/raid1/www/Hosts/bankrupt/CAR_Public/210514.mbx
C L A S S A C T I O N R E P O R T E R
Friday, May 14, 2021, Vol. 23, No. 91
Headlines
3M CO: St. John Class Action Remains Stayed
3M CO: Summerville Ratepayers Putative Class Suits Underway
ANHEUSER-BUSCH LLC: Bid to Stay or Transfer Browning Suit Denied
ANHEUSER-BUSCH: Angiano Appeals Ruling in Mislabeling Suit
BLUEBIRD BIO: Rosen Named Lead Counsel in Leung Securities Suit
BP EXPLORATION: E.D. Louisiana Stays Pellegrin's BELO Complaint
CALIFORNIA: Redd Appeals Dismissal of Prisoner Civil Rights Suit
CARRINGTON MORTGAGE: Thomas-Lawson Appeals FDCPA Suit Dismissal
CELLCOM ISRAEL: Service Disconnection Related Suit Underway
CELLCOM ISRAEL: Waiting Time Related Purported Class Suit Ongoing
CIRCLE K: Court Denies Bid to Dismiss or Strike in Petterson Suit
CISION US: Section 216(b) Notice in Mikityuk FLSA Class Suit Okayed
CORE CIVIC: Joint Status Report in Martinez Class Suit Due June 4
FAST ENTERPRISES: Court Denies Bid to Intervene in Cahoo Class Suit
FCA US: Bid to Dismiss Myslivecek Suit Denied as Moot W/o Prejudice
FCA US: Court Partly Grants Bid to Dismiss Green Class Suit
GREAT PERFORMANCES: Tossing of Robinson Claims v. Kensington Upheld
KERYX BIOPHARMACEUTICAL: Andreula Appeals Class Action Dismissal
KEYCORP: Court Narrows Claims in Stark's Amended Class Complaint
KNAUF GIPS: Dismissal of Pierre's Drywall Liability Claim Affirmed
MAINE: Sparks Appeals Unemployment Suit Dismissal to 1st Cir.
MDL 2873: Rosch Sues Over Exposure to Harmful AFFF
MDL 2873: Schmierer Sues Over Exposure to Harmful AFFF
MDL 2873: Spainhour Sues Over Exposure to Toxic AFFF
PHILIP MORRIS: Dorion Class Complaint Still Not Served
PHILIP MORRIS: Jacklin Class Suit Underway in Canada
PHILIP MORRIS: Kunta Class Suit Ongoing in Canada
PHILIP MORRIS: McDermid Class Action Underway in Canada
PHILIP MORRIS: Semple Class Action Ongoing in Canada
QUEST DIAGNOSTICS: Bid to Dismiss Consolidate ERISA Suit Denied
RYDER SYSTEM: Decision on Bid to Nix Key West Policy Suit Reserved
SAMSUNG ELECTRONICS: Baird Appeals Case Dismissal to 9th Circuit
SIRIUS XM: Appeal in Flo & Eddie Class Action Stayed
SIX FLAGS: Bid to Amend Complaint in OFPRS Suit Pending
SIX FLAGS: Discovery Kingdom Employees' Suit Ongoing
SIX FLAGS: Settlement in Credit Card Info Suits Gets Initial OK
SIX FLAGS: Settlement in Suit vs SFNE Granted Final Approval
SIX FLAGS: Settlement Reached in Magic Mountain Employees' Suit
SIX FLAGS: Settlement Reached in Suit Over Unpaid Overtime
SUFFOLK COUNTY, NY: 2d Cir. Affirms Dismissal of Bens BBQ v. SCPD
SWIFT TRANSPORTATION: Valiente Appeals Summary Judgment Ruling
TEVA PHARMA: Appeals Class Certification of Ontario Teachers' Suit
TEVA PHARMA: Copaxone-Related Putative Class Suit Underway
TEVA PHARMA: Opioid-Related Suits in State & Federal Courts Ongoing
TEXAS: Court Dismisses Without Prejudice Shafer Class Suit v. TDCJ
UP FINTECH: New York Purported Class Actions Dismissed
WILLIAMS COMPANIES: Files Appeal in Del. Sup. Ct.
Asbestos Litigation
ASBESTOS UPDATE: Aerojet Rocketdyne Faces 115 Cases as of March 31
ASBESTOS UPDATE: IDEX Corp. and Subsidiaries Faces PI Lawsuits
ASBESTOS UPDATE: Lennox International Faces Exposure Claims
ASBESTOS UPDATE: MRC Global Defends 1,152 Claims at March 31
ASBESTOS UPDATE: OLIN Corp. Has $13.8MM Accrued Liabilities
*********
3M CO: St. John Class Action Remains Stayed
-------------------------------------------
3M Company said in its Form 10-Q Report filed with the Securities
and Exchange Commission on April 27, 2021, for the quarterly period
ended March 31, 2021, that parties have agreed to continue to stay
the St. John case.
A former employee filed a putative class action lawsuit against 3M,
BFI Waste Management Systems of Alabama, and others in the Circuit
Court of Morgan County, Alabama (the "St. John" case), seeking
property damage from exposure to certain perfluorochemicals at or
near the Company's Decatur, Alabama, manufacturing facility.
The parties have agreed to continue to stay the St. John case,
pending ongoing mediation between the parties involved in this case
and another case.
Two additional putative class actions filed in the same court by
certain residents in the vicinity of the Decatur plant seeking
relief on similar grounds (the Chandler case and the Stover case,
respectively) are stayed pending the resolution of class
certification issues in the St. John case.
3M Company operates as a technology company worldwide. The
company's Industrial segment offers tapes, abrasives, adhesives,
ceramics, sealants, specialty materials, purification products,
closure systems, acoustic systems products, automotive components,
abrasion-resistant films, and paint finishing and detailing
products. The company was founded in 1902 and is headquartered in
St. Paul, Minnesota.
3M CO: Summerville Ratepayers Putative Class Suits Underway
-----------------------------------------------------------
3M Company said in its Form 10-Q Report filed with the Securities
and Exchange Commission on April 27, 2021, for the quarterly period
ended March 31, 2021, that the company continues to defend two
putative class action suits initiated by ratepayers in Summerville,
Georgia, who allege their water supply was contaminated by PFAS
discharged from a textile mill.
In Alabama and Georgia, 3M, together with multiple co-defendants,
is defending three state court cases brought by municipal water
utilities, relating to 3M's sale of per- and polyfluoroalkyl
substances (PFAS) - containing products to carpet manufacturers in
Georgia.
The plaintiffs in these cases allege that the carpet manufacturers
improperly discharged PFAS into the surface water and groundwater,
contaminating drinking water supplies of cities located downstream
along the Coosa River, including Rome, Georgia and Centre and
Gadsden, Alabama. The three water utility cases remain in the early
stages of litigation.
Another case originally filed in Georgia state court was brought by
individuals asserting PFAS contamination by the Georgia carpet
manufacturers and seeking economic damages and injunctive relief on
behalf of a putative class of Rome and Floyd County water
subscribers.
This case has been removed to federal court, where 3M has filed a
motion to dismiss a series of amended complaints.
3M, together with co-defendants, is also defending two putative
class actions in federal court, where the plaintiffs seek relief on
behalf of classes of individual ratepayers in Summerville, Georgia
who allege their water supply was contaminated by PFAS discharged
from a textile mill.
