatments for
orphan endocrine diseases in the United States. The company is
based in Ann Arbor, Michigan.
NCINO INC: Faces Putative Class Action in North Carolina
--------------------------------------------------------
nCino, Inc. said in its Form 10-K report filed with the U.S.
Securities and Exchange Commission on March 31, 2021, for the
fiscal year ended January 31, 2021, that the company is facing a
putative class action suit filed in the United States District
Court for the Eastern District of North Carolina.
On March 12, 2021, a putative class action complaint was filed in
the United States District Court for the Eastern District of North
Carolina.
The sole class representative in the suit is one individual
alleging a contract, combination or conspiracy between and among
the Company, Live Oak Bancshares, Inc. and Apiture LLC not to
solicit or hire each other's employees in violation of Section 1 of
the Sherman Act and N.C. Gen Stat. Sections 75-1 and 75-2. The
complaint seeks treble damages and additional remedies, including
restitution, disgorgement, reasonable attorneys' fees, the costs of
the suit, and pre-judgment and post-judgment interest.
The complaint does not allege any specific damages.
nCino said, "Although there can be no assurance with respect to the
outcome of this matter, the Company believes the alleged claims are
not meritorious and intends to defend itself vigorously."
nCino, Inc. is a leading global provider of cloud-based software
for financial institutions. The company empowers banks and credit
unions with the technology they need to meet ever-changing client
expectations and regulatory requirements, gain increased visibility
into their operations and performance, replace legacy systems, and
operate digitally and more competitively. The company is based in
Wilmington, North Carolina.
NEW YORK LIFE: Order Certifying Two Classes in Gold Suit Affirmed
-----------------------------------------------------------------
In the case, AVRAHAM GOLD ET AL., Plaintiffs-Respondents v. NEW
YORK LIFE INSURANCE CO., ET AL., Defendants-Appellants, Index No.
653923/12, Appeal No. 13525, Case No. 2020-02641 (N.Y. App. Div.),
the Appellate Division of the Supreme Court of New York, First
Department, unanimously modified, on the law, the Order of Judge O.
Peter Sherwood of the Supreme Court of New York County entered on
May 28, 2020.
The order granted the Plaintiffs' motion to certify two classes of
the Plaintiffs pursuant to CPLR 901, to exclude from each class
those individuals who signed the 2011 or later contracts, which
contained arbitration provisions, and otherwise affirmed, without
costs.
Given the written, standardized agreements and practices of the
Defendants, the Appellate Division finds that common issues will
likely predominate on the issue of establishing liability under
Labor Law Section 193 and on the issue of whether certain agents
are independent contractors. Because the named Plaintiffs have no
conflict of interest with the class members and because they have
the same claims under the same theories, it holds that they
satisfied both adequacy and typicality under CPLR 901.
The Appellate Division also finds that arbitration and waiver
clause of the Defendants' agreements from 2011 onward are
enforceable. Since the provisions, by their plain terms, bar
signatories from being members of a class action, those individuals
must be excluded from the certified classes.
Finally, while the phase of the action may involve separate
calculations for the individual class members, it does not militate
against certification.
This constitutes the decision and order of the Appellate Division.
A full-text copy of the Court's April 6, 2021 Order is available at
https://tinyurl.com/47uj9ydn from Leagle.com.
Morgan, Lewis & Bockius LLP, New York (Sean P. Lynch --
slynch@morganlewis.com -- of counsel), and (Michael L. Banks -- --
mbanks@morganlewis.com -- of the bar of the Commonwealth of
Pennsylvania, admitted pro hac vice, of counsel), for appellants.
Lovell Stewart Halebian Jacobson LLP, New York (John Halebian --
jhalebian@lshllp.com -- of counsel), for respondents.
NOVA LIFESTYLE: April 24 Final Pretrial Conference in Barney Action
-------------------------------------------------------------------
Nova LifeStyle, Inc. said in its Form 10-K report filed with the
U.S. Securities and Exchange Commission on March 29, 2021, for the
fiscal year ended December 31, 2020, that a final pre-trial
conference in the "Barney Action" is set for April 24, 2021.
On December 28, 2018, a federal putative class action complaint was
filed by George Barney against the Company and its former and
current CEOs and CFOs (Thanh H. Lam, Ya Ming Wong, Jeffery Chuang
and Yuen Ching Ho) in the United States District Court for the
Central District of California, claiming the Company violated
federal securities laws and pursuing remedies under Sections 10(b)
and 20(a) of the Security Exchange Act of 1934 and Rule 10b-5.
Richard Deutner and ITENT EDV were subsequently substituted as
plaintiffs and, on June 18, 2019, they filed an Amended Complaint.
In an Amended Complaint, plaintiffs seek to represent a class of
entities purchasing stock in Nova from December 3, 2015 through
December 20, 2018.
They claim that during this period the Company: (1) overstated its
purported strategic alliance with a customer in China to operate as
lead designer and manufacturer for all furnishings in such
customer's planned $460 million senior care center in China; and
(2) inflated its reported sales in 2016 and 2017 with two major
customers.
Plaintiffs claim that the falsity of these representations was
exposed in a blog posted on Seeking Alpha website in which it was
claimed that an investigation failed to confirm the existence of
several entities identified as significant customers.
Plaintiffs, however, have offered little in support of their claims
other than to quote at length from the Seeking Alpha blog.
By Order entered December 2, 2019, the Court denied a Motion to
Dismiss the Amended Complaint that Nova, Ms. Lam and Mr. Chuang
filed by the Nova Defendants. The Nova Defendants accordingly
answered the Amended Complaint.
The Court entered a scheduling order setting a final pretrial
conference for July 20, 2020 that has since twice been extended
until April 24, 2021.
Nova LifeStyle, Inc., together with its subsidiaries, designs,
manufactures, markets, and sells residential and commercial
furniture for middle and upper middle-income consumers worldwide.
Nova LifeStyle, Inc. was founded in 2003 and is headquartered in
Commerce, California.
OH MY GREEN: Accord on Prelim Approval of Kastler Settlement Okayed
-------------------------------------------------------------------
The U.S. District Court for the Northern District of California
approves the Parties' Joint Stipulation Regarding Motion for
Preliminary Approval, dated April 2, 2021, in the lawsuit entitled
ANNE KASTLER, individually, and on behalf of other members of the
general public similarly situated, Plaintiff v. OH MY GREEN, INC.,
an unknown business entity; and DOES 1 through 100, inclusive,
Defendants, Case No. 4:19-CV-02411-HSG (N.D. Cal.).
The Court directs the Plaintiff to file a Motion for Preliminary
Approval of Class Action Settlement by April 28, 2021.
A full-text copy of the Court's Order dated April 5, 2021, is
available at https://tinyurl.com/5capu44e from Leagle.com.
Edwin Aiwazian -- edwin@calljustice.com -- Arby Aiwazian --
arby@calljustice.com -- Jenay Younger -- jenay@calljustice.com --
Kenyon Harbison -- kenyon@lfjpc.com -- LAWYERS for JUSTICE, PC, in
Glendale, California, Attorneys for Plaintiff ANNE KASTLER
DAVID R. ONGARO -- dongaro@ongaropc.com -- CARA R. SHERMAN --
csherman@ongaropc.com -- AMANDA S. GIANNINOTO --
agianninoto@ongaropc.com -- ONGARO PC, in San Francisco,
California, Attorneys for Defendant OH MY GREEN, INC.
Graham B. LippSmith -- contact@lippsmith.com -- Celene Chan
Andrews, LIPPSMITH LLP, in Los Angeles, California.
OLAM SPICES: Prelim. Approval Hearing of Beltran Deal on April 28
-----------------------------------------------------------------
In the case, THOMAS BELTRAN, et al., Plaintiffs v. OLAM SPICES AND
VEGETABLES, INC., Defendant, Case No. 1:18-cv-01676-NONE-SAB (E.D.
Cal.), Magistrate Judge Stanley A. Boone of the U.S. District Court
for the Eastern District of California continued to April 28, 2021,
at 10:00 a.m., the hearing on the motion for preliminary approval
of the class action and collective action settlement.
On March 9, 2021, the motion for preliminary approval was
re-referred to Magistrate Judge Boone for further consideration in
light of supplemental briefing that had been filed. On March 23,
2021, an order issued setting a hearing on the motion for April 7,
2021, and providing the parties with the opportunity to file
supplemental briefing. On April 5, 2021, a supplemental brief was
filed.
The supplemental brief states that the parties are going to revise
the settlement agreement to address some of the concerns raised in
the March 23, 2021 order and requests a two-week extension of time
to submit supplemental briefing.
Magistrate Judge Boone grants the request for a continuance of the
deadline to file supplemental briefing to allow the parties to
submit a revised settlement agreement and the hearing set for April
7, 2021, is continued. The parties will file supplemental briefing
by April 21, 2021. The hearing set for April 7, 2021, is continued
to April 28, 2021, at 10:00 a.m. in Courtroom 9.
A full-text copy of the Court's April 6, 2021 Order is available at
https://tinyurl.com/vcn2n3ts from Leagle.com.
OSMOTICA PHARMA: Settlement Reached in Consolidated NJ Suit
-----------------------------------------------------------
Osmotica Pharmaceuticals plc said in its Form 10-K report filed
with the U.S. Securities and Exchange Commission on March 30, 2021,
for the fiscal year ended December 31, 2020, that an agreement in
principle has been reached to settle the consolidated putative
class action suit filed in Superior Court of New Jersey, Somerset
County.
On April 30, 2019, Osmotica Pharmaceuticals plc was served with a
complaint in an action entitled Leo Shumacher, et al., v. Osmotica
Pharmaceuticals plc, et al., Superior Court of New Jersey, Somerset
County No. SOM-L-000540-19.
On May 10, 2019, a Complaint entitled Jeffrey Tello, et al., v.
Osmotica Pharmaceuticals plc, et al., Superior Court of New Jersey,
Somerset County No. SOM-L-000617-19 was filed in the same court as
the Shumacher action.
The complaints named the company, certain of its directors and
officers and the underwriters of its initial public offering as
defendants in putative class actions alleging violations of
Sections 11 and 15 of the Securities Act of 1933 related to the
disclosures contained in the registration statement and prospectus
used for our initial public offering of ordinary shares.
On July 22, 2019, the plaintiffs filed an amended complaint
consolidating the two actions, reiterating the previously pled
allegations and adding an additional individual defendant.
The parties participated in a mediation and reached an agreement in
principle to settle the litigation on December 15, 2020.
The agreement in principle calls for a payment by the Company of
$5.25 million (a portion of which the company expects would be
covered by applicable insurance) and would fully resolve all claims
asserted in the litigation against all defendants named in the
litigation, including the Company.
No party would admit any wrongdoing as part of the proposed
settlement, which was reached to avoid the further cost and
distraction of litigation. The agreement in principle contemplates
the negotiation and execution of a final settlement agreement. The
settlement is also subject to preliminary approval by the Superior
Court of New Jersey, notice to the putative class, and subsequent
final approval by the Superior Court of New Jersey
Osmotica Pharmaceuticals plc, an integrated biopharmaceutical
company, focuses on the development and commercialization of
pharmaceutical products in the United States, Argentina, and
Hungary. Osmotica Pharmaceuticals plc is headquartered in
Bridgewater, New Jersey.
PARKING REIT: Bid to Dismiss SIPDA Class Action Tossed
------------------------------------------------------
The Parking REIT, Inc. said in its Form 10-K report filed with the
U.S. Securities and Exchange Commission on March 31, 2021, for the
fiscal year ended December 31, 2020, that the company's motion to
dismiss the purported class action suit initiated by SIPDA
Revocable Trust.
On March 12, 2019, stockholder SIPDA Revocable Trust filed a
purported class action complaint in the United States District
Court for the District of Nevada, against the Company and certain
of its current and former officers and directors. SIPDA filed an
Amended Complaint on October 11, 2019.
The Amended Complaint purports to assert class action claims on
behalf of all public shareholders of the Company and MVP I between
August 11, 2017 and April 1, 2019 in connection with the (i) August
2017 proxy statements filed with the SEC to obtain shareholder
approval for the merger of the Company and MVP I, and (ii) August
2018 proxy statement filed with the SEC to solicit proxies for the
election of certain directors.
The Amended Complaint alleges, among other things, that the 2017
proxy statements failed to disclose that two major reasons for the
merger and certain charter amendments implemented in connection
therewith were (i) to facilitate the execution of an amended
advisory agreement that allegedly was designed to benefit Mr.
Michael V. Shustek financially in the event of an internalization
and (ii) to give Mr. Shustek the ability to cause the Company to
internalize based on terms set forth in the amended advisory
agreement.
The Amended Complaint further alleges, among other things, that the
2018 proxy statement failed to disclose the Company's purported
plan to internalize its management function.
The Amended Complaint alleges, among other things, (i) that all
defendants violated Section 14(a) of the Exchange Act and Rule
14a-9 promulgated thereunder, by disseminating proxy statements
that allegedly contain false and misleading statements or omit to
state material facts; (ii) that the director defendants violated
Section 20(a) of the Exchange Act; and (iii) that the director
defendants breached their fiduciary duties to the members of the
class and to the Company.
The Amended Complaint seeks, among other things, unspecified
damages; declaratory relief; and the payment of reasonable
attorneys' fees, accountants' and experts' fees, costs and
expenses.
On June 13, 2019, the court granted SIPDA's motion for Appointment
as Lead Plaintiff. The litigation is still at a preliminary stage.
On January 9, 2020, the Company and the Board of Directors moved to
dismiss the Amended Complaint.
Upon being advised by the parties that they are engaged in ongoing,
active settlement efforts, on November 30, 2020, the court denied
the pending motions to dismiss without prejudice as moot and
subject to refiling of the settlement efforts are not successful.
The Company and the Board of Directors have reviewed the
allegations in the Amended Complaint and believe the claims
asserted against them in the Amended Complaint are without merit
and intend to vigorously defend this action if the parties cannot
agree on settlement terms (which would include the Maryland
Actions).
The Parking REIT, Inc., formerly known as MVP REIT II, Inc., is a
Maryland corporation formed on May 4, 2015 and has elected to be
taxed, and has operated in a manner that will allow the Company to
qualify as a real estate investment trust for U.S. federal income
tax purposes beginning with the taxable year ended December 31,
2017; therefore, the Company intends to continue operating as a
REIT for the taxable year ended December 31, 2019. The company is
based in Las Vegas, Nevada.
PARKING REIT: Magowski and Barene Lawsuits Underway
---------------------------------------------------
The Parking REIT, Inc. said in its Form 10-K report filed with the
U.S. Securities and Exchange Commission on March 31, 2021, for the
fiscal year ended December 31, 2020, that the company continues to
defend putative class action suits entitled, Arthur Magowski v. The
Parking REIT, Inc., et. al, No. 24-C-19003125 (filed on May 31,
2019) and Michelle Barene v. The Parking REIT, Inc., et. al, No.
24-C-19003527 (filed on June 27, 2019).
On May 31, 2019, and June 27, 2019, alleged stockholders filed
class action lawsuits alleging direct and derivative claims against
the Company, certain of its officers and directors, MVP Realty
Advisors, Vestin Realty Mortgage I, and Vestin Realty Mortgage II
in the Circuit Court for Baltimore City, captioned Arthur Magowski
v. The Parking REIT, Inc., et. al, No. 24-C-19003125 (filed on May
31, 2019) and Michelle Barene v. The Parking REIT, Inc., et. al,
No. 24-C-19003527 (filed on June 27, 2019).
The Magowski Complaint asserts purportedly direct claims on behalf
of all stockholders (other than the defendants and persons or
entities related to or affiliated with any defendant) for breach of
fiduciary duty and unjust enrichment arising from the Company's
decision to internalize its advisory function.
In this Complaint, Plaintiff Magowski asserts that the stockholders
have allegedly been directly injured by the internalization and
related transactions.
The Barene Complaint asserts both direct and derivative claims for
breach of fiduciary duty arising from substantially similar
allegations as those contained in the Magowski Complaint.
The purportedly direct claims are asserted on behalf of the same
class of stockholder as the purportedly direct claims in the
Magowski Complaint, and the derivative claims in the Barene
Complaint are asserted on behalf of the Company.
On September 12 and 16, 2019, the defendants filed motions to
dismiss the Magowski and Barene complaints, respectively. The
Magowski and Barene Complaints seek, among other things, damages;
declaratory relief; equitable relief to reverse and enjoin the
internalization transaction; and the payment of reasonable
attorneys' fees, accountants' and experts' fees, costs and
expenses.
The actions are at a preliminary stage. The parties have requested
that these two cases be consolidated and stayed while the parties
pursue settlement efforts. The Company and the board of directors
intend to vigorously defend against these lawsuits if the parties
cannot agree on settlement terms (which would include the Federal
Action described above).
The Magowski Complaint also previewed that a stockholder demand
would be made on the Board to take action with respect to claims
belonging to the Company for the alleged injury to the Company.
On June 19, 2019, Magowski submitted a formal demand letter to the
Board asserting the same alleged wrongdoing as alleged in the
Magowski Complaint and demanding that the Board investigate the
alleged wrongdoing and take action to remedy the alleged injury to
the Company.
The demand includes that claims be initiated against the same
defendants as are named in the Magowski Complaint. In response to
this stockholder demand letter, on July 16, 2019, the Board
established a demand review committee of one independent director
to investigate the allegations of wrongdoing made in the letter and
to make a recommendation to the Board for a response to the letter.
On September 27, 2019, the Board replaced the demand review
committee with a special litigation committee.
The special litigation committee is responsible for investigating
the allegations of wrongdoing made in the letter and making a final
determination regarding the response for the Company to the demand.
The work of the special litigation committee is ongoing.
The Parking REIT, Inc., formerly known as MVP REIT II, Inc., is a
Maryland corporation formed on May 4, 2015 and has elected to be
taxed, and has operated in a manner that will allow the Company to
qualify as a real estate investment trust ("REIT") for U.S. federal
income tax purposes beginning with the taxable year ended December
31, 2017; therefore, the Company intends to continue operating as a
REIT for the taxable year ended December 31, 2019. The company is
based in Las Vegas, Nevada.
PARTNER COMMS: Class Status Bid in Suit vs. 012 Smile Granted
-------------------------------------------------------------
Partner Communications Company Ltd. said in its Form 20-F report
filed with the U.S. Securities and Exchange Commission on March 25,
2021, for the fiscal year ended December 31, 2020, that the Court
approved the request to certify the claim as a class action in the
suit against 012 Smile.
On April 21, 2016, a claim and a motion to certify the claim as a
class action were filed against 012 Smile.
The claim alleges that the infrastructure included in the 012
Smile's plans does not support data speeds that the Company
publishes to its customers.
The total amount claimed against the Company if the lawsuit is
certified as a class action was not stated by the plaintiffs.
In January 2021, the Court approved the request to certify the
claim as a class action.
Partner Communications Company Ltd. is a leading Israeli provider
of telecommunications services (cellular, fixed-line telephony,
internet and television services). Partner's ADSs are quoted on the
NASDAQ Global Select Market(TM) and its shares are traded on the
Tel Aviv Stock Exchange.
PARTNER COMMS: Customers Class Action vs. 012 Smile Underway
------------------------------------------------------------
Partner Communications Company Ltd. said in its Form 20-F report
filed with the U.S. Securities and Exchange Commission on March 25,
2021, for the fiscal year ended December 31, 2020, that 012 Smile
continues to defend a class action suit initiated by its
customers.
On November 12, 2015, a claim and a motion to certify the claim as
a class action were filed against 012 Smile.
The claim alleges that 012 Smile required their customers to
purchase a Smartbox device which is terminal equipment as a
condition for using its fixed-line telephony services, an action
which would not be in accordance with the provisions of its
licenses.
The total amount claimed against 012 Smile is estimated by the
plaintiff to be approximately NIS 64 million.
In February 2019, the Court approved the request to certify the
claim as a class action with certain changes.
In March 2019, the Company filed an appeal of this decision.
In February 2020, the Supreme Court dismissed the appeal request
that was filed and the claim was reverted back to the District
Court and the proceedings have resumed.
Partner Communications Company Ltd. is a leading Israeli provider
of telecommunications services (cellular, fixed-line telephony,
internet and television services). Partner's ADSs are quoted on the
NASDAQ Global Select Market(TM) and its shares are traded on the
Tel Aviv Stock Exchange.
PARTNER COMMS: Data Speed-Related Suit Still Ongoing
----------------------------------------------------
Partner Communications Company Ltd. said in its Form 20-F report
filed with the U.S. Securities and Exchange Commission on March 25,
2021, for the fiscal year ended December 31, 2020, that the company
continues to defend a lawsuit alleging that the company's plan does
not support data speeds that the company publishes to its
customers.
On September 24, 2017, a claim and a motion to certify the claim as
a class action were filed against the Company and Partner
Land-Line.
The claim alleges that the infrastructure included in the Company's
plan does not support data speeds that the Company publishes to its
customers.
The applicant noted that it cannot estimate the total amount
claimed in the lawsuit, should the lawsuit be certified as a class
action.
The claim is still in its preliminary stage of the motion to be
certified as a class action.
No further updates were provided in the Company's SEC report.
Partner Communications Company Ltd. is a leading Israeli provider
of telecommunications services (cellular, fixed-line telephony,
internet and television services). Partner's ADSs are quoted on the
NASDAQ Global Select Market(TM) and its shares are traded on the
Tel Aviv Stock Exchange.
PARTNER COMMS: Facing Advertisement Messages Related Suit
---------------------------------------------------------
Partner Communications Company Ltd. said in its Form 20-F report
filed with the U.S. Securities and Exchange Commission on March 25,
2021, for the fiscal year ended December 31, 2020, that the company
is facing a putative class action suit related to its advertisement
messages.
On September 15, 2020, a claim and a motion to certify the claim as
a class action were filed against the Company.
The claim alleges that the Company unlawfully sent advertisement
messages to customers that did not agree to receive such messages.
The claim also alleges that advertisement messages were sent
without including the possibility for the recipients to remove
themselves from the Company's mailing lists or did not include
means of contacting the Company or did not clarify that this is an
advertisement and that the recipients had a right to send a refusal
to receive the message and that the Company continued to send
advertisement messages to customers that requested to be removed
from the mailing lists.
The total amount claimed against the Company was not stated by the
applicants (however the claim was estimated by the applicants to be
over NIS 2.5 million).
The claim is still in its preliminary stage of the motion to be
certified as a class action.
Partner Communications Company Ltd. is a leading Israeli provider
of telecommunications services (cellular, fixed-line telephony,
internet and television services). Partner's ADSs are quoted on the
NASDAQ Global Select Market(TM) and its shares are traded on the
Tel Aviv Stock Exchange.
PARTNER COMMS: Withdrawal Settlement in Class Suit Approved
-----------------------------------------------------------
Partner Communications Company Ltd. said in its Form 20-F report
filed with the U.S. Securities and Exchange Commission on March 25,
2021, for the fiscal year ended December 31, 2020, that the
withdrawal settlement filed by the parties in the putative class
action suit related to unlawful charges made to the customers for
speakers and/or tablets and/or other accessories, has been
approved.
On August 18, 2019, a claim and a motion to certify the claim as a
class action were filed against the Company.
The claim alleges that the Company unlawfully charges customers
that terminate their engagement with the Company, for speakers
and/or tablets and/or other accessories they received from the
Company as gifts while they were subscribers of the Company, and at
a full and excessive price.
The total amount claimed against the Company if the lawsuit is
recognized as a class action, was not stated by the applicant.
The parties filed a withdrawal settlement which was approved by the
Court in April 2020.
No further updates were provided in the Company's SEC report.
Partner Communications Company Ltd. is a leading Israeli provider
of telecommunications services (cellular, fixed-line telephony,
internet and television services). Partner's ADSs are quoted on the
NASDAQ Global Select Market(TM) and its shares are traded on the
Tel Aviv Stock Exchange.
PAYSIGN INC: Bid to Nix Consolidated Securities Class Suit Pending
------------------------------------------------------------------
Paysign, Inc. said in its Form 10-K report filed with the U.S.
Securities and Exchange Commission on March 26, 2021, for the
fiscal year ended December 31, 2020, that the motion to dismiss
filed in the consolidated class action suit entitled, In re
Paysign, Inc. Securities Litigation, is pending.
The Company has been named as a defendant in three complaints filed
in the United States District Court for the District of Nevada:
Yilan Shi v. Paysign, Inc. et. al., filed on March 19, 2020, Lorna
Chase v. Paysign, Inc. et. al., filed on March 25, 2020, and Smith
& Duvall v. Paysign, Inc. et. al., filed on April 2, 2020.
Smith was voluntarily dismissed on May 21, 2020.
On May 18, 2020, the Shi plaintiffs and another entity called the
Paysign Investor Group each filed a motion to consolidate the
remaining Shi and Chase actions and to be appointed lead plaintiff.
The Complaints are putative class actions filed on behalf of a
class of persons who acquired the Company's common stock from March
12, 2019 through March 31, 2020, inclusive.
The Complaints generally allege that the Company, Mark R. Newcomer,
and Mark Attinger violated Section 10(b) of the Exchange Act, and
that Messrs. Newcomer and Attinger violated Section 20(a) of the
Exchange Act, by making materially false or misleading statements,
or failing to disclose material facts, regarding the Company's
internal control over financial reporting and its financial
statements.
The Complaints seek class action certification, compensatory
damages, and attorney's fees and costs.
On December 2, 2020, the Court consolidated Shi and Chase as In re
Paysign, Inc. Securities Litigation and appointed the Paysign
Investor Group as lead plaintiff.
On January 12, 2021, Plaintiffs filed an Amended Complaint in the
consolidated action. Defendants filed a Motion to Dismiss the
Amended Complaint on March 15, 2021.
Paysign, Inc. a vertically integrated provider of prepaid card
programs and processing services for corporate, consumer and
government applications. The company's payment solutions are
utilized by its corporate customers as a means to increase customer
loyalty, increase patient adherence rates, reduce administration
costs and streamline operations. The company is based in Henderson,
Nevada.
PDL BIOPHARMA: Continues to Defend City of Providence Suit
-----------------------------------------------------------
PDL BioPharma, Inc. said in its Form 10-K report filed with the
U.S. Securities and Exchange Commission on March 29, 2021, for the
fiscal year ended December 31, 2020, that the company continues to
defend a putative class action suit initiated by the City of
Providence.
On September 18, 2019, the City of Providence filed a civil
antitrust suit on behalf of a putative class of payors in the
Northern District of California against Bausch Health Companies,
Inc., Salix Pharmaceuticals, Inc., Santarus, Inc., Assertio
Therapeutics, Inc., Lupin Pharmaceuticals, Inc. and the Company,
inter alia, alleging that a patent settlement agreement between
Assertio and Lupin unlawfully restrained competition in an alleged
market for Glumetza and its AB-rated generic equivalents sold in
the United States.
The plaintiffs claim that the settlement agreement violated the
federal Sherman Act and various state antitrust laws.
The Company was a named defendant by certain End Payor Plaintiffs
(EPPs) due to its purchase from Assertio in 2013 of a royalty asset
based on sales of Glumetza.
On January 21, 2020, the EPPs voluntarily dismissed their claims
against the Company, without prejudice.
The Company agreed to toll the running of statute of limitations
for a limited period of time and to respond to certain discovery
requests, subject to reasonable objections, which time period has
elapsed.
PDL BioPharma, Inc. manages a portfolio of patents and royalty
assets, consisting primarily of its Queen et al. antibody
humanization patents and license agreements with various
biotechnology and pharmaceutical companies. The Company is focused
on intellectual property asset management and acquiring new
income-generating assets. The company is based is Incline Village,
Nevada.
PETROBRAS: Continues to Defend Class Action in Netherlands
----------------------------------------------------------
Petroleo Brasileiro S.A. - Petrobras said in its Form 20-F report
filed with the U.S. Securities and Exchange Commission on March 25,
2021, for the fiscal year ended December 31, 2020, that the company
continues to defend a class action suit in Netherlands, initiated
by the Stichting Petrobras Compensation Foundation.
On January 23, 2017, the Stichting Petrobras Compensation
Foundation filed a class action before the district court in
Rotterdam, in the Netherlands, against Petrobras parent company and
Petrobras International Braspetro B.V. (PIBBV), Petrobras Global
Finance B.V. (PGF), Petrobras Oil & Gas B.V. (PO&G) and some former
managers of Petrobras.
The Foundation allegedly represents the interests of an
unidentified group of investors and alleges that based on the facts
uncovered by the Lava Jato investigation the defendants acted
unlawfully towards investors. Based on the allegations, the
Foundation seeks a number of declaratory relieves from the Dutch
court.
The Company filed their first response to the claim on May 3, 2017
(first docket date), presenting the law firms that will defend
these companies and requesting a hearing to discuss some aspects of
the case.
On August 23, 2017, a hearing was held at the District Court in
Rotterdam to establish the timeframe for proceedings. Petrobras
(and other defendants) presented preliminary defenses on November
29, 2017 and the Foundation presented its response on March 28,
2018.
On June 28, 2018, a hearing was held for the parties to present
oral arguments. On September 19, 2018, the Court rendered its
interim decision in the motion proceedings in which it accepted
jurisdiction in most of 7 claims of the Foundation, without any
assessment on the merits of the case.
On January 29, 2020, the Court determined that shareholders who
understand Portuguese and/or who bought shares through
intermediaries or other agents who understand that language, among
other shareholders, are subject to the arbitration clause provided
for in the Company's Bylaws, remaining out of the collective action
proposed by the Foundation. The Court also considered the binding
effect of the agreement signed to close the United States' Class
action.
In this way, the Foundation needs to demonstrate that it represents
a sufficient number of investors to justify pursuing collective
action in the Netherlands. The Foundation and the Company presented
the oral arguments at a hearing held on January 26, 2021.
Petrobras said, "This collective action involves complex issues
that are subject to substantial uncertainties and depend on a
number of factors such as the standing of the Foundation as the
alleged representative of the investors' interests, the applicable
rules to this complaint, the information produced the evidentiary
phase of the proceedings, analysis by experts, the timing of court
decisions and rulings by the court on key issues, and the
Foundation only seeks declaratory reliefs in this collective
action. Currently, it is not possible to determine if the Company
will be found responsible for the payment of compensation in
subsequent individual complaints after this action as this
assessment depends on the outcome of these complex issues.
Moreover, it is uncertain which investors will be able to file
subsequent individual complaints related to this matter against the
Company."
Petroleo Brasileiro S.A. - Petrobras explores for and produces oil
and natural gas. The Company refines, markets, and supplies oil
products. Petrobras operates oil tankers, distribution pipelines,
marine, river and lake terminals, thermal power plants, fertilizer
plants, and petrochemical units. The Company operates in South
America and elsewhere around the world.
PLBY GROUP: Facing Scott Putative Class Suit in Los Angeles
-----------------------------------------------------------
PLBY Group, Inc. said in its Form 8-K/A filing with the U.S.
Securities and Exchange Commission filed on March 31, 2021, that
the company is facing a purported class action suit initiated by
Lathario Scott.
On January 19, 2021, Lathario Scott filed a purported class action
lawsuit against Playboy in Los Angeles Superior Court.
Scott alleges that Playboy used software to track his and purported
class members' electronic communications on Playboy's website
(http://www.playboy.com/),including their mouse movements and
clicks, information inputted into the site and content viewed on
the site, and that such actions violated the Florida Security of
Communications Act.
Scott seeks to certify a class of persons residing in the State of
Florida who visited Playboy's website and whose electronic
communications were tracked without their consent. Plaintiff seeks
declaratory and injunctive relief, as well as compensatory,
statutory and other damages.
On March 18, 2021, the case was removed to the United States
District Court for the Central District of California.
PLBY said, "We believe such claims are without merit and we intend
to defend Playboy and the Company vigorously in this matter."
PLBY Group, Inc. is an American global media and lifestyle company
founded by Hugh Hefner to oversee the Playboy magazine and related
assets. It is currently headquartered in Los Angeles, California.
POLARITYTE INC: Court Junks Consolidated Securities Class Suit
--------------------------------------------------------------
PolarityTE, Inc. said in its Form 10-K report filed with the U.S.
Securities and Exchange Commission on March 30, 2021, for the
fiscal year ended December 31, 2020, that the court issued an order
dismissing the consolidated class action suit entitled, In re
PolarityTE, Inc. Securities Litigation with Case No.
2:18-cv-00510.
On June 26, 2018, a class action complaint alleging violations of
the Federal securities laws was filed in the United States District
Court, District of Utah, by Jose Moreno against the Company and two
directors of the Company, Case No. 2:18-cv-00510-JNP.
On July 6, 2018, a similar complaint was filed in the same court
against the same defendants by Yedid Lawi, Case No.
2:18-cv-00541-PMW.
On November 28, 2018, the Court consolidated the Moreno and Lawi
cases under the caption In re PolarityTE, Inc. Securities
Litigation with Case No. 2:18-cv-00510.
The gravamen of the consolidated complaint in the Consolidated
Securities Litigation was that defendants made statements or
disseminated information to the public through reports filed with
the Securities and Exchange Commission and other channels that
contained material misstatements or omissions in violation of
Sections 10 and 20(a) of the Exchange Act and Rule 10b-5 adopted
thereunder, specifically that the defendants misrepresented the
status of one of the Company's patent applications while touting
the unique nature of the Company's technology and its
effectiveness.
The Company filed a motion to dismiss the consolidated complaint on
June 3, 2019. Plaintiffs' opposition to the Company's motion to
dismiss was filed on August 2, 2019, and the Company filed a reply
to the opposition on September 13, 2019.
Following a hearing on the Company's motion to dismiss the Court
issued an order on November 22, 2020, dismissing the complaint in
the Consolidated Securities Litigation with prejudice.
PolarityTE, Inc., a biotechnology and regenerative biomaterials
company, focuses on discovering, designing, and developing a range
of regenerative tissue products and biomaterials for the fields of
medicine, biomedical engineering, and material sciences in the
United States. The company operates in two segments, Regenerative
Medicine and Contract Services. PolarityTE, Inc. is headquartered
in Salt Lake City, Utah.
PORCH GROUP: Former Employee Sues Over Unpaid Overtime
------------------------------------------------------
Porch Group, Inc said in its Form 10-K report filed with the U.S.
Securities and Exchange Commission on March 31, 2021, for the
fiscal year ended December 31, 2020, that HireAHelper(TM) is facing
a putative class action suit initiated by its former employee.
A former employee of HireAHelper(TM) filed a complaint in San Diego
County Superior Court asserting putative class action claims for
failure to pay overtime, failure to pay compensation at the time of
separation and unfair business practices in violation of California
law.
HireAHelper(TM) was served with the complaint in December 2020 and
on January 28, 2021 Defendants removed the case to the United
States District Court for the Southern District of California.
The plaintiff seeks to represent all current and former non-exempt
employees of HireAHelper(TM) and Legacy Porch in the State of
California during the relevant time period.
Porch said, "This action is at an early stage in the litigation
process and Porch is unable to determine the likelihood of an
unfavorable outcome, although it is reasonably possible that the
outcome may be unfavorable. Porch is unable to provide an estimate
of the range or amount of potential loss (if the outcome should be
unfavorable), however the parties have agreed to explore resolution
by way of a private non-binding mediation in the summer or fall of
2021. Porch intends to contest this case vigorously."
Porch Group, Inc is a vertical software platform for the home,
providing software and services to approximately 11,000 home
services companies, such as home inspectors, moving companies,
utility companies, home insurance, warranty companies, and others.
The company is based in Seattle, Washington
POWER SOLUTIONS: Treadwell Class Action Remains Stayed
------------------------------------------------------
Power Solutions International, Inc. said in its Form 10-K report
filed with the U.S. Securities and Exchange Commission on March 30,
2021, for the fiscal year ended December 31, 2020, that the class
action suit initiated by Jerome Treadwell is still stayed.