3M Company operates as a technology company worldwide. The
company's Industrial segment offers tapes, abrasives, adhesives,
ceramics, sealants, specialty materials, purification products,
closure systems, acoustic systems products, automotive components,
abrasion-resistant films, and paint finishing and detailing
products. The company was founded in 1902 and is headquartered in
St. Paul, Minnesota.
ANHEUSER-BUSCH LLC: Bid to Stay or Transfer Browning Suit Denied
----------------------------------------------------------------
In the case, MEGAN BROWNING, et al., Plaintiffs v. ANHEUSER-BUSCH,
LLC, Defendant, Case No. 20-cv-00889-SRB (W.D. Mo.), Judge Stephen
R. Bough of the U.S. District Court for the Western District of
Missouri, Western Division, denied the Defendant's Motion to Stay
and Transfer to the Eastern District of Missouri Under 28 U.S.C.
Section 1404.
Plaintiffs Megan Browning and Allen Kesselring filed the class
action suit against AB in the Western District of Missouri. They
assert various claims arising out of AB's alleged false and
misleading advertising and packaging of certain beverages. AB now
moves to transfer the case to the Eastern District of Missouri
pursuant to 28 U.S.C. Section 1404. The Plaintiffs oppose the
motion.
Discussion
A. Balance of Convenience
Regarding the convenience of the parties and witnesses, Browning
resides in the Western District and the Plaintiffs chose to file
suit in the Western District. While Kesselring resides in the
Eastern District, his choice of the Western District creates a
presumption that it is convenient for him. Conversely, AB and some
of its employee-witnesses reside in the Eastern District. However,
a significant number of employee-witnesses also reside in New York.
While AB argues its New York employees could work at its
headquarters in St. Louis, the same work displacement would be felt
on Browning should transfer occur. Judge Bough finds that the
convenience of the parties and witnesses factor is neutral and thus
does not weigh in favor of transfer.
Regarding the accessibility of records, the parties agree most
records will be electronic, making the accessibility of records and
associated costs independent of the case's location. Any
originals, should they be needed, will be found in both districts
and New York. As for the location where the complained-of conduct
occurred, Browning purchased the Products and the alleged
misrepresentation occurred in the Western District. However, some
of AB's conduct, including its advertisement and packaging
decisions, likely occurred in the Eastern District and Kesselring
purchased the Products in the Eastern District. The Judge finds
this factor favors both forums. Overall, the convenience factors
weigh in favor of both forums and do not strongly support
transfer.
B. The Interest of Justice
On balance, the interests of justice in the case do not strongly
favor transfer, the Judge holds. Regarding judicial economy, the
case is already before the Court and a pending motion to dismiss is
ripe for ruling. Transfer will cause further delay and, contrary
to AB's assertion, the Court has the capacity to preside over the
case. The Plaintiffs' choice of forum is afforded considerable
deference.
AB accuses the Plaintiffs of forum shopping, but this argument is
unpersuasive given that significant conduct giving rise to the suit
occurred in the Western District and Browning resides in the
Western District. Finally, the Judge finds litigating in the
Western District would not be more costly than the Eastern
District. Geographically, the districts are close and any travel
costs and disruptions to work AB would save by transferring this
case would merely be shifted to the Plaintiffs. On balance, the
"interest of justice" factors favor the Western District.
Upon weighing the relevant factors, AB fails to show transfer is
proper.
Conclusion
Accordingly, Judge Bough denied AB's Motion to Stay and Transfer.
A full-text copy of the Court's May 4, 2021 Order is available at
https://tinyurl.com/a8sreuu2 from Leagle.com.
ANHEUSER-BUSCH: Angiano Appeals Ruling in Mislabeling Suit
----------------------------------------------------------
Plaintiffs DENISE ANGIANO, et al., filed an appeal from a court
ruling entered in the lawsuit entitled Denise Angiano, et al v.
Anheuser-Busch InBev Worldwide, et al., Case No.
2:21-cv-01879-PA-PVC, in the U.S. District Court for the Central
District of California, Los Angeles.
According to the complaint, the Plaintiffs are consumers who
purchased Beck's Non-Alcoholic Beer, a malt beverage distributed
and produced by the Defendant, believing that such products do not
contain any alcohol. As a result of Defendant's alleged deceptive
and misleading practice of labeling Beck's beer bottles and
packages as "non-alcoholic," without more, Plaintiffs and the Class
Members were induced to purchase Beck's beer, which is not devoid
of alcohol as advertised. The Plaintiffs claim that they relied on
Defendant's representations that Beck's beer was "non-alcoholic"
when making their purchases. If not for Defendant's deceptive and
misleading practices, Plaintiffs and the Class Members would not
have purchased Beck's beer, says the suit.
As reported in the Class Action Reporter on March 23, 2021, this
lawsuit was removed from the Superior Court of the State of
California for the County of Los Angeles to the United States
District Court for the Central District of California on Feb. 26,
2021. The Central District of California Court Clerk assigned Case
No.
20STCV45069 to the proceeding.
The appellate case is captioned as DENISE ANGIANO; CHARLEY
KARPINSKI, individually and on behalf of all others similarly
situated, Plaintiffs-Appellants v. ANHEUSER-BUSCH INBEV WORLDWIDE,
INC., a Delaware corporation; ANHEUSER-BUSCH, LLC, a Missouri
limited liability company, Defendants-Appellees, Case No. 21-55460,
in the U.S. Court of Appeals for the Ninth Circuit, filed on May 5,
2021.
The parties shall meet the following time schedule:
-- Appellant's Mediation Questionnaire due on May 12, 2021;
-- Appellant's opening brief and excerpts of record shall be
filed on July 2, 2021;
-- Appellee's answering brief and excerpts of record shall be
filed on August 2, 2021; and
-- The optional appellant's reply brief shall be filed and
served within 21 days of service of the appellee's brief. Failure
of the appellant to comply with the Time Schedule Order will result
in automatic dismissal of the appeal.[BN]
BLUEBIRD BIO: Rosen Named Lead Counsel in Leung Securities Suit
---------------------------------------------------------------
In the case, PETER LEUNG, Individually and On Behalf of All Others
Similarly Situated, Plaintiff v. BLUEBIRD BIO, INC., NICK LESCHLY,
and CHIP BAIRD, Defendants, Case No. 1:21-cv-10335-DJC (D. Mass.),
Judge Denise J. Casper of the U.S. District Court for the District
of Massachusetts appointed Jerry R. Hannah as the Lead Plaintiff
and his choice of counsel, The Rosen Law Firm, P.A., as the Lead
Counsel.
The securities class action has been filed against Defendant
bluebird bio, Inc. and certain of its officers alleging violations
of the federal securities laws.
Pursuant to the Private Securities Litigation Reform Act of 1995
("PSLRA"), 15 U.S.C. Section 78u-4(a)(3)(A)(i), on Feb. 12, 2021, a
notice was issued to potential class members of the action
informing them of their right to move to serve as lead plaintiff
within 60 days of the date of the issuance of said notice.
On April 13, 2021, Movant Jerry R. Hannah moved the Court to
appoint Movant as the Lead Plaintiff, and to approve the Movant's
selection of The Rosen Law Firm, P.A. as the Lead Counsel for the
Class.
The PSLRA provides, inter alia, that the most-adequate plaintiff to
serve as lead plaintiff is the person or group of persons that has
either filed a complaint or has made a motion in response to a
notice and has the largest financial interest in the relief sought
by the Class and satisfies the requirements of Fed. R. Civ. P. 23.