In October 2018, a putative class-action complaint was filed
against the Company and NOVAtime Technology, Inc. in the Circuit
Court of Cook County, Illinois.
In December 2018, NOVAtime removed the case to the U.S. District
Court for the Northern District of Illinois, Eastern Division under
the Class Action Fairness Act. Plaintiff has since voluntarily
dismissed NOVAtime from the lawsuit without prejudice and filed an
amended complaint in April 2019.
The operative, amended complaint asserts violations of the Illinois
Biometric Information Privacy Act ("BIPA") in connection with
employees' use of the time clock to clock in and clock out using a
finger scan and seeks statutory damages, attorneys' fees, and
injunctive and equitable relief.
An aggrieved party under BIPA may recover (i) $1,000 per violation
if the Company is found to have negligently violated BIPA or (ii)
$5,000 per violation if the Company is found to have intentionally
or recklessly violated BIPA plus reasonable attorneys' fees.
In May 2019, the Company filed its motion to dismiss the
plaintiff's amended complaint. In December 2019, the court denied
the Company's motion to dismiss.
In January 2020, the Company moved for reconsideration of the
court's order denying the motion to dismiss, or in the alternative,
to stay the case pending the Illinois Appellate Court's ruling in
McDonald v. Symphony Healthcare on a legal question that would be
potentially dispositive in this matter.
In February 2020, the court denied the Company's motion for
reconsideration, but required the parties to submit additional
briefing on the Company's motion to stay.
In April 2020, the Court granted the Company's motion to stay and
stayed the case pending the Illinois Appellate Court's ruling in
McDonald v. Symphony Healthcare.
In October 2020, after the McDonald ruling, the court granted the
parties' joint request to continue the stay of the case for 60
days. The court also ordered the parties to schedule a settlement
conference with the Magistrate Judge which has been scheduled for
early April 2021. The stay remains in place through the scheduled
settlement conference.
The parties have engaged in preliminary settlement discussions in
advance of the settlement conference.
As of December 31, 2020, the Company recorded an estimated
liability of $0.3 million related to the potential settlement of
this matter.
Power Solutions International, Inc. designs, engineers,
manufactures, markets, and sells engines and power systems
primarily in North America, the Pacific Rim, and Europe. Power
Solutions International, Inc. was founded in 1985 and is
headquartered in Wood Dale, Illinois.
PROTECTIVE LIFE: Still Defends Advance Trust Class Suit in Alabama
------------------------------------------------------------------
Protective Life Insurance Company said in its Form 10-K report
filed with the U.S. Securities and Exchange Commission on March 30,
2021, for the fiscal year ended December 31, 2020, that the company
continues to defend itself against a putative class action suit
entitled, Advance Trust & Life Escrow Services, LTA, as Securities
Intermediary of Life Partners Position Holder Trust v. Protective
Life Insurance Company, Case No. 2:18-CV-01290.
Advance Trust & Life Escrow Services, LTA, as Securities
Intermediary of Life Partners Position Holder Trust v. Protective
Life Insurance Company, Case No. 2:18-CV-01290, is a putative class
action that was filed on August 13, 2018 in the United States
District Court for the Northern District of Alabama.
Plaintiff alleges that the Company required policyholders to pay
unlawful and excessive cost of insurance charges.
Plaintiff seeks to represent all owners of universal life and
variable universal life policies issued or administered by the
Company or its predecessors that provide that cost of insurance
rates are to be determined based on expectations of future
mortality experience.
The plaintiff seeks class certification, compensatory damages,
pre-judgment and post-judgment interest, costs, and other
unspecified relief.
The Company is vigorously defending this matter and cannot predict
the outcome of or reasonably estimate the possible loss or range of
loss that might result from this litigation.
No further updates were provided in the Company's SEC report.
Protective Life Insurance Company, a stock life insurance company,
provides financial services through the production, distribution,
and administration of insurance and investment products primarily
in the United States. The company operates through Life Marketing,
Acquisitions, Annuities, Stable Value Products, and Asset
Protection segments. The company was founded in 1907 and is based
in Birmingham, Alabama. Protective Life Insurance Company is a
subsidiary of Protective Life Corporation.
QUTOUTIAO INC: Bid to Nix Putative Securities Class Suit Pending
----------------------------------------------------------------
Qutoutiao Inc. said in its Form 20-F report filed with the U.S.
Securities and Exchange Commission on March 26, 2021, for the
fiscal year ended December 31, 2020, that the motin to dismiss the
putative shareholder class action suit, is pending.
On August 20, 2020, the company and certain of its current and
former directors and officers were named as defendants in a
putative shareholder class action lawsuit filed in the United
States District Court for the Southern District of New York.
This action is brought on behalf of a putative class of persons who
purchased or acquired the company's securities pursuant or
traceable to the company's September 2018 initial public offering
or April 2019 secondary public offering, or otherwise acquired the
company's securities between September 14, 2018 and December 16,
2020.
The complaint alleges violations of Sections 11, 12(a)(2), and 15
of the Securities Act of 1933, Sections 10(b) and 20(a) of the
Securities Exchange Act of 1934, and Rule 10b-5 promulgated
thereunder based on alleged materially false or misleading
statements or omissions in offering documents and/or issued
throughout the Putative Class Period.
Lead Plaintiff was appointed, and a consolidated amended complaint
was filed on January 15, 2021.
The company filed a motion to dismiss such amended complaint on
March 16, 2021.
Qutoutiao Inc. operates innovative and fast-growing mobile content
platforms in China with a mission to bring fun and value to its
users.
READING INTERNATIONAL: Still Defends Brown & Wagner Class Lawsuits
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Reading International, Inc. said in its Form 10-K report filed with
the U.S. Securities and Exchange Commission on March 31, 2021, for
the fiscal year ended December 31, 2020, that the company still
defends itself against the class suits initiated by Taylor Brown
and Peter M. Wagner.
The Company is currently involved in two California employment
matters which include substantially overlapping wage and hour
claims: Taylor Brown, individually, and on behalf of other members
of the general public similarly situated vs. Reading Cinemas et al.
Superior Court of the State of California for the County of Kern,
Case No. BCV-19-1000390 ("Brown v. RC," and the "Brown Class Action
Complaint" respectively) and Peter M. Wagner, Jr., an individual,
vs. Consolidated Entertainment, Inc. et al., Superior Court of the
State of California for the County of San Diego, Case NO.
37-2019-00030695-CU-WT-CTL.
Brown v. RC was initially filed in December 2018, as an individual
action and refiled as a putative class action in February 2019, but
not served until June 24, 2019.
These lawsuits seek damages, and attorneys' fees, relating to
alleged violations of California labor laws relating to meal
periods, rest periods, reporting time pay, unpaid wages, timely pay
upon termination and wage statements violations.
Wagner v. CEI was filed as a discrimination and retaliation lawsuit
in June 2019. The following month, in July 2019, a notice was
served on us by separate counsel for Mr. Wagner under the
California Private Attorney General Act of 2004 (Cal. Labor Code
Section 2698, et seq) (the "Wagner PAGA Claim") purportedly
asserting in a representational capacity claims under the PAGA
statute, overlapping, in substantial part, the allegations set
forth in the Brown Class Action Complaint.
On March 6, 2020, Wagner filed a purported class action in the
Superior Court of California, County of San Diego, again covering
basically the same allegations as set forth in the Brown Class
Action Complaint, and titled Peter M. Wagner, an individual, on
behalf of himself and all others similarly situated vs. Reading
International, Inc., Consolidated Entertainment, Inc. and Does 1
through 25, Case No. 37-2020-000127-CU-OE-CTL. Neither plaintiff
has specified the amount of damages sought.
The Company is investigating and intends to vigorously defend the
allegations of the Brown Class Action Complaint, the Wagner PAGA
Claim and the Wagner Class Action Complaint.
In addition, the company had denied that a PAGA representative
action is appropriate.
These matters are in their early stages, and the putative class
actions have not been certified.
Reading International said, "As these cases are in early stages,
our Company is unable to predict the outcome of the litigation or
the range of potential loss, if any; however, our Company believes
that its potential liability with respect to such matters is not
material to its overall financial position, results of operations
and cash flows. Accordingly, our Company has not established a
reserve for loss in connection with these matters. The Wagner
Individual Complaint has been settled. As this matter was coved
by insurance, the Company's liability was limited to its deductible
of $150,000."
Reading International, Inc., is focused on the development,
ownership, and operation of entertainment and real estate assets in
the United States, Australia, and New Zealand. Currently, RDI
operates through two segments: cinema exhibition and real estate.
The cinema exhibition segment operates multiplex cinemas. RDI's
real estate segment includes real estate development and the rental
of retail, commercial and live theater assets. The Company is based
in Culver City, California.
SCHLUMBERGER LIFT: Certification of Classes in Garcia Suit Endorsed
-------------------------------------------------------------------
In the case, CRISTOBAL GARCIA, an individual, on behalf of himself
and all others similarly situated, Plaintiff v. SCHLUMBERGER LIFT
SOLUTIONS, et al., Defendants, Case No. 1:18-cv-01261-DAD JLT (E.D.
Cal.), Magistrate Judge Jennifer L. Thurston of the U.S. District
Court for the Eastern District of California recommends that the
Plaintiff's motion for class certification be granted in part and
denied in part.
Garcia asserts that he and others employed by the Defendants
suffered wage and hour law violations, including unpaid wages for
required tasks, uncompensated travel time, improper meal periods,
failure to pay wages timely after termination, and unfair business
practices.
The Plaintiff asserts that he was "employed in Kern County by the
Defendants as a non-exempt employee," beginning around April 2015.
Defendants Schlumberger Rod Lift, Inc. and Schlumberger Lift
Solutions, LLC "are the successive owner operators of the KBA
product line." KBA is an oil and gas servicing company that sells,
distributes, and maintains customer pumping units throughout
Southern California. The administrative office and main yard are
located in Bakersfield, California. The company supplies workers
for several locations on a regular basis, including locations in
Belridge, Taft, Lost Hills, Kern River, San Ardo, and Coalinga.
According to the Plaintiff, the Defendants failed to maintain and
furnish him and the Class members with accurate and complete wage
statements regarding their gross wages earned, total hours worked,
total net wages earned, the name and address of the entity that is
the legal employer, and all applicable hourly rates in effect. He
contends this failure to provide accurate wage statements resulted
in "he non-payment of all their regular and overtime wages and
deprived them of the information necessary to identify the
discrepancies in Defendants' reported data.
Furthermore, the Plaintiff asserts the Defendants had unlawful
policies related to their uniforms, and failed to indemnify him and
the other Class members for necessary expenditures and bosses
incurred by the employees in the direct discharge of their duties.
He alleges employees were required to wear uniforms and were
required to pay for costs associated with the laundering and upkeep
of those uniforms. He asserts employees were also "liable for
costs associated with damage of the uniforms," and the "damage
liability was broadly described to include normal wear and tear or
other accidental, incidental or inadvertent damage that may have
occurred during the execution of duties." The Plaintiff reports he
and other employees were required to sign a document that
acknowledged he was "just using the jacket" but was "responsible
for the maintenance of the jacket, including laundering," and
"agreed to follow the laundry instructions included with the
garment."
On June 5, 2018, the Plaintiff initiated the action by filing a
complaint in Kern County Superior Court, Case No. BCV-18-101388.
He filed a First Amended Complaint on Aug. 7, 2018, in which he
asserted the following claims: (1) failure to pay compensation due,
(2) meal period violations, (3) rest break violations, (4) failure
to furnish itemized wage statements, (5) failure to pay wages
timely upon termination, (6) failure to indemnify business
expenses, (7) violation of California Business and Professions Code
Section 17203, and (8) civil penalties pursuant to the California
Private Attorney General Act.
The Plaintiff asserted the first seven causes of action were
brought "for himself and on behalf of a class and sub-class
initially defined as follows:
a. Class: All non-exempt employees of any of the Defendants
who, at any time within the period beginning four years prior to
the filing of this action through the date of class certification,
worked in California.
b. Termination Pay Sub-Class: All members of the Class whose
employment terminated at any time within the period three years
prior to the filing of this action through the date of
certification.
After the Defendants were served with the First Amended Complaint,
they filed a Notice of Removal on Sept. 13, 2018, thereby
initiating the action in the Court.
On March 25, 2020, the parties engaged in mediation with Jeffrey
Krivis. As a result of a mediator's proposal, the Parties were
able to partially resolve the action with respect to the claim for
unpaid overtime on safety bonuses and related derivative claims.
Specifically, the parties agreed that the Plaintiff's first and
seventh causes of action survive as to Settlement Class Members
insofar as they rely upon any theory of recovery other than
miscalculation of regular rate/unpaid overtime on safety bonuses.
The fifth cause of action will be resolved, settled and released in
full, for the Settlement Class Members only. The fourth cause of
action will be resolved, settled and released in full, for the
Settlement Class Members only, as to any claims arising prior to
Jan. 19, 2019.
The Defendants agreed the partial settlement in the amount of
$525,000 for a class defined as: All non-exempt employees of
Schlumberger Lift Solutions LLC or Schlumberger Rod Lift, Inc. who
do not opt out of the settlement and who, at any time within the
period beginning June 5, 2014 and ending on January 19, 2019 (Class
Period), worked in California and received a safety bonus by
Schlumberger Lift Solutions LLC or Schlumberger Rod Lift, Inc.
pursuant to a safety bonus program of Schlumberger Lift Solutions
LLC or Schlumberger Rod Lift, Inc. at any time within the Class
Period.
The Court determined the proposed settlement was fair, reasonable,
and adequate. Therefore, the Court granted final approval of the
partial settlement on Dec. 15, 2020.
On July 10, 2020 -- while the partial settlement was pending
evaluation and approval -- the Plaintiff filed the motion now
pending before the Court related to claims that were not
encompassed in the agreement.
The Plaintiff requested certification of nine classes of
individuals who were employed by the Defendants, defined as
follows:
a. Class 1. Unpaid Wages Class -- Reporting to Dispatch: All
non-exempt field technicians of Schlumberger Lift Solutions LLC or
Schlumberger Rod Lift, Inc. who worked in California at any time
from June 5, 2014 through the date of class certification who were
not compensated for reporting to the dispatch manager at the
Bakersfield base office in person or telephone before they
clocked-in at the beginning of the workday and after they clocked
out at the end of the day.
b. Class 2. Unpaid Wages Class -- Pre-shift and Post-Shift
off-the-clock Work: All non-exempt field technicians of
Schlumberger Lift Solutions LLC or Schlumberger Rod Lift, Inc. who
worked in California at any time from June 5, 2014 through the date
of class certification who were not compensated for off-the-clock
pre-shift and/or postshift work.
c. Class 3. Unpaid Wages Class -- Travel after Reporting: All
non-exempt field technicians of Schlumberger Lift Solutions LLC or
Schlumberger Rod Lift, Inc. who worked in California at any time
from June 5, 2014 through the date of class certification who were
required to report in person to the Bakersfield office and who were
not paid for the travel time between the Bakersfield office and the
field locations.
d. Class 4. Unpaid Wages Class -- iPads: All non-exempt field
technicians of Schlumberger Lift Solutions LLC or Schlumberger Rod
Lift, Inc. who worked in California at any time from June 5, 2014
through the date of class certification who were crew leads and who
were not compensated for pre-shift check-out and/or post-shift
check-in of iPads.
e. Class 5. Unpaid Wage Class -- Meal Period Time: All
non-exempt field technicians of Schlumberger Lift Solutions LLC or
Schlumberger Rod Lift, Inc. who worked in California at any time
from June 5, 2014 through the date of class certification who were
required to take their meal periods at their daily work site
locations and who were not paid for the time of their meal
periods.
f. Class 6. Meal Period Premium Class: All members of Class 3
who received meal periods that began after the end of the 5th hour
of work calculated from when the travel time began and who were not
paid a meal break premium for that workday.
g. Class 7. Unpaid Wages -- Training Class: All non-exempt
field technicians of Schlumberger Lift Solutions LLC or
Schlumberger Rod Lift, Inc. who worked in California at any time
from June 5, 2014 through the date of class certification who were
not compensated for the time that they were required to wait at the
Bakersfield base office after clocking out before the beginning of
the afternoon or evening training classes at the Bakersfield base
office.
h. Class 8. 203 Waiting Time Class: All class members of Class
Nos. 1 through 7 whose employment with Schlumberger Lift Solutions
LLC or Schlumberger Rod Lift, Inc. terminated within the period
beginning June 5, 2015 to the date of class certification who have
not settled their 203 claims.
i. Class 9. Wage Statement Class: All class members of Class
Nos. 1 through 7 who received a wage statement from Schlumberger
Lift Solutions LLC or Schlumberger Rod Lift, Inc. within the period
beginning June 5, 2017 to the date of class certification who have
not settled their wage statement claims.
In support of certification for these classes, the Plaintiff
submitted a declaration, as well as declarations from 11 field
technicians and a former human resources employee. He contends the
evidence demonstrates the prerequisites under Rule 23(a) of the
Federal Rules of Civil Procedure are satisfied for each class, and
the classes may be maintained under Rule 23(b)(3).
The Defendants oppose certification of each of the proposed
classes. According to them, certification should be denied because
the classes are not properly defined. In addition, they contend
the Plaintiff "lacks standing to even represent" three of the
classes, including the "Unpaid Wage Class -- Meal Period Time"
class, the "203 Waiting Time Class" and the "Wage Statements"
class. They also assert the Plaintiff has not shown that Rule 23
is satisfied as to any of his proposed classes. They maintain the
Plaintiff fails to establish the numerosity requirement is
satisfied for the classes, and common issues do not predominate for
the proposed classes.
A. Unpaid Work Class
Magistrate Judge Thurston finds that the Plaintiff fails to carry
the burden to demonstrate the Unpaid Work Class is sufficiently
numerous. Further, the conflicting anecdotal evidence fails to
demonstrate the Defendants had a policy of requiring the non-exempt
field technicians to perform off-the-clock work. Consequently, the
Plaintiff fails to show the Rule 23(a) factors are satisfied, and
the Court recommends certification of the Unpaid Work Class be
denied.
B. Unpaid Travel Class
The Magistrate Judge finds that the Plaintiff has met the burden to
demonstrate the requirements of Rule 23(a) are satisfied, and the
she recommends certification of the Unpaid Travel Class be granted.
She finds that (i) because the class is defined to include all
field technicians who used the transportation from Bakersfield to
Belridge and Taft, the numerosity requirement is satisfied; (ii)
whether the class members were entitled to compensation for travel
is an issue that may be resolved on a class-wide basis; (iii)
because the Plaintiff was subjected to the same unpaid travel
practices as putative class members, he has identified a "same or
similar injury" as putative class members; (iv) the Plaintiff has
demonstrated he would be an adequate representative for the
putative class members; and (v) Lonnie C. Blanchard, III and Peter
R. Dion-Kindem will provide adequate representation.
C. Meal Period Premium Class
The vague evidence by the Plaintiff and the putative class members
-- without any facts to support their belief -- is not sufficient
to establish a policy of delayed meal periods, Magistrate Judge
Thurston finds. She says the Plaintiff fails to present evidence
that any field worker had an untimely meal period due to travel
time. Because tge Plaintiff fails to satisfy the numerosity
requirement of Rule 23(a), the Court recommends certification of
the "Meal Period Premium" class be denied.
D. Unpaid Meal Period Class
The Magistrate Judge finds that the Plaintiff met the burden to
demonstrate the requirements of Rule 23(a) are satisfied, and the
Court recommends certification of the Unpaid Meal Period Class be
granted. She finds that (i) because the Plaintiff argues this
class is intended to address a company-wide policy, the numerosity
requirement is satisfied; (ii) the Plaintiff has presented evidence
that during the class period, there was a common practice under
which they were not permitted to leave locations for meal breaks,
which appears related to a policy not permitting the employees to
use company vehicles on their own time; (iii) because the Plaintiff
was subjected to the same meal break practice as the putative class
members, he carries the burden to identify the "same or similar
injury" as putative class members; and (iv) the Plaintiff has
satisfied the requirement of Rule 23(a) that the class be "fairly
and adequately" represented.
E. 203 Waiting Time and Wage Statement Classes
Based upon the information provided by counsel, Magistrate Judge
Thurston finds the numerosity requirement for the "203 Waiting
Time" Class is satisfied. Likewise, because the "Wage Statement
Class" encompasses class members from the "Unpaid Travel" and
"Unpaid Meal Period" class, the numerosity requirement is
satisfied. And because the Plaintiff is not a member of the "203
Waiting Time" and "Wage Statement" Classes, he is unable to show a
personal injury related to these classes. Consequently, he is
unable to satisfy the Rule 23(a) requirements related to these
classes.
Acknowledging the challenge to his qualification as a class
representative for these classes, the Plaintiff asserts in the
reply brief that he "should be allowed to substitute a new class
representative to assert the Section 203 and Section 226(a) wage
statement claims, which will moot the Defendants' adequacy
arguments. He asserts he "located a new class representative named
Brian Wallace who was terminated after June 25, 2020 the ending
date of the settlement in this action," and requests Mr. Wallace be
substituted.
Significantly, there is no right to substitute a proper class
representative, the Magistrate Judge holds. The Plaintiff executed
the settlement agreement releasing his claims on May 1, 2020. The
Class counsel make no effort to explain how the fact that the
Plaintiff released his claims and would not have standing as a
class representative for the proposed "203 Waiting Time" and "Wage
Statement" Classes escaped their notice. Similarly, the counsel do
not explain why they believe substitution of a class representative
would be appropriate at this juncture, when the case has been
pending for more than two years and the Defendants would suffer
obvious prejudice. Hence, the request to substitute a new class
representative to cure the identified standing deficiency is
denied.
F. Rule 23(b) Certification
The Magistrate Judge holds that because the anecdotal evidence
established demonstrated commonality regarding the Defendants'
policies, the proposed classes are "sufficiently cohesive to
warrant adjudication by representation." Therefore, the Plaintiff
met the burden to show common questions predominate over the class
claims. She also finds that (i) there is no evidence the putative
class members would have an interest in individually pursuing or
controlling their own cases; (ii) the parties have not identified
any other litigation regarding the claims presented, by or against
class members; (iii) because common issues predominate on the
Plaintiff's class claims, "presentation of the evidence in one
consolidated action will reduce unnecessarily duplicative
litigation and promote judicial economy; and (iv) because any
individualized issues for the Unpaid Travel Class and Unpaid Meal
Period Class relate only to damages, this does not weigh against
management of a class action.
Based upon the foregoing, Magistrate Judge Thurston recommends that
the Plaintiff's motion for class certification be granted in part
and denied in part as follows:
1. The request to certify the Unpaid Work Class be denied;
2. The request to certify the Unpaid Travel Class be granted
and defined as: All non-exempt field technicians of Schlumberger
Lift Solutions LLC or Schlumberger Rod Lift, Inc. who worked in
California at any time from June 5, 2014 through the date of class
certification who were not paid for the travel time between the
Bakersfield office and the Belridge and Taft field locations.
3. The request to certify the Meal Period Premium Class be
denied;
4. The request to certify the Unpaid Meal Periods Class be
granted and defined as: All non-exempt field technicians of
Schlumberger Lift Solutions LLC or Schlumberger Rod Lift, Inc. who
worked in California at any field location at any time from June 5,
2014 through the date of class certification who were not paid for
the time of their meal periods while at such location.
5. The request to certify the 203 Waiting Time Class be
denied;
6. The request to certify the Wage Statements Class be denied;
and
7. Within 14 days of any order from the District Court
addressing these recommendations, the Plaintiff be ordered to file
a proposed notice for the Court's approval.
Within 14 days after being served with these Findings and
Recommendations, any party may file written objections with the
Court. Such a document should be captioned "Objections to
Magistrate Judge's Findings and Recommendations." Any reply to the
objections will be filed and served within 14 days of the date of
service of the objections.
A full-text copy of the Court's April 6, 2021 Findings &
Recommendations is available at https://tinyurl.com/m23xj8kb from
Leagle.com.
SIGNIFY HEALTH: Settlement Reached in Gharavi Class Suit
--------------------------------------------------------
Signify Health, Inc. said in its Form 10-K report filed with the
U.S. Securities and Exchange Commission on March 25, 2021, for the
fiscal year ended December 31, 2020, that payment has been made in
the settled wage and hour class action suit initiated by Dr.
Mohammad A. Gharavi.
On March 12, 2019, a Complaint was filed against the company by Dr.
Mohammad A. Gharavi, in the Superior Court, State of California,
San Bernardino County.
The claim was a wage and hour class action of all California
contracted physicians from March 12, 2015 through the present and
ongoing.
The Complaint alleges that these physicians should have been
classified as employees.
The class action was settled for $1.2 at mediation in January 2020
and payment was made on December 1, 2020.
Signify Health, Inc. operates as a health care technology company.
The Company offers healthcare platform that leverages advanced
analytics, technology, and nationwide healthcare provider networks
to create and power value-based payment programs. Signify Health
serves customers worldwide. The company is based in Norwalk,
Connecticut.
SPARK NETWORKS: Cyber Security Related Suit Underway
----------------------------------------------------
Spark Networks SE said in its Form 10-K report filed with the U.S.
Securities and Exchange Commission on March 31, 2021, for the
fiscal year ended December 31, 2020, that the company and Zoosk,
Inc. continues to defend a putative class action suit related to
the 2020 security incident disclosed by Zoosk.
On July 22, 2020, a putative class action was filed against the
Company and Zoosk, Inc. in the U.S. District Court for the Northern
District of California by users alleging that a 2020 security
incident disclosed by Zoosk violates the California Consumer
Privacy Act (CCPA) and alleging other statutory and common law
claims, and seeking statutory damages and injunctive relief.
On December 14, 2020, plaintiffs voluntarily dismissed their
statutory damage claims under the CCPA.
On January 30, 2021, the district court granted in part, and denied
in part, Zoosk's motion to dismiss the complaint for failure to
state a claim and held in abeyance the Company's motion to dismiss
itself on jurisdictional grounds and for failure to state a claim.
The court granted plaintiffs limited jurisdictional discovery as to
the Company and has allowed a common law claim to go forward as to
Zoosk.
Separately, plaintiffs' counsel filed similar claims in arbitration
against Zoosk in the JAMS arbitration forum, which arbitrations
have not proceeded at this time.
Spark Networks SE operates online dating sites and mobile
applications. It focuses on catering professionals and
highly-educated singles with serious relationship intentions in
North America and other international markets. The company operates
its dating platforms under the EliteSingles, SilverSingles, JDate,
Christian Mingle, eDarling, JSwipe, and Attractive World brands.
The company is headquartered in Berlin, Germany.
SPLUNK INC: Lead Plaintiff and Counsel Appointed in Class Suit
--------------------------------------------------------------
Splunk Inc. said in its Form 10-K report filed with the U.S.
Securities and Exchange Commission on March 31, 2021, for the
fiscal year ended January 31, 2021, that the Court appointed lead
plaintiff and lead counsel in the putative class action suit filed
in the U.S. District Court for the Northern District of
California.
In December 2020, a putative class action lawsuit was filed in the
U.S. District Court for the Northern District of California against
the company, its CEO and its CFO alleging violations of the
Securities Exchange Act of 1934, as amended, for allegedly making
materially false and misleading statements regarding our financial
guidance.
On March 16, 2021, the Court appointed lead plaintiff and lead
counsel in the case.
In February and March 2021, two derivative lawsuits related to the
securities class action were filed.
Splunk said, "These lawsuits could subject us to substantial costs,
divert resources and the attention of management from our business
and adversely affect our business, results of operations, financial
condition and cash flows."
Splunk Inc. provides innovative cloud and software offerings that
deliver and operationalize insights from data generated by digital
systems. This data is growing significantly as a direct result of
the prevalence and importance of digital systems used by today’s
organizations. The company is based in San Francisco, California.
SPRUCE 1209: New York Court Denies Bid to Dismiss Chernett Suit
---------------------------------------------------------------
Judge Arlene P. Bluth of the New York Supreme Court, New York
County, denies the consolidated motion to dismiss the lawsuit
titled ELIZABETH CHERNETT, MICHAEL RAPIN, on behalf of themselves
and all others similarly situated, Plaintiffs v. SPRUCE 1209, LLC,
Defendant, Case No. 159188/2020 (N.Y. Sup.).
These e-filed documents, listed by NYSCEF document number (Motion
001) 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21,
22, 23, 24, 29, 31, 33, 35, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46,
47, 48, 50, 52 were read on this motion to/for dismissal. These
e-filed documents, listed by NYSCEF document number (Motion 002)
25, 26, 27, 30, 32, 34, 36, 49, 51 were read on this motion to/for
dismissal.
Background
The putative class action involves the state tax abatement program
available for new housing developments commonly known as the 421-a
Program. "Section 421-a of the Real Property Tax Law provides for
an exemption from local taxation for certain new multiple
dwellings. It explicitly provides authority for a local housing
agency in a city with a population of one million or more to
exclude certain new multiple dwellings through the passage of a
local law" (Kew Gardens Dev. Corp. v Wambua, 103 A.D.3d 576, 577,
961 N.Y.S.2d 48 [1st Dept 2013]).
The purpose of the law is clear: to incentivize
developers/landlords to build more housing by providing property
tax exemptions. A building receives those exemptions as long as it
remains in the 421-a Program. Although there are different options
a developer may choose, the general idea is that property taxes get
phased in over a certain period of time. In exchange for this tax
exemption, the apartments are classified as rent stabilized, which
means that the rent increases are set by the Rent Guidelines Board
("RGB").
The issue in the case is the initial rent set by the landlord once
these new developments are ready for occupancy. Pursuant to the
Rent Stabilization Code "The initial legal regulated rent for a
housing accommodation constructed pursuant to section 421-a of the
Real Property Tax Law will be the initial adjusted monthly rent
charged and paid but not higher than the rent approved by HPD
pursuant to such section for the housing accommodation or the
lawful rent charged and paid on April 1, 1984, whichever is later"
(Rent Stabilization Code Section 2521.1[g]). Obviously, since these
are new buildings built well after April 1, 1984, the key issue is
the "initial adjusted monthly rent charged and paid."
The Defendant observes that the Department of Housing Preservation
and Development ("HPD") sets a rent schedule for the initial rents,
referred to as a "Schedule of Maximum Rents." The Defendant
maintains that these HPD-approved rents usually exceed the market
rates that owners could actually charge new tenants.
The Plaintiffs (renters) contend that the Defendant (the owner of a
building in Bushwick) registered an illusory initial rent for the
apartments in the building by utilizing concessions. Typically, a
lease would include a concession for a free month. The Plaintiffs
complain that the Defendant did not register the prorated rent
actually paid by the tenant and instead registered the higher rent.
This allowed the Defendant to raise the rent from a higher amount.
The Plaintiffs allege that when these apartments are advertised,
the adjusted prorated rent is advertised instead of the monthly
rent and the concession. The Plaintiffs provide a hypothetical
example of an apartment with a monthly rent of $3,000 but marketed
with a month free. The Plaintiffs point out that this apartment
would be advertised with the $2,750 monthly rent as the "net
effective rent."
The Defendant and proposed amici offer a different view of the
applicable law. The Defendant claims that the concessions were only
temporary limited rent concessions expressed in clear riders to the
rents signed by the initial tenants. It maintains that the term
"net effective rent" is not a defined concept in the law. Defendant
argues that the concessions were provided based on construction
issues as it was a new building. It emphasizes that the concession
riders made clear the concession was temporary and was not a
preferential rent.
The Defendant insists that the case should be dismissed because the
Plaintiffs have no claim for rent overcharge. It points to HCR Fact
Sheet #40, which provides a definition for a preferential rent and
specifically discusses rent concessions. The Defendant concludes
that the free month given during the initial lease term yields the
conclusion that this was rent concession rather than a preferential
rent. It points out that the case can also be dismissed based on
the statute of limitations. The Defendant observes that the
plaintiffs here were not the first renters and the initial leases
for their apartment were signed more than four years ago.
The proposed amici also make a motion to dismiss and make similar
arguments to the Defendant. They focus on the fact that the initial
leases made clear that the concession was a one-time occurrence and
no reasonable person reading the concession rider could think it
was a preferential rent. Proposed amici emphasize that the
Plaintiffs' view of the 421-a Program is misplaced. They insist
that the construction of new housing reduces rents in a
neighborhood and the entire program is based on these new
apartments actually being occupied. Proposed amici observe that
developers have construction financing to pay off, mortgage
payments and payrolls to meet so quickly renting as many units as
possible is key. They acknowledge that "developers often use
temporary rent waivers to quickly rent up apartments, as many
habitable apartments nevertheless have a host of punchlist items
that have to be addressed" Proposed amici claim that developers do
not want to wait until construction is completed or deal with
requests for rent abatements from the initial tenants.
In opposition to the Defendant's motion, the Plaintiffs note that
the entire purpose of the 421-a Program was to help a developer
struggling to fill a new building by exempting them from paying
property taxes for a set term. The Plaintiffs insist that the
intent of the program was never to allow a developer to avoid
paying property taxes and concoct a scheme to charge higher rents
than what the tenants were actually paying. They also point out
that for this particular building, the certificate of occupancy was
issued on October 23, 2013, and the Defendant was still providing
"construction concession riders" in January 2015. The Plaintiffs
insist that the "Job Overview" listing on DOB's website listed no
jobs after August 2013.
The Plaintiffs also note that using preferential rents are no
longer permitted for setting a legal rent under the Housing
Stability and Tenant Protection Act (HSTPA) (the recently passed
housing law in 2019) but that calling something a concession would
permit a landlord to evade this requirement. They observe that
discovery is needed to explore the various leases and how
concessions were used. The Plaintiffs contend that the use of
concessions continues and is a system utilized to evade the HSTPA.
The Plaintiffs also complain that the Defendant came up with the
term "net effective rent" and used this to market these units. They
claim that the statute of limitations is not a bar to this case
because this is a fraudulent scheme. Moreover, the Plaintiffs
maintain that tenants cannot waive their rent stabilization
rights.
In reply, the Defendant insists that the Court should adhere to the
guidance from HCR and the Plaintiffs provided no reason why the
Court should ignore Fact Sheet #40. It maintains that the tenants
have not waived any rent regulation rights and, in fact, have
received a benefit from the reduced rent.
Summary
According to the Court's Decision + Order, the relevant provision
of the Rent Stabilization Code is unambiguous: a developer
participating in the 421-a Program must register "the initial
adjusted monthly rent charged and paid." But the application of the
provision to this case is unclear. Is the initial rent charged and
paid the prorated amount (the "net effective rent") or is it the
amount defendant cites in the lease? The Court is unable to make
such a determination at this point of the litigation. There is no
question that courts have recognized the concept of a concession in
connection with a rent stabilized unit, particularly concessions
due to construction. Whether the concessions provided here are
actually concessions requires an exploration of the facts
surrounding this building's leases. And it is unclear how
concessions might apply to the 421-a Program.
The extent to which the Defendant and proposed amici point to
riders in which tenants purportedly agreed that the free month was
not a preferential rent is of no moment. The Defendant's claim that
because the tenant received a benefit, the Court cannot conclude
that rent stabilization rights were waived is belied by the
uncertainty with which these concessions were provided. Under the
Plaintiffs' theory, it seems that the concessions were merely a
recognition that the free market could not procure a tenant willing
to pay the amount sought by defendant. In that scenario, the tenant
did not receive a benefit. He or she merely signed a lease for a
certain amount that the landlord chose to characterize as a
12-month lease with one month free instead of a 12-month lease at a
lower rate. The effect on the tenant's bank account is negligible.
The Court also recognizes that the Defendant and proposed amici
point to public policy concerns as a reason to dismiss this case.
The Court disagrees. The Defendant and other developers chose to
participate in the 421-a program. The incentive to participate in
the program is obvious: the Defendant receives tax exemptions to
offset the high cost of construction and, in return, the apartments
must be rent stabilized while the Defendant is in the program. And,
according to the Defendant, the cap on the rents that can be
charged initially are usually higher than what the market could
bear. So, in practice, a landlord can charge free market rents as
the initial rent.