Finding that the Movant has the largest financial interest in the
action and prima facie satisfies the typicality and adequacy
requirements of Fed. R. Civ. P. 23. See U.S.C. Section
78u-4(a)(3)(B)(iii)(I), Judge Casper appointed the Movant as the
Lead Plaintiff for the class as they have the largest financial
interest in the litigation and otherwise satisfies the requirements
of Fed. R. Civ. P. 23. His choice of counsel is approved and
accordingly, The Rosen Law Firm, P.A. is appointed as the Lead
Counsel for the Class.
The Lead Counsel, after being appointed by the Court, will manage
the prosecution of the litigation. The Lead Counsel is to avoid
duplicative or unproductive activities and is vested by the Court
with the responsibilities that include, without limitation, the
following: (1) to prepare all pleadings; (2) to direct and
coordinate the briefing and arguing of motions in accordance with
the schedules set by the orders and rules of the Court; (3) to
initiate and direct discovery; (4) to prepare the case for trial;
and (5) to engage in settlement negotiations on behalf of the Lead
Plaintiff and the Class.
A full-text copy of the Court's May 4, 2021 Order is available at
https://tinyurl.com/xk4hzvwk from Leagle.com.
BP EXPLORATION: E.D. Louisiana Stays Pellegrin's BELO Complaint
---------------------------------------------------------------
In the case, BERTHA PELLEGRIN v. BP EXPLORATION & PRODUCTION INC.
ET AL., SECTION: "G" (5), Civil Action Case No. 19-2093 (E.D. La.),
Judge Nannette Jolivette Brown of the U.S. District Court for the
Eastern District of Louisiana grants the Plaintiff's Motion to
Stay.
In the litigation, Plaintiff Pellegrin seeks to recover damages
from Defendants BP Exploration and Production, Inc. and BP America
Production Co. for injuries she allegedly sustained while working
in the response effort to the Deepwater Horizon oil spill.
The case arises out of the Deepwater Horizon oil spill that
occurred on April 20, 2010. On Jan. 11, 2013, District Judge Carl
J. Barbier, who presided over the multidistrict litigation arising
out of the Deepwater Horizon incident, approved the Deepwater
Horizon Medical Benefits Class Action Settlement Agreement ("MSA").
The MSA includes a Back-End Litigation Option ("BELO") that allows
certain class members, including clean-up workers who follow
certain procedures set forth in the MSA, to sue BP for
later-manifested physical conditions.
The Plaintiff filed a BELO Complaint in the U.S. District Court for
the Eastern District of Louisiana on March 6, 2019. In the
Complaint, the Plaintiff alleges that she was exposed to "oil,
dispersants, and other harmful chemicals" while performing
"Response Activities" to the Deepwater Horizon oil spill as a
"Clean-up Worker." She claims that the alleged exposure resulted
in "permanent injuries and she was first diagnosed with Lichen
Simplex Chronicus on July 27, 2017."
On Sept. 12, 2019, the case was transferred from Judge Barbier
(Section "J" of the Court) and randomly reallotted to Chief Judge
Nannette Jolivette Brown (Section "G" of the Court). On March 22,
2021, the Plaintiff filed the instant motion to stay. In the
motion, the Plaintiff seeks to stay the case for 90 days. On April
1, 2021, BP filed an opposition to the instant motion.
The Plaintiff requests that the Court stays the instant case for a
period of 90 days because on Feb. 23, 2021, she filed a Notice of
Intent to Sue ("NOIS") raising a new claim of a Later Manifested
Medical Condition ("LPMC") arising out of the oil spill at issue in
the litigation. Specifically, the Plaintiff alleges a new medical
condition of Atopic Dermatitis diagnosed on Jan. 20, 2020.
According to the Plaintiff, the new claim must first be considered
by the Claims Administrator during the pre-suit process set forth
by the MSA. She contends that the presuit procedure will take at
least 90 days and if the claim is not resolved during the pre-suit
process, she is permitted under the MSA to bring the new claim in
the instant litigation. Therefore, the Plaintiff requests a stay
to effectively adjudicate all claims involving the parties to the
instant action.
In opposition to the instant motion, BP argues that a stay is
"inappropriate and futile" because the Plaintiff's NOIS is untimely
under the MSA, meaning that her new medical claim "will not survive
the claims administration process" or the "120-day process for new
BELO lawsuits." According to BP, the Plaintiff will suffer no
hardship from a denial of the stay request.
Judge Brown finds that the Plaintiff has shown that a stay of the
matter is warranted. Under the MSA, claimants are only allowed to
file a BELO action after the Claims Administrator determines that
the NOIS complies with the terms of the MSA and after BP declines
to mediate the claim. The Plaintiff submitted a new NOIS to the
Claims Administrator on Feb. 23, 2021. The Claims Administrator
issued a notice of BP's election not to mediate on April 23, 2021.
The notice issued by the Claims Administrator states that the
Plaintiff must file any BELO lawsuit within six months of the date
of the notice pursuant to the terms of the MSA.
Allowing the case to proceed before the Plaintiff is afforded an
opportunity to amend the complaint could result in duplicative
litigation, and it is unclear whether the Plaintiff would be barred
from raising these claims in subsequent litigation. Therefore, the
Judge finds that a stay would promote judicial economy and
efficient administration of the case.
BP argues that a stay is not warranted because the Plaintiff's
second NOIS was untimely and will be denied by the MSA Claims
Administrator. However, the notice issued by the MSA Claims
Administrator in response to the NOIS filed by the Plaintiff on
Feb. 23, 2021 states that she may proceed to file a BELO lawsuit
for the claim based on the LPMC of Atopic Dermatitis.
For these reasons, Judge Brown exercises discretion and stays the
matter for 90 days. Accordingly, the Plaintiff's Motion to Stay is
granted. The matter is stayed and administratively closed for a
period of 90 days from the date of the Order. Upon the expiration
of 90 days from the date of the Order, the parties are to provide
an update to the Court regarding the status of the Plaintiff's BELO
lawsuit. At that time, the parties may also request a status
conference with the Court.
A full-text copy of the Court's May 4, 2021 Order is available at
https://tinyurl.com/9w5rfhku from Leagle.com.
CALIFORNIA: Redd Appeals Dismissal of Prisoner Civil Rights Suit
----------------------------------------------------------------
Plaintiff STEPHEN MORELAND REDD filed an appeal from a court ruling
entered in the lawsuit entitled Stephen Redd v. Tani
Cantil-Sakauye, et al., Case No. 2:16-cv-01540-DMG-PJ, in the U.S.
District Court for the Central District of California, Los
Angeles.
According to the complaint, Plaintiff is a former Los Angeles
County Sheriff's Deputy who committed a series of commercial armed
robberies. During one such robbery at a grocery store in Yorba
Linda, California, he shot and killed a store employee, Timothy
McVeigh. A jury convicted Plaintiff of the first degree murder of
Timothy McVeigh, as well as the attempted murders of James
Shahbakhti and Chris Weidmann, two private security officers who
responded to a suspicious person call at another grocery store.
Plaintiff shot at Weidmann, who pretended to have been hit, and
succeeded in shooting Shahbakhti in the back as Shahbakhti was
running away. The jury also convicted Plaintiff of two counts of
second degree robbery, and two counts of second degree commercial
burglary. The jury found true the special circumstances that the
murder was committed while Plaintiff was engaged in the commission
of robbery and of burglary. The jury also found true the
allegations that Plaintiff personally used a firearm in the
commission of each of the seven crimes, and that Plaintiff, with
the specific intent to inflict such injury, personally inflicted
great bodily injury upon James Shahbakhti. Plaintiff had been
previously convicted of five serious or violent felonies at the
time of the offenses in question.