The issues with filling a new building with renters, as pointed out
by the proposed amici, are not unique to 421-a buildings. They are
common to every new development. It can be difficult to fill the
buildings, pay off construction loans and make mortgage payments.
But that is why the program includes tax exemptions; the taxpayers
of this state are helping to subsidize the construction of the
building while the developer constructs the building and markets
the units. That the landlord may have to lower the first rent
charged to the initial tenants is simply the free market at work.
It is not a public policy reason to dismiss this case. A landlord
need not participate in the program if it does not like the terms.
If the Defendant could have found a renter for its desired asking
price, then it presumably would not have included concessions. Its
claim that tenants would have demanded rent abatements absent the
concessions is too speculative, on a motion to dismiss, to justify
dismissal on this point, Judge Bluth finds.
While it is reasonable to theorize (as the Defendant does) that a
tenant living in a building under construction might demand an
abatement, the fact is that a landlord can decide whether it wants
to rent out the units before the building is completely finished,
Judge Bluth holds. In this type of situation, the landlord will
presumably make a calculated decision as to what makes the most
financial sense.
Accordingly, it is ordered that the motions by the Defendant
(MS001) and proposed amici (MS002) to dismiss are denied and the
Defendant is directed to answer pursuant to the New York
Consolidated Laws, Civil Practice Law and Rules.
Remote Conference is set for June 22, 2021.
A full-text copy of the Court's Decision + Order dated April 5,
2021, is available at https://tinyurl.com/64a73abn from
Leagle.com.
STANDARD AVB: Agreement to Pay Pochinsky Counsel Reached
--------------------------------------------------------
Standard AVB Financial Corp. said in its Form 10-K report filed
with the U.S. Securities and Exchange Commission on March 31, 2021,
for the fiscal year ended December 31, 2020, that the company
reached an agreement with Plaintiff's counsel in Philip A.
Pochinsky vs. Standard AVB Financial Corp., et al., Docket No.
1:20-cv-10176, to pay Plaintiff's attorneys' fees.
On August 29, 2016, Standard Financial Corp. and Allegheny Valley
Bancorp, Inc. entered into an Agreement and Plan of Merger, which
contemplated that Allegheny Valley would merge with and into
Standard Financial Corp., with Standard Financial Corp. as the
surviving entity to be known as "Standard AVB Financial Corp." On
April 7, 2017, Allegheny Valley merged with and into Standard
Financial Corp. and the Company was renamed as "Standard AVB
Financial Corp."
On December 3, 2020, a purported shareholder of the Company filed a
putative class action lawsuit against Standard and its directors in
the United States District Court for the Southern District of New
York, captioned Philip A. Pochinsky vs. Standard AVB Financial
Corp., et al., Docket No. 1:20-cv-10176.
The plaintiff generally alleged that the defendants breached their
fiduciary duties and violated Sections 14(a) and 20(a) of the
Exchange Act and Rule 14a-9 promulgated thereunder by disclosing
materially incomplete and misleading information about the merger
to Standard stockholders.
The plaintiff sought injunctive relief, unspecified damages and an
award of attorneys' fees and expenses.
On January 12, 2021 Standard filed a Form 8-K with the SEC, which
supplemented the disclosures in the Proxy to include the omitted
information identified in the complaint.
The Plaintiff filed a notice of voluntary dismissal on January 28,
2021. On February 18, 2021, Standard reached an agreement with
Plaintiff's counsel to pay Plaintiff's attorneys' fees for having
brought about an alleged benefit for Standard's stockholders in the
form of supplement disclosures to the Proxy.
Standard AVB Financial Corp., is a Maryland corporation that owns
all of the outstanding shares of common stock of Standard Bank
PaSB, a Pennsylvania chartered savings bank (the Bank). The company
is based in Monroeville, Pennsylvania.
STERLING BANCORP: Agreement in Principle Reached in Securities Suit
-------------------------------------------------------------------
Sterling Bancorp, Inc. said in its Form 10-K report filed with the
U.S. Securities and Exchange Commission on March 26, 2021, for the
fiscal year ended December 31, 2020, that the plaintiff, the
Company and each of the other defendants reached an agreement in
principle to settle the securities class action lawsuit captioned
Oklahoma Police Pension and Retirement System v. Sterling Bancorp,
Inc., et al., Case No. 5:20-cv-10490-JEL-EAS.
The Company, certain of its current and former officers and
directors and other parties were named as defendants in a
shareholder class action captioned Oklahoma Police Pension and
Retirement System v. Sterling Bancorp, Inc., et al., Case No.
5:20-cv-10490-JEL-EAS, filed on February 26, 2020 in the U.S.
District Court for the Eastern District of Michigan.
The plaintiff filed an amended complaint on July 2, 2020, seeking
damages and reimbursement of fees and expenses.
This action alleges violations of the federal securities laws,
primarily with respect to disclosures concerning the Bank's
residential lending practices that were made in the Company's
registration statement and prospectus for its initial public
offering, in subsequent press releases, in periodic and other
filings with the SEC and during earnings calls.
On September 22, 2020, the Company filed with the court a motion to
dismiss the amended complaint, and each of the Company and the
plaintiff has submitted briefs in support of their respective
positions regarding that motion.
In February 2021, the plaintiff, the Company and each of the other
defendants reached an agreement in principle to settle the
securities class action lawsuit.
The agreement in principle provides for a single cash payment in
exchange for the release of all of the defendants from all alleged
claims therein and remains subject to final documentation, court
approval and other conditions.
The full amount of the settlement, if finalized, will be paid by
the Company's insurance carriers under applicable insurance
policies.
Sterling Bancorp, Inc. is a unitary thrift holding company. Its
wholly-owned subsidiary, Sterling Bank and Trust, FSB, has primary
branch operations in San Francisco and Los Angeles, California, New
York City and Bellevue, Washington. Sterling offers a range of loan
products to the residential and commercial markets, as well as
retail and business banking services. Sterling also has an
operations center and a branch in Southfield, Michigan.
STEVE PIPER: Fails to Pay Laborers' Overtime Pay, Galindo Claims
----------------------------------------------------------------
ANDRES GALINDO, individually and on behalf of all others similarly
situated, Plaintiff v. STEVE PIPER & SONS, INC., Defendant, Case
No. 1:21-cv-01822 (N.D. Ill., April 6, 2021) is an action against
the Defendant's failure to pay the Plaintiff and the class overtime
compensation for hours worked in excess of 40 hours per week.
Plaintiff Galindo was employed by the Defendant as laborer.
STEVE PIPER & SONS, INC. is in the business of tree works for
residential and commercial customers. [BN]
The Plaintiff is represented by:
John C. Ireland, Esq.
THE LAW OFFICE OF JOHN C. IRELAND
636 Spruce Street
South Elgin, Ill 60177
Telephone: (630) 464-9675
Facsimile: (630) 206-0889
E-mail: attorneyireland@gmail.com
STONEMOR INC: Bid to Dismiss Fried Putative Class Suit Pending
--------------------------------------------------------------
Stonemor Inc. said in its Form 10-K report filed with the U.S.
Securities and Exchange Commission on March 25, 2021, for the
fiscal year ended December 31, 2020, that the motion to dismiss the
putative class action suit entitled, Fried v. Axelrod, et al., C.A.
No. 2020-1065-SG, is pending.
Fried v. Axelrod, et al., C.A. No. 2020-1065-SG, pending in the
Chancery Court of the State of Delaware and filed on December 16,
2020.
The plaintiff, in this case, brought an action he seeks to have
certified as a class action that asserts claims against Axar,
Andrew M. Axelrod and the other individuals who were directors at
the time of the transactions in question and against the Company as
a nominal defendant.
The complaint includes direct claims against all individual
defendants and derivative claims against the individual defendants
other than Mr. Axelrod for breach of fiduciary duty in approving
certain transactions in connection with the Company's sale of
preferred and common stock to Axar and certain accounts managed by
Axar.
The complaint also includes derivative claims against Axar for
breach of fiduciary duty and unjust enrichment in connection with
those same transactions as well as direct claims against both Axar
and Mr. Axelrod for breach of fiduciary duty with respect to those
transactions.
Finally, the complaint includes a derivative claim against all
individual defendants for breach of fiduciary duty in connection
with the approval of a related-party investment disclosed by the
Company.
The plaintiff seeks rescission of the transactions contemplated by
the Axar Stock Purchase and the related-party investment and/or an
award of damages as well as attorneys' fees and costs.
On January 6, 2021, a motion to dismiss the complaint was filed on
behalf of the Company and the individual defendants other than Mr.
Axelrod and on January 11, 2021, a motion to dismiss the complaint
was filed on behalf of Axar and Mr. Axelrod.
Stonemor Inc. provides consumer services. The Company offers
cemeteries and funeral homes. Stonemor serves customers inn the
United States. The company is based in Bensalem, Pennsylvania.
TENARIS SA: Court Narrows Claims in Putative Class Suit
-------------------------------------------------------
Tenaris S.A. said in its Form 20-F report filed with the U.S.
Securities and Exchange Commission on March 30, 2021, for the
fiscal year ended December 31, 2020, that the motion to dismiss the
consolidated putative class action suit entitled, In re Tenaris
S.A. Securities Litigation, has been granted in part.
Following the Company's November 27, 2018 announcement that its
Chairman and CEO Paolo Rocca had been included in an Argentine
court investigation known as the Notebooks Case (a decision
subsequently reversed by a higher court), two putative class action
complaints were filed in the U.S. District Court for the Eastern
District of New York.
On April 29, 2019, the court consolidated the complaints into a
single case, captioned "In re Tenaris S.A. Securities Litigation",
and appointed lead plaintiffs and lead counsel. On July 19, 2019,
the lead plaintiffs filed an amended complaint purportedly on
behalf of purchasers of Tenaris securities during the putative
class period of May 1, 2014 through December 5, 2018.
The individual defendants named in the complaint are Tenaris's
Chairman and CEO and Tenaris's former CFO. The complaint alleges
that during the class period, the Company and the individual
defendants inflated the Tenaris share price by failing to disclose
that the nationalization proceeds received by Ternium (in which the
Company held an 11.46% stake) when Sidor was expropriated by
Venezuela were received or expedited as a result of allegedly
improper payments made to Argentine officials.
The complaint does not specify the damages that plaintiff is
seeking.
On October 9, 2020, the court granted in part and denied in part
the defendants' motions to dismiss.
The court partially granted and partially denied the motion to
dismiss the claims against the Company and its Chairman and CEO.
In addition, the court granted the motions to dismiss as to all
claims against San Faustin, Techint, and Tenaris's former CFO. The
case will now proceed based on the claims that survived the motion
to dismiss.
Tenaris said, "Management believes the Company has meritorious
defenses to these claims; however, at this stage Tenaris cannot
predict the outcome of the claim or the amount or range of loss in
case of an unfavorable outcome."
Tenaris S.A., through its subsidiaries, produces and sells seamless
and welded steel tubular products; and provides related services
for the oil and gas industry, and other industrial applications.
The company operates in North America, South America, Europe, the
Middle East and Africa, and the Asia Pacific. Tenaris S.A. was
founded in 2001 and is headquartered in Luxembourg City,
Luxembourg. Tenaris S.A. is a subsidiary of Techint Holdings S.a
r.l.
TERNIUM SA: New York Putative Class Suit Closed
-----------------------------------------------
Ternium S.A. said in its Form 20-F report filed with the U.S.
Securities and Exchange Commission on March 31, 2021, for the
fiscal year ended December 31, 2020, that the putative class action
suit filed in the Eastern District of New York, is now closed.
Following the Company's November 27, 2018 announcement that its
chairman Paolo Rocca had been included in an Argentine court
investigation known as the Notebooks Case (a decision subsequently
reversed by a higher court), a putative class action complaint was
filed in the U.S. District Court for the Eastern District of New
York.
On June 17, 2019, the lead plaintiff filed an amended complaint
purportedly on behalf of purchasers of Ternium securities from May
1, 2014 through November 27, 2018. The individual defendants named
in the amended complaint are the company's chairman, its former
CEO, its current CEO and its CFO.
That complaint alleged that during the class period, the Company
and the individual defendants inflated the price of Ternium's
American Depositary Shares (ADSs) by failing to disclose that the
nationalization proceeds received by Ternium when Sidor was
expropriated by Venezuela were received or expedited as a result of
alleged improper payments made to Argentine officials.
On September 14, 2020, the court granted a motion to dismiss the
claims against all defendants, with leave for plaintiff to file a
second amended complaint.
Because plaintiffs did not file a second amended complaint, on
November 17, 2020, the case was dismissed with prejudice.
The case is now closed.
Ternium S.A., through its subsidiaries, manufactures and processes
various steel products in Mexico, Argentina, Paraguay, Chile,
Bolivia, Uruguay, Brazil, the United States, Colombia, Guatemala,
Costa Rica, Honduras, El Salvador, and Nicaragua. It operates in
two segments, Steel and Mining. Ternium S.A. was founded in 1961
and is based in Luxembourg City, Luxembourg. Ternium S.A. is a
subsidiary of Techint Holdings S.a r.l.
TERRA TECH: Stanley Putative Nationwide Class Suit Underway
-----------------------------------------------------------
Terra Tech Corp. said in its Form 10-K report filed with the U.S.
Securities and Exchange Commission on March 30, 2021, for the
fiscal year ended December 31, 2020, that the company continues to
defend a putative, nationwide class action suit entitled, Stanley,
et al. v Terra Tech Corp., et al., Civil Action No. 8:21-cv00022.
On January 6, 2021, a putative, nationwide class action for
violations of the Telephone Consumer Protection Act ("TCPA"),
captioned as Stanley, et al. v Terra Tech Corp., et al., Civil
Action No. 8:21-cv00022, was filed against Terra Tech and MediFarm
LLC in the United States District Court for the Central District of
California.
In the TCPA Action, Plaintiffs allege that Defendants violated the
TCPA by sending text messages to them and other persons without
consent.
Plaintiffs seek, on behalf of themselves and other purportedly
similarly situated-persons, an unspecified amount of actual and
statutory damages for each alleged violation, declaratory and
injunctive relief, and attorneys' fees and costs.
Terra Tech Corp. operates as a vertically integrated
cannabis-focused agriculture company. The Company was founded in
2010 and is headquartered in Irvine, California.
UNIT CORP: Deal Reached to Settle Chieftain Royalty Class Suit
--------------------------------------------------------------
Unit Corporation said in its Form 10-K report filed with the U.S.
Securities and Exchange Commission on March 31, 2021, for the
fiscal year ended December 31, 2020, that an agreement to settle
the class action suit entitled, Chieftain Royalty Company vs. Unit
Petroleum Company, has been reached.
On November 3, 2016, a putative class action lawsuit was filed
against Unit Petroleum Company styled Chieftain Royalty Company v.
Unit Petroleum Company in LeFlore County, Oklahoma.
Plaintiff alleges that UPC breached its duty to pay royalties on
natural gas used for fuel off the lease premises.
The lawsuit seeks actual and punitive damages, an accounting,
injunctive relief, and attorney's fees.
Plaintiff is seeking relief on behalf of Oklahoma citizens who are
or were royalty owners in the company's Oklahoma wells.
In August 2020, UPC reached an agreement to settle these class
actions. Under the settlement, UPC agreed to recognize class proofs
of claims in the amount of $15.75 million for Cockerell Oil
Properties, Ltd. vs. Unit Petroleum Company, and $29.25 million in
Chieftain Royalty Company vs. Unit Petroleum Company.
This settlement is subject to certain conditions, including
approval by the United States Bankruptcy Court for the Southern
District of Texas, Houston Division in Case No. 20-32740 under the
caption In re Unit Corporation, et al.
Under the Plan, these settlement amounts will be treated as allowed
general unsecured claims against UPC.
The settlement amounts will be satisfied by distribution of the
plaintiffs' proportionate share of New Common Stock in accordance
with the Plan.
Unit Corporation, together with its subsidiaries, engages in the
exploration, acquisition, development, and production of oil and
natural gas properties in the United States. It operates through
three segments: Oil and Natural Gas, Contract Drilling, and
Mid-Stream. Unit Corp was founded in 1963 and is headquartered in
Tulsa, Oklahoma.
UNIT CORP: Settlement Deal Between Subsidiary & Cockerell Reached
-----------------------------------------------------------------
Unit Corporation said in its Form 10-K report filed with the U.S.
Securities and Exchange Commission on March 31, 2021, for the
fiscal year ended December 31, 2020, that an agreement to settle
the class action suit entitled, Cockerell Oil Properties, Ltd., v.
Unit Petroleum Company, has been reached.
On March 11, 2016, a putative class action lawsuit was filed
against nit Petroleum Compan (UPC) styled Cockerell Oil Properties,
Ltd., v. Unit Petroleum Company in LeFlore County, Oklahoma.
The company removed the case to federal court in the Eastern
District of Oklahoma. The plaintiff alleges that UPC wrongfully
failed to pay interest with respect to late paid oil and gas
proceeds under Oklahoma's Production Revenue Standards Act.
The lawsuit seeks actual and punitive damages, an accounting,
disgorgement, injunctive relief, and attorney fees.
Plaintiff is seeking relief on behalf of royalty and working
interest owners in the company's Oklahoma wells.
In August 2020, UPC reached an agreement to settle the class
action. Under the settlement, UPC agreed to recognize class proofs
of claims in the amount of $15.75 million for Cockerell Oil
Properties, Ltd. vs. Unit Petroleum Company, and $29.25 million in
Chieftain Royalty Company vs. Unit Petroleum Company.
This settlement is subject to certain conditions, including
approval by the United States Bankruptcy Court for the Southern
District of Texas, Houston Division in Case No. 20-32740 under the
caption In re Unit Corporation, et al. Under the Plan, these
settlement amounts will be treated as allowed general unsecured
claims against UPC.
The settlement amounts will be satisfied by distribution of the
plaintiffs' proportionate share of New Common Stock in accordance
with the Plan.
Unit Corporation, together with its subsidiaries, engages in the
exploration, acquisition, development, and production of oil and
natural gas properties in the United States. It operates through
three segments: Oil and Natural Gas, Contract Drilling, and
Mid-Stream. Unit Corp was founded in 1963 and is headquartered in
Tulsa, Oklahoma.
VENUS CONCEPT: IPO-Related Litigation Underway
----------------------------------------------
Venus Concept Inc. said in its Form 10-K report filed with the U.S.
Securities and Exchange Commission on March 29, 2021, for the
fiscal year ended December 31, 2020, that the company continues to
defend class actions related to its Initial Public Offering (IPO).
Between May 23, 2018 and June 11, 2019, four putative shareholder
class actions complaints were filed against the company, certain of
its former officers and directors, certain of its venture capital
investors, and the underwriters of its IPO.
Two of these complaints, Wong v. Restoration Robotics, Inc., et
al., No. 18CIV02609, and Li v. Restoration Robotics, Inc., et al.,
No. 19CIV08173, were filed in the Superior Court of the State of
California, County of San Mateo, and assert claims under Sections
11, 12(a)(2) and 15 of the Securities Act of 1933, or the
Securities Act.
The other two complaints, Guerrini v. Restoration Robotics, Inc.,
et al., No. 5:18-cv-03712-EJD and Yzeiraj v. Restoration Robotics,
Inc., et al., No. 5:18-cv-03883-BLF, were filed in the United
States District Court for the Northern District of California and
assert claims under Sections 11 and 15 of the Securities Act.
The complaints all allege, among other things, that the company's
Registration Statement filed with the SEC on September 1, 2017 and
the Prospectus filed with the SEC on October 13, 2017 in connection
with its IPO were inaccurate and misleading, contained untrue
statements of material facts, omitted to state other facts
necessary to make the statements made not misleading and omitted to
state material facts required to be stated therein.
The complaints seek unspecified monetary damages, other equitable
relief and attorneys' fees and costs.
In addition to the State and Federal Actions, on July 11, 2019, a
verified shareholder derivative complaint was filed in the United
States District Court for the Northern District of California,
captioned Mason v. Rhodes, No. 5:19-cv-03997-NC.
The complaint alleges that certain of our former officers and
directors breached their fiduciary duties, have been unjustly
enriched and violated Section 14(a) of the Securities Exchange Act
of 1934, or the Exchange Act, in connection with our IPO and our
2018 proxy statement.
The complaint seeks unspecified damages, declaratory relief, other
equitable relief and attorneys' fees and costs.
On August 21, 2019, the District Court granted the parties joint
stipulation to stay the Mason action during the pendency of the
Federal Actions.
On December 15, 2020, the District Court granted the parties'
further stipulation to stay the Mason action during the pendency of
the Federal Action, and the case remains stayed.
Venus Concept said, "While we believe these claims to be without
merit, we cannot assure you that additional claims alleging the
same or similar facts will not be filed."
Venus Concept Inc. (formerly Restoration Robotics, Inc.) is a
global medical technology company that develops, commercializes,
and sells minimally invasive and non-invasive medical aesthetic and
hair restoration technologies and related services. The Company's
systems have been designed on a cost-effective, proprietary and
flexible platform that enables it to expand beyond the aesthetic
industry's traditional markets of dermatology and plastic surgery,
and into non-traditional markets, including family and general
practitioners and aesthetic medical spas. The company was founded
in 2002 and is headquartered in Toronto, Ontario.
VERINT SYSTEMS: Bid for Leave to Appeal in Suit vs. Unit Pending
----------------------------------------------------------------
Verint Systems Inc. said in its Form 10-K report filed with the
U.S. Securities and Exchange Commission on March 31, 2021, for the
fiscal year ended January 31, 2021, that the motion for leave to
appeal in the Tel Aviv suit against the company's subsidiary,
Verint Systems Limited, is pending.
In March 2009, one of the company's former employees, Ms. Orit
Deutsch, commenced legal actions in Israel against the company's
former Israeli subsidiary, Cognyte Technologies Israel Ltd.
(formerly known as Verint Systems Limited or "VSL") (Case Number
4186/09) and against our former affiliate CTI (Case Number
1335/09).
Also in March 2009, a former employee of Comverse Limited (CTI's
primary Israeli subsidiary at the time), Ms. Roni Katriel,
commenced similar legal actions in Israel against Comverse Limited
(Case Number 3444/09).
In these actions, the plaintiffs generally sought to certify class
action suits against the defendants on behalf of current and former
employees of VSL and Comverse Limited who had been granted stock
options in Verint and/or CTI and who were allegedly damaged as a
result of a suspension on option exercises during an extended
filing delay period that is discussed in the company's and CTI's
historical public filings.
On June 7, 2012, the Tel Aviv District Court, where the cases had
been filed or transferred, allowed the plaintiffs to consolidate
and amend their complaints against the three defendants: VSL, CTI,
and Comverse Limited.
On October 31, 2012, CTI distributed of all of the outstanding
shares of common stock of Comverse, Inc., its principal operating
subsidiary and parent company of Comverse Limited, to CTI's
shareholders.
In the period leading up to the Comverse Share Distribution, CTI
either sold or transferred substantially all of its business
operations and assets (other than its equity ownership interests in
Verint and in its then-subsidiary, Comverse, Inc.) to Comverse,
Inc. or to unaffiliated third parties. As the result of these
transactions, Comverse, Inc. became an independent company and
ceased to be affiliated with CTI, and CTI ceased to have any
material assets other than its equity interests in Verint.
Prior to the completion of the Comverse Share Distribution, the
plaintiffs sought to compel CTI to set aside up to $150.0 million
in assets to secure any future judgment, but the District Court did
not rule on this motion. In February 2017, Mavenir Inc. became
successor-in-interest to Comverse, Inc.
On February 4, 2013, Verint acquired the remaining CTI shell
company in a merger transaction (the "CTI Merger"). As a result of
the CTI Merger, Verint assumed certain rights and liabilities of
CTI, including any liability of CTI arising out of the foregoing
legal actions.
However, under the terms of a Distribution Agreement entered into
in connection with the Comverse Share Distribution, the company, as
successor to CTI, are entitled to indemnification from Comverse,
Inc. (now Mavenir) for any losses we may suffer in our capacity as
successor to CTI related to the foregoing legal actions.
Following an unsuccessful mediation process, on August 28, 2016,
the District Court (i) denied the plaintiffs' motion to certify the
suit as a class action with respect to all claims relating to
Verint stock options, (ii) dismissed the motion to certify the suit
against VSL and Comverse Limited, and (iii) approved the
plaintiffs' motion to certify the suit as a class action against
CTI with respect to claims of current or former employees of
Comverse Limited (now part of Mavenir) or of VSL who held
unexercised CTI stock options at the time CTI suspended option
exercises. The court also ruled that the merits of the case would
be evaluated under New York law.
As a result of this ruling (which excluded claims related to Verint
stock options from the case), one of the original plaintiffs in the
case, Ms. Deutsch, was replaced by a new representative plaintiff,
Mr. David Vaaknin.
CTI appealed portions of the District Court's ruling to the Israeli
Supreme Court. On August 8, 2017, the Israeli Supreme Court
partially allowed CTI's appeal and ordered the case to be returned
to the District Court to determine whether a cause of action exists
under New York law based on the parties' expert opinions.
Following two unsuccessful rounds of mediation in mid to late 2018
and in mid-2019, the proceedings resumed. On April 16, 2020, the
District Court accepted plaintiffs' application to amend the motion
to certify a class action and set deadlines for filing amended
pleadings by the parties.
CTI submitted a motion to appeal the District Court's decision to
the Israeli Supreme Court, as well as a motion to stay the
proceedings in the District Court pending the resolution of the
appeal.
On July 6, 2020, the Israeli Supreme Court granted the motion for a
stay. On July 27, 2020, the plaintiffs filed their response on the
merits of the motion for leave to appeal, and the parties are
waiting for further instructions or decisions from the Israeli
Supreme Court.
Verint Systems Inc. provides actionable intelligence solutions
worldwide. Verint Systems Inc. was founded in 1994 and is
headquartered in Melville, New York.
WALGREEN CO: E.D. California Stays Caves Class Suit for 90 Days
---------------------------------------------------------------
In the case, GLORIA CAVES and TAMIM KABIR, On Behalf of Themselves
and All Others Similarly Situated, Plaintiffs v. WALGREEN CO.,
Defendant, Case No. 2:18-cv-02910-MCE-DB (E.D. Cal.), Judge
Morrison C. England, Jr., of the U.S. District Court for the
Eastern District of California, Sacramento Division, stays the
action for 90 days.
On Nov. 2, 2018, the Plaintiffs filed their complaint before the
Court. On June 22, 2020, they filed their Motion for Preliminary
Approval outlining the terms of a proposed settlement with the
Defendant. Under the terms of the proposed settlement, a fund of
$6 million would be created and be paid out to "over 900 class
members."
On Aug. 13, 2020, the Court issued its Order Preliminarily
Approving Settlement Agreement.
On Oct. 26, 2020, Objector Barbarito Ruan Vasquez filed his
Objections to Proposed Settlement with the Court. The Objector's
counsel currently represents Plaintiff Alfred Morales in a
substantially similar putative class action against Defendant
Walgreen Co. that was filed on Oct. 16, 2018 in San Francisco
Superior Court (Case No. CGC-18-570597). Morales was filed two
weeks before the action. Morales is currently stayed in favor of
the action.
The Objector's counsel also represents 144 class members (102 of
whom have opted out and 42 of whom are settlement class members in
the case) in a mass action against the Defendant that was filed on
Dec. 4, 2019 in Marin County Superior Court and subsequently
removed to the U.S. District Court for the Northern District of
California (Aguilar, et al. v. Walgreens, N.D. Case No.
20-cv-00124-MMC). Over 100 of the Aguilar plaintiffs opted-out of
the Caves settlement. Aguilar is currently stayed pending a Case
Management Conference in that case scheduled for May 7, 2021.
The Plaintiffs, the Defendant and the Objector have agreed to
attempt to resolve their respective disputes pursuant to a global
mediation within the next 90 days. Therefore, the parties
stipulate and agree, subject to Court approval, to stay the case
for a period of 90 days to permit the parties to complete a global
mediation.
Good cause having been shown, Judge England adopts the stipulation
of the parties as his order. He stays the case for 90 days from
the date the Order is electronically filed. By the conclusion of
this 90-day period, the parties will file a Joint Status Report
advising the Court as to the status of the case. The Judge denies
the Plaintiffs' Motion for Attorneys' Fees without prejudice to
renewal, if appropriate, once the stay is lifted.
A full-text copy of the Court's April 6, 2021 Order is available at
https://tinyurl.com/hefz4ydr from Leagle.com.
James C. Shah -- jcshah@millershah.com -- MILLER SHAH, LLP, San
Diego, CA, John F. Edgar (pro hac vice forthcoming), EDGAR LAW FIRM
LLC, in Kansas City, Missouri, Attorneys for Plaintiffs Gloria
Caves and Tamim Kabir.
Allison C. Eckstrom -- allison.eckstrom@bclplaw.com -- Christopher
J. Archibald -- christopher.archibald@bclplaw.com -- Karina Lo --
karina.lo@bclplaw.com -- BRYAN CAVE LEIGHTON PAISNER LLP, Irvine,
California, Daria Dub Carlson, BRYAN CAVE LEIGHTON PAISNER LLP, in
Santa Monica, California, Attorneys for Defendant Walgreen Co.
WALLGREENS BOOTS: Rite Aid Shareholders Securities Suit Underway
----------------------------------------------------------------
Walgreens Boots Alliance, Inc. said in its Form 10-Q Report filed
with the Securities and Exchange Commission on March 31, 2021, for
the quarterly period ended February 28, 2021, that the company
continues to defend a class action suit initiated by purported Rite
Aid shareholders.
On December 11, 2017, purported Rite Aid shareholders filed an
amended complaint in a putative class action lawsuit in the U.S.
District Court for the Middle District of Pennsylvania arising out
of transactions contemplated by the merger agreement between the
Company and Rite Aid.
The amended complaint alleged that the Company and certain of its
officers made false or misleading statements regarding the
transactions. The Court denied the Company's motion to dismiss the
amended complaint on April 15, 2019.
The Company filed an answer and affirmative defenses, discovery
commenced, and the Court granted plaintiffs' motion for class
certification.
In October and December 2020, two separate purported Rite Aid
Shareholders filed lawsuits in the same court as the M.D. Pa.
action opting out of the class in the M.D. Pa. action making nearly
identical allegations as those in the M.D. Pa. action.
On December 24, 2020, the parties to the Direct Actions filed a
joint stipulation to stay the Direct Actions until the earlier of
(a) 30 days after the entry of an order resolving any pre-trial
dispositive motions in the M.D. Pa. action, or (b) 30 days after
the entry of an order of final approval of any settlement of the
M.D. Pa. action. The court so ordered the joint stipulation on
December 28, 2020.
Walgreens Boots Alliance, Inc. operates as a pharmacy-led health
and wellbeing company. It operates through three segments: Retail
Pharmacy USA, Retail Pharmacy International, and Pharmaceutical
Wholesale. Walgreens Boots Alliance, Inc. was founded in 1901 and
is based in Deerfield, Illinois.
WW INTERNATIONAL: Bid to Toss Membership Fees Related Suit Pending
------------------------------------------------------------------
WW International, Inc. said in its Form 10-K/A report filed with
the U.S. Securities and Exchange Commission on March 30, 2021, for
the fiscal year ended December 31, 2020, that the company's motion
to dismiss the class action suit filed by Workshops + Digital
member, is pending.
In June 2020, a Workshops + Digital (then known as Studio +
Digital) member filed a class action complaint against the Company
in the Superior Court of California in Ventura County.
The complaint was filed on behalf of all Workshops + Digital
members nationwide and regards the fees charged for Workshops +
Digital memberships since the replacement of in-person workshops
with virtual workshops in March 2020 in response to the COVID-19
pandemic.
The complaint alleged, among other things, that the Company's
decision to charge its members the full Workshops + Digital
membership fee while only providing a virtual workshop experience
violated California state consumer protection laws and gave rise to
claims for breach of contract, fraud, and other tort causes of
action based on the same factual allegations that are the basis for
the breach of contract claim.
The plaintiff seeks to recover damages plus injunctive relief to
enjoin the Company from engaging in similar conduct in the future
on behalf of the class members.
On July 30, 2020, the Company filed a notice to remove the matter
to the United States District Court for the Central District of
California, and per the parties' stipulation, on August 7, 2020,
the case was transferred to the United States District Court for
the Southern District of New York.
On September 23, 2020, the Company filed a motion to dismiss all of
the plaintiff's claims with prejudice. At the parties' September
29, 2020 preliminary conference, the court issued an order
permitting the plaintiff to either submit her opposition to the
motion to dismiss or file an amended complaint by October 14, 2020.
On October 14, 2020, the plaintiff filed an amended complaint with
predominantly the same claims. The Company filed another motion to
dismiss the matter on November 4, 2020. The plaintiff filed her
opposition brief on November 19, 2020, and the Company filed its
reply brief on November 25, 2020.
The Company believes that this matter is without merit and intends
to vigorously defend it.
WW International, Inc. provides weight control programs. The
Company offers subscriptions for commitment plans that give their
clients access to meetings and online subscriptions. WW
International also gives their members guidance and access to a
supportive community to help enable them for healthy habits. The
company is based in New York, New York.
XL FLEET: Faces Suh and Kumar Putative Class Suits
--------------------------------------------------
XL Fleet Corp. said in its Form 10-K report filed with the U.S.
Securities and Exchange Commission on March 31, 2021, for the
fiscal year ended December 31, 2020, that the company is facing two
putative class action suits entitled, Suh v. XL Fleet Corp., et
al., Case No. 1:21-cv-02002 and Kumar v. XL Fleet Corp., et al.,
Case No. 1:21-cv-02171.
On March 8, 2021, a putative class action complaint was filed in
federal district court for the Southern District of New York (Suh
v. XL Fleet Corp., et al., Case No. 1:21-cv-02002) against the
company and certain of its current officers and directors.
On March 12, 2021, a second putative class action complaint was
filed in federal district court for the Southern District of New
York (Kumar v. XL Fleet Corp., et al., Case No. 1:21-cv-02171)
against the company and certain of its current officers and
directors.
Both the Suh Complaint and the Kumar Complaint allege that certain
public statements made by the defendants between October 2, 2020
and March 2, 2021 violated Sections 10(b) and 20(a) of the Exchange
Act and Rule 10b-5 promulgated thereunder.
XL Fleet said, "We believe that the allegations asserted in the Suh
Complaint and Kumar Complaint are without merit, and we intend to
vigorously defend both lawsuits. There can be no assurance,
however, that we will be successful. At this time, we are unable to
estimate potential losses, if any, related to either lawsuit."
XL Fleet Corp. is a leading provider of fleet electrification
solutions for commercial vehicles in North America, with over 4,300
electrified powertrain systems sold and driven over 140 million
miles by over 200 fleets as of December 31, 2020. The company's
vision is to become the world leader in fleet electrification
solutions, with a mission of accelerating the adoption of fleet
electrification systems through cost-effective, customer-tailored
and comprehensive solutions. The company is based in Boston,
Massachusetts.
XPRESSPA GROUP: Collins Class Action Settled
--------------------------------------------
XpresSpa Group, Inc. said in its Form 10-K report filed with the
U.S. Securities and Exchange Commission on March 31, 2021, for the
fiscal year ended December 31, 2020, that the class action suit
entitled, Kyle Collins v. Spa Products Import & Distribution Co.,
LLC et al., has been settled.
This is a combined class action and California Private Attorney's
General Act ("PAGA") action.
Plaintiff seeks to recover wages, penalties and PAGA penalties for
claims for (1) failure to provide meal periods, (2) failure to
provide rest breaks, (3) failure to pay overtime, (4) inaccurate
wage statements, (5) waiting time penalties, and (6) PAGA penalties
of $100 per employee per pay period per violation.
There are approximately 240 current and former employees in the
litigation class. The parties agreed to mediation on May 26, 2020,
however, due to COVID-19 the parties subsequently stayed all
proceedings.