Following the penalty phase of the trial, the jury returned a
verdict of death. Plaintiff moved for a new trial and for
modification of the penalty to life imprisonment without the
possibility of parole. The trial court denied those motions and
sentenced him to death. The court also sentenced him to a term of
111 years to life in prison with respect to the other charges on
which he was convicted, and ordered restitution in the amount of
$10,000. The California Supreme Court affirmed the conviction and
sentence on direct appeal on April 29, 2010. Plaintiff's conviction
and sentence became final when his Petition for Writ of Certiorari
to the United States Supreme Court was denied on October 4, 2010.
The Plaintiff is now seeking a review of the Court's Order dated
March 31, 2021, granting Defendants' motion to dismiss with
prejudice Plaintiff's First Amended Class Action Complaint due to
failure to state a claim for relief.
The appellate case is captioned as Stephen Redd v. Tani
Cantil-Sakauye, et al., Case No. 21-55464, in the United States
Court of Appeals for the Ninth Circuit, filed on May 5, 2021.
The briefing schedule in the Appellate Case states that:
-- Appellant Stephen Moreland Redd Mediation Questionnaire was
due on May 12, 2021;
-- Appellant Stephen Moreland Redd opening brief is due on July
6, 2021;
-- Appellees Tani Gorre Cantil-Sakauye and Kimberly Menninger
answering brief is due on August 6, 2021; and
-- Appellant's optional reply brief is due 21 days after service
of the answering brief. [BN]
Plaintiff-Appellant STEPHEN MORELAND REDD, individually and on
behalf of all others similarly situated, is represented by:
Ronald A. McIntire, Esq.
Taylor Rivera Russell, Esq.
PERKINS COIE LLP
1888 Century Park East, Suite 1700
Los Angeles, CA 90067-1721
Telephone: (310) 788-3277
E-mail: RMcIntire@perkinscoie.com
TRussell@perkinscoie.com
- and -
Paul David Meyer, Esq.
ORRICK HERRINGTON & SUTCLIFFE LLP
405 Howard Street
San Francisco, CA 94105
Telephone: (415) 773-5806
E-mail: pmeyer@orrick.com
Defendants-Appellees TANI GORRE CANTIL-SAKAUYE, Chief Justice of
California; and KIMBERLY MENNINGER, Judge of the Superior Court of
California, County of Orange, are represented by:
Raymond A. Cardozo, Esq.
Brian Adair Sutherland, Esq.
REED SMITH LLP
101 Second Street, Suite 1800
San Francisco, CA 94105
Telephone: (415) 543-8700
E-mail: rcardozo@reedsmith.com
bsutherland@reedsmith.com
- and -
Kasey Curtis, Esq.
REED SMITH LLP
355 South Grand Avenue, Suite 2900
Los Angeles, CA 90071
Telephone: (213) 457-8089
E-mail: kcurtis@reedsmith.com
CARRINGTON MORTGAGE: Thomas-Lawson Appeals FDCPA Suit Dismissal
---------------------------------------------------------------
Plaintiffs Amy Thomas-Lawson, et al., filed an appeal from a court
ruling entered in the lawsuit entitled Amy Thomas-Lawson, et al v.
Carrington Mortgage Services, Case No. 2:20-cv-07301-ODW-E, in the
U.S. District Court for the Central District of California, Los
Angeles.
Plaintiffs Amy Thomas-Lawson, Brenda Boley, Miguel Padilla, and
William Green own homes located in Maryland, Texas, California, and
New York, respectively, each of which is subject to a mortgage
serviced by Defendant Carrington. The Defendant accepts mortgage
payments through its online website or over the phone, among other
methods of payment. Allegedly, Carrington charges a $5 convenience
fee to pay online, and it charges a $10 or $20 convenience fee to
pay via phone. The Plaintiffs bring this action against Carrington
on behalf of themselves and five putative classes (nationwide,
Maryland, Texas, California, and New York classes) to challenge the
legality of these "pay-to-pay" fees.
The Plaintiffs seek a review of the Court's Order dated April 5,
2021, granting Carrington's motion to dismiss in its entirety, and
dismissing Plaintiffs' claims with prejudice. The Plaintiffs'
motion to appoint interim lead counsel was also denied as moot.
The appellate case is captioned as Amy Thomas-Lawson, et al. v.
Carrington Mortgage Services, Case No. 21-55459, in the United
States Court of Appeals for the Ninth Circuit, filed on May 5,
2021.
The briefing schedule in the Appellate Case states that:
-- Appellants Brenda Boley, William Green, Miguel Padilla and
Amy Thomas-Lawson Mediation Questionnaire is due on May 12, 2021;
-- Appellants Brenda Boley, William Green, Miguel Padilla and
Amy Thomas-Lawson opening brief is due on July 6, 2021;
-- Appellee Carrington Mortgage Services, LLC answering brief is
due on August 2, 2021; and
-- Appellant's optional reply brief is due 21 days after service
of the answering brief.[BN]
Plaintiffs-Appellants AMY THOMAS-LAWSON, BRENDA BOLEY, MIGUEL
PADILLA, and WILLIAM GREEN, on behalf of themselves and all others
similarly situated, are represented by:
Hassan Zavareei, Esq.
TYCKO & ZAVAREEI LLP
1828 L Street NW, Suite 1000
Washington, DC 20036
Telephone: (202) 973-0900
E-mail: hzavareei@tzlegal.com
- and -
James Lawrence Kauffman, Esq.
BAILEY & GLASSER LLP
1055 Thomas Jefferson Street NW, Suite 540
Washington, DC 20007
Telephone: (202) 463-2101
E-mail: jkauffman@baileyglasser.com
- and -
Annick Persinger, Esq.
TYCKO AND ZAVAREEI LLP
1970 Broadway, Suite 1070
Oakland, CA 94612
Telephone: (510) 254-6808
E-mail: apersinger@tzlegal.com
Defendant-Appellee CARRINGTON MORTGAGE SERVICES, LLC is represented
by:
Fredrick S. Levin, Esq.
BUCKLEY LLP
100 Wilshire Boulevard, Suite 1000
Santa Monica, CA 90401
Telephone: (310) 424-3900
E-mail: flevin@buckleyfirm.com
CELLCOM ISRAEL: Service Disconnection Related Suit Underway
-----------------------------------------------------------
Cellcom Israel Ltd. said in its Form 20-F report filed with the
U.S. Securities and Exchange Commission on April 28, 2021, for the
fiscal year ended December 31, 2020, that the company continues to
defend a class action lawsuit related to service disconnection.
In January 2017, a motion to certify a lawsuit alleging the company
breached its obligation to disconnect customers within the time
frame stipulated by law as a class action, filed with the Central
District Court on February 2013, was partially approved with
respect to customers who requested to be disconnected from the
service and were not disconnected within the timeframe stipulated
by law, even if the company mistakenly thought the customer had
retracted its disconnection notice.
The main argument in the claim whereby the company is obligated to
disconnect the customer immediately upon request, without any
attempt to retain the customer, was rejected by the District Court.
In March 2019 the plaintiffs' appeal to the Supreme Court was also
dismissed, and the case was returned to the District Court. The
total amount claimed should it been approved as class action in its
entirety, was estimated by the plaintiffs at NIS 72 million.
Cellcom Israel Ltd., established in 1994, is a leading Israeli
communications group, providing a wide range of communications
services. Cellcom Israel is the largest Israeli cellular provider,
providing its approximately 2.805 million cellular subscribers (as
at September 30, 2017) with a broad range of services including
cellular telephony, roaming services for tourists in Israel and for
its subscribers abroad text and multimedia messaging, advanced
cellular content and data services and other value-added services
in the areas of music, video, mobile office etc., based on Cellcom
Israel's technologically advanced infrastructure.
CELLCOM ISRAEL: Waiting Time Related Purported Class Suit Ongoing
-----------------------------------------------------------------
Cellcom Israel Ltd. said in its Form 20-F report filed with the
U.S. Securities and Exchange Commission on April 28, 2021, for the
fiscal year ended December 31, 2020, that the company continues to
defend a purported class action suit related to the company's
violation of its license with regards to waiting times at the
company's call centers.
A purported class action filed with the Central District Court on
September 2017, alleging waiting times at the company's call
centers are in violation of its license's provisions.
At the Court's referral, the parties commenced mediation
procedures.
The total amount claimed should it be approved as class action, was
estimated by the plaintiff at NIS 88 million.
Cellcom Israel Ltd., established in 1994, is a leading Israeli
communications group, providing a wide range of communications
services. Cellcom Israel is the largest Israeli cellular provider,
providing its approximately 2.805 million cellular subscribers (as
at September 30, 2017) with a broad range of services including
cellular telephony, roaming services for tourists in Israel and for
its subscribers abroad text and multimedia messaging, advanced
cellular content and data services and other value-added services
in the areas of music, video, mobile office etc., based on Cellcom
Israel's technologically advanced infrastructure.
CIRCLE K: Court Denies Bid to Dismiss or Strike in Petterson Suit
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In the case, WILLIAM D. PETTERSON, on behalf of himself and all
others similarly situated, Plaintiff v. CIRCLE K STORES INC., an
Arizona Corporation, and DOES 1-10, Defendant, Case No.
21-cv-00237-H-BGS (S.D. Cal.), Judge Marilyn L. Huff of the U.S.
District Court for the Southern District of California denies the
Defendant's motion to dismiss the case or, in the alternative, to
strike the Plaintiff's class allegations.
On Dec. 4, 2020, Plaintiff Petterson filed a class action complaint
against Defendant Circle K Stores in the California Superior Court
for the County of San Diego.
During the last several years, the Defendant, an international
convenience store chain operating in San Diego, advertised that
customers who purchased two packs of certain cigarettes would
receive a discount, generally in the range of $1 to $1.50 per
purchase. The Plaintiff alleges that, in reliance on these
advertisements, he purchased several cartons of cigarettes from
Defendant, which comprise of 10 individual packs. He assumed that
the advertised two-pack discount also applied to the purchase of a
carton of cigarettes, which should have yielded him around $5 to
$7.50 in savings per carton.
But the Defendant did not apply this discount to carton purchases
unless specifically requested by the customer. Upon learning that
the discount was not applied to his purchases, the Plaintiff
brought the instant putative class action, alleging claims against
Defendant under the California Unfair Competition Law ("UCL"),
California Business & Professions Code Sections 17200, et seq., and
the California False Advertising Law ("FAL"), California Business &
Professions Code Sections 17500, et seq.
With the present motion, the Defendant moves the Court to dismiss
the Plaintiff's complaint or, in the alternative, to strike the
complaint's class allegations.
Discussion
I. Motion to Dismiss
In its motion to dismiss, the Defendant asks the Court to take
judicial notice of the following two examples of the advertisements
the Plaintiff discusses in his complaint. The Plaintiff does not
oppose this request. As a result, Judge Huff grants the
Defendant's request for judicial notice.
In his motion to dismiss, the Defendant argues that the Court
should dismiss the Plaintiff's complaint for failing to satisfy
Rule 9(b)'s heightened pleading requirements and for failing to
state a plausible claim for relief. The Plaintiff's complaint
alleges two claims against the Defendant, one under the UCL and one
under the FAL. The UCL prohibits "unfair competition," or "any
unlawful, unfair or fraudulent business act or practice and unfair,
deceptive, untrue or misleading advertising." Because the statute
is written in the disjunctive, it is violated where a defendant's
acts or practice is (1) unlawful, (2) unfair, (3) fraudulent, or
(4) in violation of the FAL." The "FAL prohibits any unfair,
deceptive, untrue or misleading advertising."
Judge Huff declines to dismiss the Plaintiff's complaint pursuant
to Rule 9(b). She holds that the Plaintiff alleges his claims with
sufficient particularity. She also declines to dismiss the
Plaintiff's complaint pursuant to Rule 12(b)(6). The Defendant
fails to sustain its burden to demonstrate that Plaintiff's FAL
claim was insufficiently pled. Accordingly, the Judge denies the
Defendant's motion to dismiss in its entirety.
II. Motion to Strike
In the alternative, the Defendant moves to strike the Plaintiff's
class allegations from the complaint. As the Defendant reasons,
the Plaintiff's proposed class is incapable of being ascertained,
is overbroad and unmanageable, and necessarily involves numerous
factual determinations that defeat both commonality and typicality.
The Plaintiff conversely argues that it sufficiently pled its
class allegations and that the Defendant's motion is premature.
Judge Huff denies the Defendant's motion to strike. She finds that
the motion is primarily predicated on factual arguments that seek
to undermine the probability that the Plaintiff will eventually be
able to meet class certification requirements. Moreover, the
Defendant predominantly "relies on cases addressing whether a class
should be certified, not whether class action allegations in a
complaint should be stricken."
The Defendant also argues that some of the Plaintiff's class
allegations should be stricken as conclusory. The Judge finds the
argument unpersuasive because, "unless and until a court has
determined that a class cannot be certified, even conclusory class
allegations will survive a motion to strike."
In summary, the Defendant's arguments are better raised in an
opposition to class certification, rather than in a motion to
strike at the pleading stage. As a result, the Court denies
Defendant's motion to strike.
Conclusion
For the foregoing reasons, Judge Huff denies the Defendant's motion
to dismiss and alternative motion to strike. She orders the
Defendant to file an answer to the complaint within 30 days from
the date her Order is filed.
A full-text copy of the Court's May 4, 2021 Order is available at
https://tinyurl.com/3amhe5m5 from Leagle.com.
CISION US: Section 216(b) Notice in Mikityuk FLSA Class Suit Okayed
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In the case, ANATOLIY MIKITYUK, MITCH TALLUNGAN, and MICHAEL
ESQUIBEL, individually and on behalf of all others similarly
situated, Plaintiffs v. CISION US INC. and CISION LTD., Defendants,
Case No. 21-cv-510 (LJL) (S.D.N.Y.), Judge Lewis J. Liman of the
U.S. District Court for the Southern District of New York granted
the Plaintiffs' motion for Section 216(b) notice, subject to
modifications.
The Plaintiffs are former sales representatives ("SRs") of Cision
US, a global provider of public relations ("PR") software, media
distribution, media intelligence, and related professional
services. Until 2020, Cision US was a subsidiary of Cision Ltd., a
publicly-traded holding company. In January 2020, Cision Ltd.
ceased trading on the New York Stock Exchange and became a
subsidiary of Platinum Equity, a global investment firm; since then
it has been an indirect affiliate of Cision US.
The SRs perform non-exempt sales-related tasks, such as
communicating with clients and potential clients via phone and
email, researching sales leads, booking sales meetings with
prospective clients, and/or making sales of Cision products to
current and/or prospective clients. They perform these tasks
either from Cision's office or from another fixed location such as
from their homes.