The mediation session occurred on March 18, 2021 and the matter was
settled.
XpresSpa Group, Inc. (NASDAQ: XSPA), a health and wellness services
company, provides spa services to travelers at airports. The
Company was formerly known as FORM Holdings Corp. and changed its
name to XpresSpa Group, Inc. in January 2018. XpresSpa Group, Inc.
is headquartered in New York, New York.
ZUORA INC: Continues to Defend Consolidated IPO Related Class Suit
------------------------------------------------------------------
Zuora, Inc. said in its Form 10-K report filed with the U.S.
Securities and Exchange Commission on March 31, 2021, for the
fiscal year ended December 31, 2020, that the company continues to
defend a putative consolidated class action suit related to the
company's initial public offering (IPO).
In April and May 2020, two putative securities class action
lawsuits were filed in the Superior Court of the State of
California, County of San Mateo, naming as defendants Zuora and
certain of its current and former officers, its directors and the
underwriters of its IPO.
The complaints purport to bring suit on behalf of stockholders who
purchased or otherwise acquired the company's securities pursuant
or traceable to the Registration Statement and Prospectus issued in
connection with the company's IPO and allege claims under Sections
11, 12(a)(2) and 15 of the Securities Act of 1933.
The suits seek unspecified damages and other relief. In July 2020,
the court entered an order consolidating the two lawsuits, and the
lead plaintiff filed a consolidated amended complaint asserting the
same claims.
In October 2020, the court denied defendants' demurrer as to the
Section 11 and Section 15 claims and granted the demurrer as to the
Section 12(a)(2) claim with leave to file an amended complaint.
In November 2020, the lead plaintiff filed an amended consolidated
complaint. Defendants' demurrer to the Section 12(a)(2) claim was
sustained with further leave to amend.
Zuora, Inc. is a leading cloud-based subscription management
platform. The company provides software that enables companies
across multiple industries and geographies to launch, manage or
transform to a subscription business model. Architected
specifically for dynamic, recurring subscription business models,
the company's cloud-based software functions as an intelligent
subscription management hub that automates and orchestrates the
entire subscription order-to-revenue process, including billing and
revenue recognition. The company is based in San Mateo, California.
ZUORA INC: Discovery Ongoing in California Putative Class Suit
--------------------------------------------------------------
Zuora, Inc. said in its Form 10-K report filed with the U.S.
Securities and Exchange Commission on March 31, 2021, for the
fiscal year ended December 31, 2020, that discovery is ongoing in
the putative securities class suit filed in the U.S. District Court
for the Northern District of California.
In June 2019, a putative securities class action lawsuit was filed
in the U.S. District Court for the Northern District of California
naming Zuora and certain of our officers as defendants.
The complaint purports to bring suit on behalf of stockholders who
purchased or otherwise acquired the company's securities between
April 12, 2018 and May 30, 2019.
The complaint alleges that defendants made false and misleading
statements about our business, operations and prospects in
violation of Sections 10(b) and 20(a) of the Securities Exchange
Act of 1934, as amended (Exchange Act), and seeks unspecified
compensatory damages, fees and costs.
In November 2019, the lead plaintiff filed a consolidated amended
complaint asserting the same claims.
In April 2020, the Court denied defendants' motion to dismiss.
Discovery in the case is ongoing.
Zuora, Inc. is a leading cloud-based subscription management
platform. The company provides software that enables companies
across multiple industries and geographies to launch, manage or
transform to a subscription business model. Architected
specifically for dynamic, recurring subscription business models,
the company's cloud-based software functions as an intelligent
subscription management hub that automates and orchestrates the
entire subscription order-to-revenue process, including billing and
revenue recognition. The company is based in San Mateo, California.
Asbestos Litigation
ASBESTOS UPDATE: Avon Products Has 164 Pending cases as of Dec. 31
------------------------------------------------------------------
Avon Products, Inc. is a defendant of 164 individual cases pending,
as of December 31, 2020, alleging that certain talc products the
Company sold in the past were contaminated with asbestos, according
to the Company's Form 10-K filing with the U.S. Securities and
Exchange Commission.
The Company states, "Many of these actions involve a number of
co-defendants from a variety of different industries, including
manufacturers of cosmetics and manufacturers of other products
that, unlike the Company's products, were designed to contain
asbestos. During the three months ended December 31, 2020, 31 new
cases were filed and 14 cases were dismissed, settled or otherwise
resolved. The value of the settlements was not material, either
individually or in the aggregate, to the Company's results of
operations for the year ended December 31, 2020. Additional similar
cases arising out of the use of the Company's talc products are
reasonably anticipated.
"We believe that the claims asserted against us in these cases are
without merit. We are defending vigorously against these claims and
will continue to do so. To date, the Company has not proceeded to
trial in any case filed against it and there have been no findings
of liability enforceable against the Company. However, nationwide
trial results in similar cases filed against other manufacturers of
cosmetic talc products have ranged from outright dismissals to very
large jury awards of both compensatory and punitive damages. Given
the inherent uncertainties of litigation, we cannot predict the
outcome of all individual cases pending against the Company, and we
are only able to make a specific estimate for a small number of
individual cases that have advanced to the later stages of legal
proceedings. For the remaining cases, we provide an estimate of
exposure on an aggregated and ongoing basis, which takes into
account the historical outcomes of all cases we have resolved to
date. Any accruals currently recorded on the Company's balance
sheet with respect to these cases are not material. However, any
adverse outcomes, either in an individual case or in the aggregate,
could be material. Future costs to litigate these cases, which we
expense as incurred, are not known but may be significant, though
some costs will be covered by insurance."
A full-text copy of the Form 10-K is available at
https://bit.ly/3dfRYQn
ASBESTOS UPDATE: CarParts.com's Subsidiaries Faces Claims
---------------------------------------------------------
CarParts.com, Inc.'s wholly-owned subsidiary, Automotive Specialty
Accessories and Parts, Inc. and its wholly-owned subsidiary Whitney
Automotive Group, Inc. ("WAG"), are named defendants in several
lawsuits involving claims for damages caused by installation of
brakes during the late 1960's and early 1970's that contained
asbestos, according to the Company's Form 10-K filing with the U.S.
Securities and Exchange Commission.
The Company states, "WAG marketed certain brakes, but did not
manufacture any brakes. WAG maintains liability insurance coverage
to protect its and the Company's assets from losses arising from
the litigation and coverage is provided on an occurrence rather
than a claims made basis, and the Company is not expected to incur
significant out-of-pocket costs in connection with this matter that
would be material to its consolidated financial statements."
A full-text copy of the Form 10-K is available at
https://bit.ly/3wT7Fov
ASBESTOS UPDATE: Ceco's Subsidiary Defends 200 Cases at Dec. 31
---------------------------------------------------------------
Ceco Environmental Corp.'s subsidiary, Met-Pro, has recorded a
total of 200 cases pending as of December 31, 2020 (with Illinois,
New York, Pennsylvania and West Virginia having the largest number
of cases), as compared with 209 cases that were pending as of
December 31, 2019, according to the Company's Form 10-K filing with
the U.S. Securities and Exchange Commission.
Ceco Environmental states, "Our subsidiary, Met-Pro, beginning in
2002 began to be named in asbestos-related lawsuits filed against a
large number of industrial companies including, in particular,
those in the pump and fluid handling industries. In management's
opinion, the complaints typically have been vague, general and
speculative, alleging that Met-Pro, along with the numerous other
defendants, sold unidentified asbestos-containing products and
engaged in other related actions which caused injuries (including
death) and loss to the plaintiffs. Counsel has advised that more
recent cases typically allege more serious claims of mesothelioma.
The Company's insurers have hired attorneys who, together with the
Company, are vigorously defending these cases. Many cases have been
dismissed after the plaintiff fails to produce evidence of exposure
to Met-Pro's products. In those cases, where evidence has been
produced, the Company's experience has been that the exposure
levels are low and the Company's position has been that its
products were not a cause of death, injury or loss. The Company has
been dismissed from or settled a large number of these cases.
Cumulative settlement payments from 2002 through December 31, 2020
for cases involving asbestos-related claims were $3.1 million which
together with all legal fees other than corporate counsel expenses;
$2.9 million have been paid by the Company's insurers. The average
cost per settled claim, excluding legal fees, was approximately
$34,000.
"During 2020, 77 new cases were filed against the Company, and the
Company was dismissed from 81 cases and settled 5 cases. Most of
the pending cases have not advanced beyond the early stages of
discovery, although a number of cases are on schedules leading to
or are scheduled for trial. The Company believes that its insurance
coverage is adequate for the cases currently pending against the
Company and for the foreseeable future, assuming a continuation of
the current volume, nature of cases and settlement amounts.
However, the Company has no control over the number and nature of
cases that are filed against it, nor as to the financial health of
its insurers or their position as to coverage. The Company also
presently believes that none of the pending cases will have a
material adverse impact upon the Company's results of operations,
liquidity or financial condition."
A full-text copy of the Form 10-K is available at
https://bit.ly/2OQ51Pg
ASBESTOS UPDATE: Circor's Subsidiaries Still Faces Claims
---------------------------------------------------------
Circor International Inc. reports that asbestos-related product
liability claims continue to be filed against two of the its
subsidiaries: CIRCOR Instrumentation Technologies, Inc. (f/k/a
Hoke, Inc.), the stock of which the Company acquired in 1998 and
Spence Engineering Company, Inc., the stock of which the Company
acquired in 1984, according to the Company's Form 10-K filing with
the U.S. Securities and Exchange Commission.
The Company states, "The Hoke subsidiary was divested in January
2020 through the sale of the I&S business. However, the Company has
indemnified the buyer for asbestos-related claims that are made
against Hoke. Due to the nature of the products supplied by these
entities, the markets they serve and the Company's historical
experience in resolving these claims, the Company does not expect
that these asbestos-related claims will have a material adverse
effect on the financial condition, results of operations or
liquidity of the Company."
A full-text copy of the Form 10-K is available at
https://bit.ly/3e1puZV
ASBESTOS UPDATE: Genesis Healthcare Has $6.6MM ARO Liability
------------------------------------------------------------
Genesis Healthcare, Inc. has a liability for the asset retirement
obligation associated primarily with the cost of asbestos removal
aggregating approximately $6.6 million and $6.6 million,
respectively, at December 31, 2020 and 2019, according to the
Company's Form 10-K filing with the U.S. Securities and Exchange
Commission.
The Company states, "Certain of the Company's leased and owned real
estate assets contain asbestos, which is believed to be
appropriately contained in accordance with environmental
regulations. If these properties were demolished or subject to
renovation activities that disturb the asbestos, certain
environmental regulations are in place, which specify the manner in
which the asbestos must be handled and disposed.
"The liability for each facility will be accreted to its settlement
value, which is estimated to approximate $16.6 million through the
estimated settlement dates extending from 2021 through 2042. Due
to the time over which these obligations could be settled and the
judgment used to determine the liability, the ultimate obligation
may differ from the estimate. Upon settlement, any difference
between actual cost and the estimate is recognized as a gain or
loss in that period.
"Annual accretion of the liability is recorded each year for the
impacted assets until the obligation year is reached, either by
sale of the property, demolition or some other future event such as
a government action."
A full-text copy of the Form 10-K is available at
https://bit.ly/2QosEil
ASBESTOS UPDATE: Global Indemnity Had $15.8MM Asbestos Reserves
---------------------------------------------------------------
Global Indemnity Group, LLC has $15.8 million of net loss reserves
for asbestos-related claims and $12.9 million for environmental
claims, as of December 31, 2020, according to the Company's Form
10-K filing with the U.S. Securities and Exchange Commission.
The Company states, "The liability for unpaid losses and loss
adjustment expenses, inclusive of A&E reserves, reflects the
Company's best estimates for future amounts needed to pay losses
and related loss adjustment expenses as of each of the balance
sheet dates reflected in the financial statements herein in
accordance with GAAP. The Company attempts to estimate the full
impact of the A&E exposures by establishing specific case reserves
on all known losses.
"The Company's environmental exposure arises from the sale of
general liability and commercial multi-peril insurance. Currently,
the Company's policies continue to exclude classic environmental
contamination claims. However, in some states, the Company is
required, depending on the circumstances, to provide coverage for
certain bodily injury claims, such as an individual's exposure to a
release of chemicals. The Company has also issued policies that
were intended to provide limited pollution and environmental
coverage. These policies were specific to certain types of
products underwritten by the Company. The Company has also
received a number of asbestos-related claims, the majority of which
are declined based on well-established exclusions. In establishing
the liability for unpaid losses and loss adjustment expenses
related to A&E exposures, management considers facts currently
known and the current state of the law and coverage litigations.
Estimates of these liabilities are reviewed and updated
continually.
"Uncertainty remains as to the Company's ultimate liability for
asbestos-related claims due to such factors as the long latency
period between asbestos exposure and disease manifestation and the
resulting potential for involvement of multiple policy periods for
individual claims, the increase in the volume of claims made by
plaintiffs who claim exposure but who have no symptoms of
asbestos-related disease, and an increase in claims subject to
coverage under general liability policies that do not contain
aggregate limits of liability.
"In addition to the factors referenced above, establishing reserves
for A&E and other mass tort claims involves considerably more
judgment than other types of claims due to, among other things,
inconsistent court decisions, an increase in bankruptcy filings as
a result of asbestos related liabilities, and judicial
interpretations that often expand theories of recovery and broaden
the scope of coverage."
A full-text copy of the Form 10-K is available at
https://bit.ly/3shgiFY
ASBESTOS UPDATE: GMS Inc. Defends 36 PI Suits as of Jan. 31
-----------------------------------------------------------
GMS Inc., since 2002 and as of January 31, 2021, has received
approximately 1,019 asbestos-related personal injury lawsuits filed
against the Company. Of these, 973 have been dismissed without any
payment by GMS Inc., 36 are pending and only 10 have been settled,
according to the Company's Form 10-Q filing with the U.S.
Securities and Exchange Commission.
The Company states, "The building materials industry has been
subject to personal injury and property damage claims arising from
alleged exposure to raw materials contained in building products as
well as claims for incidents of catastrophic loss, such as building
fires. As a distributor of building materials, we face an inherent
risk of exposure to product liability claims in the event that the
use of the products we have distributed in the past or may in the
future distribute is alleged to have resulted in economic loss,
personal injury or property damage or violated environmental,
health or safety or other laws. Such product liability claims have
included and may in the future include allegations of defects in
manufacturing, defects in design, a failure to warn of dangers
inherent in the product, negligence, strict liability or a breach
of warranties. In particular, certain of our subsidiaries have been
the subject of claims related to alleged exposure to
asbestos-containing products they distributed prior to 1979. We are
exposed to product liability, warranty, casualty, construction
defect, contract, tort, employment and other claims and legal
proceedings related to our business, the products we distribute,
the services we provide and services provided for us by third
parties"
A full-text copy of the Form 10-Q is available at
https://bit.ly/3wSWOe6
ASBESTOS UPDATE: Graybar Electric Defends 3,424 Individual Cases
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Graybar Electric Company, Inc., has recorded 3,424 individual cases
and 67 multiple-plaintiff pending cases, as of December 31, 2020,
that allege actual or potential asbestos-related injuries resulting
from the use of or exposure to products allegedly sold by us,
according to the Company's Form 10-K filing with the U.S.
Securities and Exchange Commission.
The Company states, "Additional claims will likely be filed against
us in the future. Our insurance carriers have historically borne
virtually all costs and liability with respect to this litigation
and are continuing to do so. Accordingly, our future liability
with respect to pending and unasserted claims is dependent on the
continued solvency of our insurance carriers. Other factors that
could impact this liability are: the number of future claims filed
against us; the defense and settlement costs associated with these
claims; changes in the litigation environment, including changes in
federal or state law governing the compensation of asbestos
claimants; adverse jury verdicts in excess of historic settlement
amounts; and bankruptcies of other asbestos defendants. Because
any of these factors may change, our future exposure is
unpredictable, and it is possible that we may incur costs that
would have a material adverse impact on our liquidity, financial
position, or results of operations in future periods."
A full-text copy of the Form 10-K is available at
https://bit.ly/32foYls
ASBESTOS UPDATE: Hexion Inc. Linked in Various Legal Proceedings
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Hexion Inc. is involved in various other product liability,
commercial and employment litigation, personal injury, property
damage and other legal proceedings, including actions that allege
harm caused by products the Company has allegedly made or used,
containing silica, vinyl chloride monomer and asbestos, according
to the Company's Form 10-K filing with the U.S. Securities and
Exchange Commission.
Hexion states, "The Company believes it has adequate reserves and
that it is not reasonably possible that a loss exceeding amounts
already reserved would be material. Furthermore, the Company has
insurance to cover claims of these types."
A full-text copy of the Form 10-K is available at
https://bit.ly/3ab0m1D
ASBESTOS UPDATE: Intricon Corp. Faces Alleged Exposure Claims
-------------------------------------------------------------
Intricon Corporation is a defendant along with a number of other
parties in lawsuits alleging that plaintiffs have or may have
contracted asbestos-related diseases as a result of exposure to
asbestos products or equipment containing asbestos sold by one or
more named defendants, according to the Company's Form 10-K filing
with the U.S. Securities and Exchange Commission.
The Company states, "These lawsuits relate to the discontinued heat
technologies segment which was sold in March 2005. Due to the
non-informative nature of the complaints, the Company does not know
whether any of the complaints state valid claims against the
Company. Certain insurance carriers have informed the Company that
the primary policies for the period August 1, 1970-1978 have been
exhausted and that the carriers will no longer provide defense and
insurance coverage under those policies. However, the Company has
other primary and excess insurance policies that the Company
believes afford coverage for later years. Some of these other
primary insurers have accepted defense and insurance coverage for
these suits, and some of them have either ignored the Company's
tender of defense of these cases, or have denied coverage, or have
accepted the tenders but asserted a reservation of rights and/or
advised the Company that they need to investigate further. Because
settlement payments are applied to all years a litigant was deemed
to have been exposed to asbestos, the Company believes that it will
have funds available for defense and insurance coverage under the
non-exhausted primary and excess insurance policies. However,
unlike the older policies, the more recent policies have deductible
amounts for defense and settlements costs that the Company will be
required to pay; accordingly, the Company expects that its
litigation costs will increase in the future. Further, many of the
policies covering later years (approximately 1984 and thereafter)
have exclusions for any asbestos products or operations, and thus
do not provide insurance coverage for asbestos-related lawsuits.