Plaintiff Mikityuk was employed by Cision in its New York, New York
office from March 2019 to November 2019 as a Sales Development
Representative, helping Cision make sales of its products and
services, including sales of subscriptions to Cision's products and
services. Tallungan was employed by Cision in its Chicago,
Illinois office from January 2016 to March 2018 as a Business
Development Manager, performing similar services to those performed
by Mikityuk in New York. Esquibel was employed by Cision in its
Beltsville, Maryland office from August 2018 to June 2019 as a
Business Development Specialist, also with similar
responsibilities.
Each Plaintiff alleges he or she regularly worked more than 40
hours in a workweek but was not paid for all hours worked over 40
and did not receive proper overtime compensation. Each alleges
that it was difficult to meet Cision's job requirements without
working more than 40 hours per week and that Cision knew or should
have known that each Plaintiff regularly worked more than 40 hours
in a workweek but was not compensated for all overtime hours. The
Plaintiffs further allege that Cision failed to keep accurate
records of all the hours that Plaintiffs and other SRs worked and
followed a "corporate policy or practice of minimizing labor costs
by violating the air Labor Standards Act ("FLSA") and state wage
and hour laws."
The Plaintiffs bring claims on behalf of themselves "and other
similarly situated current and former Sales Representatives" for
failure to pay overtime in violation of FLSA, 29 U.S.C. Section
201, et seq. Each Plaintiff also brings individual and class
action claims under Federal Rule of Civil Procedure 23 on behalf of
similarly situated current and former SRs for violations of the
wage law in his respective state.
The Plaintiffs submit 22 declarations in support of their motion
for conditional certification. The declarations are from SRs in
the New York, New York; Chicago, Illinois; and the Beltsville,
Maryland offices. The declarations are substantially identical.
The main difference among them is the identification of the
supervisors for each of New York, Chicago, and Beltsville.
The action was commenced by filing of a complaint on Jan. 20, 2021.
The Plaintiffs filed their motion for conditional certification on
Feb. 16, 2021. They move for certification of a FLSA collective
comprised of SRs from all of Cision's offices in the United States.
They also seek approval of their proposed notice and consent form
and for their plan of distribution.
The Defendants object to the motion only in part. They agree that
the Plaintiffs have satisfied the standards for conditional
certification with respect to SRs in the New York, Chicago, and
Beltsville offices. However, they argue that the collective should
be limited to SRs only in those offices. They also object to
portions of the notice and consent form and submit their own
proposed forms of notice and consent. Finally, they object to
portions of the plan of distribution.
Discussion
A. Plaintiffs' motion for conditional certification
The Plaintiffs move the Court to certify conditionally a FLSA
collective and to authorize the issuance of notice to a collective
including "inside salespeople, or Sales Representatives." The
proposed collective would include all individuals who held one of
seventeen different titles and also those serving in "other similar
roles, however variously titled, for Cision nationwide at any time
between Sept. 21, 2017 and the present."
The Defendants do not contest the issuance of a Section 216(b)
notice as a general matter, instead opposing the collective only to
the extent that it would be sent to SRs nationwide, rather than
only to SRs working in the same offices as the named Plaintiffs.
They also argue that the language "other similar roles" is vague
and should not be included in the notice.
Judge Liman opines that the Plaintiffs' showing is sufficient to
support a nationwide conditional class. The alleged violations
stem from a nationwide practice that put pressure on both managers
and non-exempt employees nationwide to underreport or not report
overtime hours. The Plaintiffs and declarants have testified that
managers tied their actions in some instances to an overarching
policy by the Defendant of minimizing the accrual of overtime.
There is no evidence that the three offices involved were
idiosyncratic in their compensation practices, nor is there any
basis to infer that if the policies resulted in the underreporting
or failure to report in Chicago, New York, and Maryland, that the
same pressures and the same underreporting did not also occur
elsewhere with the knowledge of Cision.
The Judge holds that he would risk prejudging the merits of these
allegations for him to conclude at this preliminary stage that each
of these managers was acting in an 'errant' or 'rogue' fashion. If
further discovery reveals that the Plaintiffs' managers were acting
aberrantly, the Defendants remains free to renew the argument by
bringing a motion to decertify the class following the close of
discovery.
B. Reference to "other similar roles, however variously titled"
The notice should be directed only to employees holding one of the
17 specific sales job titles. The language "other similar roles"
is impermissible vague and not helpful. It does not guide an
employee in knowing whether he or she is a potential member of the
collective action. It also is not sufficiently specific to inform
the Defendants of the identifying information they should provide
to the Plaintiffs so they can arrange for notice to be sent. There
is no basis on this record to believe that the list of 17 titles
based on the Plaintiffs' investigation is anything less than
exhaustive or that there are any job titles that are omitted.
C. Form of Notice and Consent
Judge Liman opines that the form of notice submitted by the
Plaintiffs with their Supplemental Declaration is preferable
because it is easier to read. That said, edits to that document
are needed. The Judge notes the following:
a. The notice should indicate only once, but in all capital
language, that the document is a court-authorized notice.
b. With respect to the alleged conflation of the two separate
Defendants, the Plaintiffs' revised notice should be further
revised to state in the first bullet point: A lawsuit was brought
by three former employees of Cision US Inc. and Cision Ltd.
(together, 'Cision') who claim that their employer failed to pay
them and other salespeople overtime for the hours they worked over
40 in a workweek as required by the Fair Labor Standards Act
('FLSA').
c. The notice should state that additional opt-in plaintiffs
have joined the case.
d. The Plaintiffs' revised notice would state: "While this
suit is pending, you may be asked to provide documents or
information relating to your employment, or otherwise participate
in written discovery, depositions, and/or in a trial of this matter
in the United States District Court for the Southern District of
New York." The Defendants' proposed notice would state: "While
this lawsuit is pending, as part of the discovery process, you may
have your deposition taken, you may have to respond to written
questions or have to produce documents, and you may also have to
testify at trial. For this reason, if you join the lawsuit, you
should preserve all documents relating to the Defendants currently
in your possession. Any trial or other court proceedings would
take place at the federal courthouse for the Southern District of
New York in Manhattan." The notice should state: "While this suit
is pending, you may be required to provide documents or information
relating to your employment, or otherwise participate in written
discovery, depositions, and/or in a trial of this matter in the
United States District Court for the Southern District of New York.
For this reason, you should preserve all documents relating to
your employment by Cision."
e. The Court accepts the language in the Plaintiffs' revised
notice informing potential collective members of the fact that, if
they join the lawsuit, they will be bound by any ruling, monetary
settlement, or judgment, whether favorable or unfavorable.
f. The language in the Plaintiff's revised notice informing
potential plaintiffs of their right to use counsel of their choice
if they join the action is acceptable as is the language in the
revised notice that indicates the Court has discretion with respect
to the amount of any attorneys fee award with the exception that
the notice should indicate plaintiffs also have the right to
proceed pro se.
g. The Revised Notice should simply indicate that the
Defendants deny the allegations and identify the lawyers whom they
have retained to identify them in the lawsuit. It should also
indicate that the Court has not decided who is right or who is
wrong. The notice should track the language approved by the Court
in Huang v. Shanghai City Corp., 2020 WL 5849099 (S.D.N.Y. Oct. 1,
2020).
h. The Revised Notice should simply indicate that the
Defendants deny the allegations and identify the lawyers whom they
have retained to identify them in the lawsuit. It should also
indicate that the Court has not decided who is right or who is
wrong. There is no need for the incomplete description of
Defendants' defenses. The notice should track the language approved
by this Court in Shanghai City Corp., 2020 WL 5849099, at *17.
i. The Court will include language that "It is a violation of
federal law to in any manner retaliate against you for
participating in this lawsuit."
j. Finally, the notice should include the language proposed
by Defendants regarding the limitations period, stating: "The Court
may ultimately determine that you do not have a claim if you were
not employed by Defendants within the applicable two-year period
before you joined this lawsuit."
D. Method of Distribution
Without discounting the risk that distribution by email can result
in the notice being "more broadly circulated than the parties
intended," Judge Liman Court agrees that given the reality of
communications today, email notification is more effective at
notifying potential opt-in plaintiffs than mailed notice alone. He
reaches a different conclusion with respect to text messages. The
Plaintiffs make no argument that the turnover is such that text
messaging is required or appropriate.
E. Consent Forms
The parties raise two issues with respect to the consent forms: The
language of the forms and the person to whom recipients of the
notice should mail their completed forms.
With respect to the language of the consent forms, Judge Liman
rules that the language regarding "any separate or subsequent
actions" should be stricken. He will not add the language
requested by the Defendants that requires persons opting into the
collective action to attest that they are eligible to join the
lawsuit and that they "worked over 40 hours in a workweek while
being employed by the Defendants without being paid overtime for
time worked beyond 40 hours in a workweek." It is also sufficient
that the consent form indicate that the Plaintiffs' counsel will
represent persons who opt in and do not have their own counsel
without singling out any particular aspects of the representation.
As to the mailing to the counsel, the Judge notes it is more
consistent with the statute to have opt-in Plaintiffs send their
consent forms to the Clerk of Court oo the person to whom the forms
are addressed and whose receipt of them has legal significance.
Accordingly, opt-in Plaintiffs should send their consent forms to
the Clerk of Court. The notice should be updated to reflect this
change.
Lastly, the Judge is convinced that the modern-day volume of
information to which even ordinary citizens are subject makes such
a notice helpful and mitigates the risk that it will be perceived
as badgering. Given that "notice under the FLSA is intended to
inform as many potential plaintiffs as possible of the collective
action and their right to opt in," he permits such a reminder
notice provided (1) that the Plaintiffs' counsel meet and confer
with the Defendants about its content; and (2) the Plaintiffs'
counsel submit the proposed language to the Court for its approval
one week before mailing. The Defendants' concern can be addressed
by requiring that the reminder notice "include language
specifically stating that the court neither encourages nor
discourages participation in the lawsuit."
Conclusion
For the foregoing reasons, Judge Liman granted the Plaintiffs'
motion for Section 216(b) notice subject to the modifications
outlined. The Plaintiffs will submit a revised form of notice and
a revised consent form to the Court for its approval within two
weeks of the date of the Order. The Plaintiffs' request for
reminder notice.
A full-text copy of the Court's May 4, 2021 Opinion & Order is
available at https://tinyurl.com/r7u83fsw from Leagle.com.
CORE CIVIC: Joint Status Report in Martinez Class Suit Due June 4
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In the case, MATTHEW MARTINEZ, et al., Petitioners v. CORE CIVIC,
et al., Respondents, No. CV 20-1309 WJ/CG (D.N.M.), Judge Carmen E.
Garza of the U.S. District Court for the District of New Mexico
ordered the parties file a Joint Status Report by no later than
June 4, 2021.
The matter is before the Court upon review of the record. It
appears the parties have completed briefing on three separate
filings: (1) the Petitioners' Class Action Petition for Writ of
Habeas Corpus and Injunctive and Declaratory Relief Pursuant to 28
U.S.C. Section 2241, 42 U.S.C. Section 1983, (Doc. 1); (2) the
Petitioners' Motion for Class Certification; and (3) Respondent
Warden Luis Rosa, Jr.'s Motion to Dismiss.
Judge Garza ordered the parties file a Joint Status Report by no
later than June 4, 2021, updating the Court on the following: (i)
the status of the foregoing filings; (ii) the status of any other
motions the parties intend to file at this time; (iii) the status
of the case generally; (iv) whether, and to what extent, the
parties intend to engage in discovery; and (v) the status of any
settlement negotiations.
A full-text copy of the Court's May 4, 2021 Order is available at
https://tinyurl.com/nhz7978p from Leagle.com.
FAST ENTERPRISES: Court Denies Bid to Intervene in Cahoo Class Suit
-------------------------------------------------------------------
In the case, PATTI JO CAHOO, KRISTEN MENDYK, KHADIJA COLE, HYON
PAK, and MICHELLE DAVISON, Plaintiffs v. FAST ENTERPRISES LLC, CSG
GOVERNMENT SOLUTIONS, STEPHEN GESKEY, SHEMIN BLUNDELL, DORIS
MITCHELL, DEBRA SINGLETON, and SHARON MOFFET-MASSEY, Defendants,
Case No. 17-10657 (E.D. Mich.), Judge David M. Lawson of the U.S.
District Court for the Eastern District of Michigan, Southern
Division, denies the motion of Michael Bell, Carmelita Colvin, and
Suzette Marie Heathcote to intervene as Plaintiffs.
Three individuals, Michael Bell, Carmelita Colvin, and Suzette
Marie Heathcote, have moved to intervene as plaintiffs in the case.
They each allege that they were victimized by the Defendants'
development and application of the automated fraud detection and
adjudication system known as the Michigan Integrated Data Automated
System, or MiDAS. These individuals believe that they can address
the shortcomings that the Court identified when it denied the
motion for class certification. And each intends to revive the
attempt to certify a class, which they seek to represent.
The Plaintiffs filed a putative class action complaint for damages
on March 2, 2017. The defendants moved to dismiss the complaint,
and on March 2, 2018, the Court dismissed several individual
defendants and several counts of the complaint, leaving intact the
plaintiffs' due process, equal protection, and Fourth Amendment
claims against the remaining defendants. The State defendants
appealed the decision arguing qualified immunity, and on January 3,
2019, the Sixth Circuit affirmed the Court's decision with respect
to the plaintiffs' due process claim and reversed the decision as
to the plaintiffs' equal protection and Fourth Amendment claims.
The parties then agreed to dismiss the equal protection and Fourth
Amendment claims against all defendants and later agreed to dismiss
defendant McMurtry.
The Plaintiffs maintained a claim for a violation of procedural due
process against Defendants FAST, CSG, and State Defendants Steven
Geskey, Shemin Blundell, Doris Mitchell, Debra Singleton, and
Sharon Moffett-Massey. The parties engaged in another round of
motion practice beginning in the spring of 2020. On April 24,
2020, the Plaintiffs moved for class certification. The corporate
Defendants then moved to dismiss the complaint, raising
jurisdiction and real-party-in interest arguments, in early May
2020. In late July, all parties filed motions for summary
judgment.
The Court granted Defendant SAS' motion and dismissed the complaint
against it without prejudice for want of subject matter
jurisdiction on Aug. 11, 2020. As the parties were exchanging
their summary judgment briefs, the Plaintiffs' counsel filed two
motions to intervene in hopes of bolstering their motion for class
certification, one on behalf of Michael Bell followed by another on
behalf of Carmelita Colvin. The Court later denied FAST's and
CSG's motions to dismiss on Dec. 21, 2020. The following day, the
Court denied the Plaintiffs' motion for class certification. And
on March 25, 2021, the Court denied the motions for summary
judgment except as to individual State defendants Blundell,
Mitchell, and Singleton, who were dismissed from the lawsuit. The
Court also dismissed the case as to Plaintiff Hyon Pak.