The Company does not believe that the asserted exhaustion of some
of the primary insurance coverage for the 1970-1978 period will
have a material adverse effect on its financial condition,
liquidity, or results of operations. Management believes that the
number of insurance carriers involved in the defense of the suits,
and the significant number of policy years and policy limits under
which these insurance carriers are insuring the Company, make the
ultimate disposition of these lawsuits not material to the
Company's consolidated financial position or results of operations.
As of December 31, 2020, we have $129 and $721 recorded within
other accrued liabilities and other long-term liabilities,
respectively, within our Consolidated Balance Sheet for estimated
future claims. An insurance receivable of $129 and $721 is recorded
within other current assets and other assets, net, respectively,
within our Consolidated Balance Sheet for estimated insurance
recoveries."
A full-text copy of the Form 10-K is available at
https://bit.ly/3sgo6rA
ASBESTOS UPDATE: Mallinckrodt Faces 11,800 Suits as of Dec. 25
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Mallinckrodt plc has approximately 11,800 asbestos-related cases
pending against the Company, as of December 25, 2020, by which
majority of the cases involve product liability claims based
principally on allegations of past distribution of products
containing asbestos, according to the Company's Form 10-K filing
with the U.S. Securities and Exchange Commission.
The Company states, "Beginning with lawsuits brought in July 1976,
the Company is named as a defendant in personal injury lawsuits
based on alleged exposure to asbestos-containing materials. A
limited number of the cases allege premises liability based on
claims that individuals were exposed to asbestos while on the
Company's property. Each case typically names dozens of corporate
defendants in addition to the Company. The complaints generally
seek monetary damages for personal injury or bodily injury
resulting from alleged exposure to products containing asbestos.
The Company's involvement in asbestos cases has been limited
because it did not mine or produce asbestos. Furthermore, in the
Company's experience, a large percentage of these claims have never
been substantiated and have been dismissed by the courts. The
Company has not suffered an adverse verdict in a trial court
proceeding related to asbestos claims and intends to continue to
defend these lawsuits. When appropriate, the Company settles
claims; however, amounts paid to settle and defend all asbestos
claims have been immaterial.
"The Company estimates pending asbestos claims, claims that were
incurred but not reported and related insurance recoveries, which
are recorded on a gross basis in the consolidated balance sheets.
The Company's estimate of its liability for pending and future
claims is based on claims experience over the past five years and
covers claims either currently filed or expected to be filed over
the next seven years. The Company believes that it has adequate
amounts recorded related to these matters. While it is not possible
at this time to determine with certainty the ultimate outcome of
these asbestos-related proceedings, the Company believes, given the
information currently available, that the ultimate resolution of
all known and anticipated future claims, after taking into account
amounts already accrued, along with recoveries from insurance, will
not have a material adverse effect on its financial condition,
results of operations and cash flows."
A full-text copy of the Form 10-K is available at
https://bit.ly/2Q4Vlkl
ASBESTOS UPDATE: Metropolitan Life Defends Several PI Claims
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Metropolitan Life Insurance Company is and has been a defendant in
a large number of asbestos-related suits filed primarily in state
courts alleging that the plaintiff or plaintiffs suffered personal
injury resulting from exposure to asbestos and seek both actual and
punitive damages, according to the Company's Form 10-K filing with
the U.S. Securities and Exchange Commission.
The Company states, "Metropolitan Life Insurance Company has never
engaged in the business of manufacturing, producing, distributing
or selling asbestos or asbestos-containing products nor has
Metropolitan Life Insurance Company issued liability or workers'
compensation insurance to companies in the business of
manufacturing, producing, distributing or selling asbestos or
asbestos-containing products. The lawsuits principally have focused
on allegations with respect to certain research, publication and
other activities of one or more of Metropolitan Life Insurance
Company's employees during the period from the 1920s through
approximately the 1950s and allege that Metropolitan Life Insurance
Company learned or should have learned of certain health risks
posed by asbestos and, among other things, improperly publicized or
failed to disclose those health risks. Metropolitan Life Insurance
Company believes that it should not have legal liability in these
cases. The outcome of most asbestos litigation matters, however, is
uncertain and can be impacted by numerous variables, including
differences in legal rulings in various jurisdictions, the nature
of the alleged injury and factors unrelated to the ultimate legal
merit of the claims asserted against Metropolitan Life Insurance
Company. Metropolitan Life Insurance Company employs a number of
resolution strategies to manage its asbestos loss exposure,
including seeking resolution of pending litigation by judicial
rulings and settling individual or groups of claims or lawsuits
under appropriate circumstances.
"Claims asserted against Metropolitan Life Insurance Company have
included negligence, intentional tort and conspiracy concerning the
health risks associated with asbestos. Metropolitan Life Insurance
Company's defenses (beyond denial of certain factual allegations)
include that: (i) Metropolitan Life Insurance Company owed no duty
to the plaintiffs — it had no special relationship with the
plaintiffs and did not manufacture, produce, distribute or sell the
asbestos products that allegedly injured plaintiffs; (ii)
plaintiffs did not rely on any actions of Metropolitan Life
Insurance Company; (iii) Metropolitan Life Insurance Company's
conduct was not the cause of the plaintiffs' injuries; (iv)
plaintiffs' exposure occurred after the dangers of asbestos were
known; and (v) the applicable time with respect to filing suit has
expired. During the course of the litigation, certain trial courts
have granted motions dismissing claims against Metropolitan Life
Insurance Company, while other trial courts have denied
Metropolitan Life Insurance Company's motions. There can be no
assurance that Metropolitan Life Insurance Company will receive
favorable decisions on motions in the future. While most cases
brought to date have settled, Metropolitan Life Insurance Company
intends to continue to defend aggressively against claims based on
asbestos exposure, including defending claims at trials.
"The Company believes adequate provision has been made in its
consolidated financial statements for all probable and reasonably
estimable losses for asbestos-related claims. Metropolitan Life
Insurance Company's recorded asbestos liability is based on its
estimation of the following elements, as informed by the facts
presently known to it, its understanding of current law and its
past experiences: (i) the probable and reasonably estimable
liability for asbestos claims already asserted against Metropolitan
Life Insurance Company, including claims settled but not yet paid;
(ii) the probable and reasonably estimable liability for asbestos
claims not yet asserted against Metropolitan Life Insurance
Company, but which Metropolitan Life Insurance Company believes are
reasonably probable of assertion; and (iii) the legal defense costs
associated with the foregoing claims. Significant assumptions
underlying Metropolitan Life Insurance Company's analysis of the
adequacy of its recorded liability with respect to asbestos
litigation include: (i) the number of future claims; (ii) the cost
to resolve claims; and (iii) the cost to defend claims.
"Metropolitan Life Insurance Company reevaluates on a quarterly and
annual basis its exposure from asbestos litigation, including
studying its claims experience, reviewing external literature
regarding asbestos claims experience in the United States,
assessing relevant trends impacting asbestos liability and
considering numerous variables that can affect its asbestos
liability exposure on an overall or per claim basis. These
variables include bankruptcies of other companies involved in
asbestos litigation, legislative and judicial developments, the
number of pending claims involving serious disease, the number of
new claims filed against it and other defendants and the
jurisdictions in which claims are pending. Based upon its regular
reevaluation of its exposure from asbestos litigation, Metropolitan
Life Insurance Company has updated its recorded liability for
asbestos-related claims to $425 million at December 31, 2020."
A full-text copy of the Form 10-K is available at
https://bit.ly/3mMaXFe
ASBESTOS UPDATE: Natura & Co's Subsidiary Had 164 Pending Cases
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Natura & Co Holding S.A.'s subsidiary, Avon is a defendant of 164
pending individual cases filed in U.S. courts, as of December 31,
2020, alleging that certain talc products Avon sold in the past
were contaminated with asbestos, according to the Company's Form
6-K filing with the U.S. Securities and Exchange Commission.
The Company states, "Many of these actions involve a number of
co-defendants from a variety of different industries, including
manufacturers of cosmetics and manufacturers of other products
that, unlike the Avon's products, were designed to contain
asbestos. During the three months ended December 31, 2020, 31 new
cases were filed and 14 cases were dismissed, settled or otherwise
resolved. The value of the settlements was not material, either
individually or in the aggregate, to the Avon's results of
operations for the year ended December 31, 2020. Additional similar
cases arising out of the use of the Avon's talc products are
reasonably anticipated.
"We believe that the claims asserted against us in these cases are
without merit. We are defending vigorously against these claims and
will continue to do so. To date, the Avon has not proceeded to
trial in any case filed against it and there have been no findings
of liability enforceable against the Company. However, nationwide
trial results in similar cases filed against other manufacturers of
cosmetic talc products have ranged from outright dismissals to very
large jury awards of both compensatory and punitive damages. Given
the inherent uncertainties of litigation, we cannot predict the
outcome of all individual cases pending against the Company, and we
are only able to make a specific estimate for a small number of
individual cases that have advanced to the later stages of legal
proceedings. For the remaining cases, we provide an estimate of
exposure on an aggregated and ongoing basis, which takes into
account the historical outcomes of all cases we have resolved to
date. Any accruals currently recorded on the Avon's balance sheet
with respect to these cases are not material. However, any adverse
outcomes, either in an individual case or in the aggregate, could
be material. Future costs to litigate these cases, which we expense
as incurred, are not known but may be significant, though some
costs will be covered by insurance."
A full-text copy of the Form 6-K is available at
https://bit.ly/2Rt1NSx
ASBESTOS UPDATE: Navistar International Faces Exposure Claims
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Navistar International Corporation, along with other vehicle
manufacturers, is subject to a number of asbestos-related claims
relating to illnesses alleged to have resulted from asbestos
exposure from component parts found in older vehicles, although
some cases relate to the alleged presence of asbestos in its
facilities, according to the Company's Form 10-Q filing with the
U.S. Securities and Exchange Commission.
The Company states, "In these claims, we are generally not the sole
defendant, and the claims name as defendants numerous manufacturers
and suppliers of a wide variety of products allegedly containing
asbestos. We have strongly disputed these claims, and it has been
our policy to defend against them vigorously. Historically, the
actual damages paid out to claimants have not been material in any
year to our financial condition, results of operations, or cash
flows. It is possible that the number of these asbestos-related
claims, and the costs for resolving them, could become significant
in the future."
A full-text copy of the Form 10-Q is available at
https://bit.ly/3dZXw0G
ASBESTOS UPDATE: NL Industries Defends PI Lawsuits as of Dec. 31
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NL Industries, Inc., has been named as a defendant in various
lawsuits in several jurisdictions, alleging personal injuries as a
result of occupational exposure primarily to products manufactured
by our former operations containing asbestos, silica and/or mixed
dust, according to the Company's Form 10-K filing with the U.S.
Securities and Exchange Commission.
The Company states, "In addition, some plaintiffs allege exposure
to asbestos from working in various facilities previously owned
and/or operated by us. There are 104 of these types of cases
pending, involving a total of approximately 579 plaintiffs. In
addition, the claims of approximately 8,715 plaintiffs have been
administratively dismissed or placed on the inactive docket in Ohio
state courts. We do not expect these claims will be re-opened
unless the plaintiffs meet the courts' medical criteria for
asbestos-related claims. We have not accrued any amounts for this
litigation because of the uncertainty of liability and inability to
reasonably estimate the liability, if any. To date, we have not
been adjudicated liable in any of these matters.
"We believe the range of reasonably possible outcomes of these
matters will be consistent with our historical costs (which are not
material). Furthermore, we do not expect any reasonably possible
outcome would involve amounts material to our consolidated
financial position, results of operations or liquidity. We have
sought and will continue to vigorously seek, dismissal and/or a
finding of no liability from each claim. In addition, from time to
time, we have received notices regarding asbestos or silica claims
purporting to be brought against former subsidiaries, including
notices provided to insurers with which we have entered into
settlements extinguishing certain insurance policies. These
insurers may seek indemnification from us.
"We are involved in certain legal proceedings with a number of our
former insurance carriers regarding the nature and extent of the
carriers' obligations to us under insurance policies with respect
to certain lead pigment and asbestos lawsuits. The issue of
whether insurance coverage for defense costs or indemnity or both
will be found to exist for our lead pigment and asbestos litigation
depends upon a variety of factors and we cannot assure you that
such insurance coverage will be available.
"We have agreements with certain of our former insurance carriers
pursuant to which the carriers reimburse us for a portion of our
future lead pigment litigation defense costs, and one such carrier
reimburses us for a portion of our future asbestos litigation
defense costs. We are not able to determine how much we will
ultimately recover from these carriers for defense costs incurred
by us because of certain issues that arise regarding which defense
costs qualify for reimbursement. While we continue to seek
additional insurance recoveries, we do not know if we will be
successful in obtaining reimbursement for either defense costs or
indemnity. Accordingly, we recognize insurance recoveries in
income only when receipt of the recovery is probable and we are
able to reasonably estimate the amount of the recovery."
A full-text copy of the Form 10-K is available at
https://bit.ly/3e2zfHc
ASBESTOS UPDATE: Park Ohio Defends 118 PI Cases as of Dec. 31
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Park Ohio Holdings Corp. is a co-defendant in approximately 118
cases asserting claims on behalf of approximately 219 plaintiffs
alleging personal injury as a result of exposure to asbestos,
according to the Company's Form 10-K filing with the U.S.
Securities and Exchange Commission.
The Company states, "These asbestos cases generally relate to
production and sale of asbestos-containing products and allege
various theories of liability, including negligence, gross
negligence and strict liability, and seek compensatory and, in some
cases, punitive damages.
"In every asbestos case in which we are named as a party, the
complaints are filed against multiple named defendants. In
substantially all of the asbestos cases, the plaintiffs either
claim damages in excess of a specified amount, typically a minimum
amount sufficient to establish jurisdiction of the court in which
the case was filed (jurisdictional minimums generally range from
$25,000 to $75,000), or do not specify the monetary damages sought.
To the extent that any specific amount of damages is sought, the
amount applies to claims against all named defendants.
"There are four asbestos cases, involving 20 plaintiffs, that plead
specified damages against named defendants. In each of the four
cases, the plaintiff is seeking compensatory and punitive damages
based on a variety of potentially alternative causes of action. In
two cases, the plaintiff has alleged three counts at $3 million
compensatory and punitive damages each; one count at $3 million
compensatory and $1 million punitive damages; one count at $1
million. In the third case, the plaintiff has alleged compensatory
and punitive damages, each in the amount of $20.0 million, for
three separate causes of action, and $5.0 million compensatory
damages for the fifth cause of action. In the fourth case, the
plaintiff has alleged compensatory and punitive damages, each in
the amount of $10.0 million, for ten separate causes of action.
"Historically, we have been dismissed from asbestos cases on the
basis that the plaintiff incorrectly sued one of our subsidiaries
or because the plaintiff failed to identify any asbestos-containing
product manufactured or sold by us or our subsidiaries. We intend
to vigorously defend these asbestos cases and believe we will
continue to be successful in being dismissed from such cases.
However, it is not possible to predict the ultimate outcome of
asbestos-related lawsuits, claims and proceedings due to the
unpredictable nature of personal injury litigation. Despite this
uncertainty, and although our results of operations and cash flows
for a particular period could be adversely affected by
asbestos-related lawsuits, claims and proceedings, management
believes that the ultimate resolution of these matters will not
have a material adverse effect on our financial condition,
liquidity or results of operations. Among the factors management
considered in reaching this conclusion were: (a) our historical
success in being dismissed from these types of lawsuits on the
bases mentioned above; (b) many cases have been improperly filed
against one of our subsidiaries; (c) in many cases the plaintiffs
have been unable to establish any causal relationship to us or our
products or premises; (d) in many cases, the plaintiffs have been
unable to demonstrate that they have suffered any identifiable
injury or compensable loss at all or that any injuries that they
have incurred did in fact result from alleged exposure to asbestos;
and (e) the complaints assert claims against multiple defendants
and, in most cases, the damages alleged are not attributed to
individual defendants. Additionally, we do not believe that the
amounts claimed in any of the asbestos cases are meaningful
indicators of our potential exposure because the amounts claimed
typically bear no relation to the extent of the plaintiff's injury,
if any.
"Our cost of defending these lawsuits has not been material to date
and, based upon available information, our management does not
expect its future costs for asbestos-related lawsuits to have a
material adverse effect on our results of operations, liquidity or
financial position."
A full-text copy of the Form 10-K is available at
https://bit.ly/3wSaTZm
ASBESTOS UPDATE: State Auto Has $1.9MM Reserves as of Dec. 31
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State Auto Financial Corporation has asbestos reserves of $1.9
million and environmental reserves of $20.3 million, for a total
reserve of $22.2 million, or 2.2% of net losses and loss expenses
payable at December 31, 2020, according to the Company's Form 10-K
filing with the U.S. Securities and Exchange Commission.
The Company states, "Relative to December 31, 2019, asbestos and
environmental reserves decreased $0.3 million and $0.5 million,
respectively.
"The property and casualty industry has experienced significant
loss from claims related to asbestos, environmental remediation,
product liability, mold and other mass torts. Because we have
insured primarily product retailers and distributors, we do not
expect to incur the same level of liability, particularly related
to asbestos, as companies that have insured manufacturing risks."
A full-text copy of the Form 10-K is available at
https://bit.ly/3mOcNFY
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S U B S C R I P T I O N I N F O R M A T I O N
Class Action Reporter is a daily newsletter, co-published by
Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania,
USA, and Beard Group, Inc., Washington, D.C., USA. Rousel Elaine T.
Fernandez, Joy A. Agravante, Psyche A. Castillon, Julie Anne L.
Toledo, Christopher G. Patalinghug, and Peter A. Chapman, Editors.
Copyright 2021. All rights reserved. ISSN 1525-2272.
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