When the Court denied the Plaintiffs' motion for class
certification, it found that the Plaintiffs satisfied the first two
elements of Federal Rule of Civil Procedure 23(a): numerosity and
commonality. It also identified "one group of potential plaintiffs
whose claims may benefit from class treatment: Those individuals
adjudicated guilty of fraud solely because they did not return
their questionnaires." However, the Court ultimately found that
the class representatives failed to establish Rule 23(a)'s
typicality and adequacy of representation elements and Rule
23(b)(3)'s predominance and superiority elements.
The Court also observed that the Plaintiffs produced strong
evidence that MiDAS' builtin procedures failed to satisfy
rudimentary due process requirements and concluded that the
Plaintiffs met the commonality requirement because "a decision on
the Defendants' responsibility for creating and launching a fraud
adjudication system that foreseeably would deny claimants notice
and a proper determination of intent-based liability without an
opportunity to be heard in their defense is central to the validity
of each of the claims and could be decided in one stroke."
However, it found that the Plaintiffs failed to satisfy the
typicality and adequacy of representation elements because Cahoo,
Cole, and Mendyk each filed for bankruptcy and were susceptible to
unique defenses that threatened to dominate the litigation, and the
individual circumstances of Davison and Pak varied significantly.
Moreover, none of the Plaintiffs actually alleged that they saw the
notices, and they relied on substantially different facts to
support their arguments that the UIA's manner of notice was
deficient.
The Court also found that the Plaintiffs failed to meet Rule
23(b)(3)'s preponderance and superiority elements. It observed
that the "case is complex, and like MiDAS itself, involves many
moving pieces and individualized considerations that are outcome
determinative." It also found "the management of the class
impracticable" due to the "individualized outcome-determinative
considerations, and because the Plaintiffs have not identified a
single course of wrongful conduct that ties every claim together."
Alternatively, the Plaintiffs proposed certifying issue classes
under Rule 23(c)(4) based on the "method of notice, content of
notice, failure to provide for a meaningful hearing and failure to
provide an impartial process." But the Court rejected that request
because those proposed subclasses called for "fact-intensive
inquiries that still would fail the preponderance and commonality
requirements of Rule 23(a)(2) and (b)(3), as the resolution of
those issues would depend on whether the individuals received
actual notice."
In January 2021, Bell and Colvin filed supplements to their motions
to intervene in which they expressed an intention to file a renewed
motion for class certification. Suzette Heathcote, represented by
a different attorney, moved to intervene later that month.
Judge Lawson states that the purpose for which the intervention is
sought must be considered in terms of the "importance of the legal
interests asserted." The proposed intervenors identify twin
purposes: Renewing the class certification motion and pursuing
their individual claims against these Defendants.
For both permission intervention and intervention by right, courts
evaluate the timeliness of a motion to intervene "in the context of
all relevant circumstances by consideration of the following five
factors: (1) the point to which the suit has progressed; (2) the
purpose for which intervention is sought; (3) the length of time
preceding the application during which the proposed intervenors
knew or should have known of their interest in the case; (4) the
prejudice to the original parties due to the proposed intervenors'
failure to promptly intervene after they knew or reasonably should
have known of their interest in the case; and (5) the existence of
unusual circumstances militating against or in favor of
intervention."
First, although the proposed intervenors argue at length that their
claims are typical and they are adequate class representatives,
Judge Lawson opines that it is highly unlikely that they will
succeed on a renewed motion for class certification. Intervention
is not necessary for the proposed intervenors to pursue their
individual claims. They "do not explain how, if at all, resolution
of the current Plaintiff's claims will affect them or how their
interests are related to the individual claims at issue." They
have their separate, stand-alone claim for damages arising from
their individual wrongful fraud adjudications, which they can
pursue regardless of the ultimate disposition of the claims of the
named parties.
Second, the Judge opines that Bell and Colvin should have known of
their interest in the case well before they moved to intervene.
Heathcote stands on firmer footing, however. Heathcote maintains
that she had no reason to take any action to protect her interests
until the Court denied the class certification motion, since she
had no reason to know that the Plaintiffs were inadequate class
representatives. Once she discovered this defect, she moved to
intervene within one month of the Court's order.
Third, with respect to prejudice, Judge Lawson holds that the
prejudice imposed by adding new parties this late in the case is a
heavy counterweight to the intervenors' motions. Forcing the
Defendants to conduct more discovery and relitigate dispositive
motions would cause substantial prejudice. And allowing
intervention would derail the case and would require significant
and costly discovery to essentially relitigate the case after four
years of contentious litigation.
Fourth, the parties have not also identified any "unusual
circumstances militating against or in favor of intervention."
Considering all the factors, however, leads to the ineluctable
conclusion that the intervention motions are not timely.
Fifth, the Judge holds that the named Plaintiffs will be unable to
represent the interests of the intervenors on their individual
claims. But they would not be expected to look out for the
separate claims of individuals who are capable of filing their own
actions. In that context, there is no possibility that the
proposed intervenors' interests in their individual claims would be
impaired absent intervention.
Finally, the more lenient requirements for permissive intervention
still require a timely motion. The proposed intervenors have not
met that requisite.
On balance, the relevant factors weigh against allowing the moving
parties to intervene in the pending case. Accordingly, Judge
Lawson denied the motions to intervene.
A full-text copy of the Court's May 4, 2021 Opinion & Order is
available at https://tinyurl.com/v25ahdxs from Leagle.com.
FCA US: Bid to Dismiss Myslivecek Suit Denied as Moot W/o Prejudice
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In the case, Dean Myslivecek, et al., Plaintiffs v. FCA US LLC,
Defendant, Case No. 21-10346 (E.D. Mich.), Judge Judith E. Levy of
the U.S. District Court for the Eastern District of Michigan,
Southern Division, denies without prejudice as moot the Defendant's
motion to dismiss the class action complaint.
Plaintiff Myslivecek filed an initial putative class action
complaint on Feb. 16, 2021, against Defendant FCA. On April 12,
2021, the Defendant filed a motion to dismiss the class action
complaint under Federal Rules of Civil Procedure 12(b)(1) and
12(b)(6).
Plaintiff Myslivecek then filed an amended complaint exactly 21
days later, on May 3, 2021. His amended complaint added four new
named Plaintiffs: Paul Caputo, Christopher Chow, Michael Busovicki,
and Kevin Schaffner. No additional Defendants were added.
Without expressing any view as to whether the amended complaint
cures the purported deficiencies claimed in the motion to dismiss,
Judge Levy denies without prejudice as moot the Defendant's motion
to dismiss in light of the filing of the amended complaint. An
amended complaint supersedes all prior complaints. It follows that
motions directed at the superseded pleading, such as the
Defendant's motion, "generally are to be denied as moot."
The Plaintiffs filed their first amended complaint by right. The
first amended complaint is complete in itself and makes no
reference to the initial complaint. Accordingly, the Defendant is
directed to file a responsive pleading to the amended complaint
within 30 days of the Order.
A full-text copy of the Court's May 4, 2021 Order is available at
https://tinyurl.com/45p6m493 from Leagle.com.
FCA US: Court Partly Grants Bid to Dismiss Green Class Suit
-----------------------------------------------------------
In the case, GABRIEL GREEN and VALERIE HALL-GREEN, individually and
on behalf of all others similarly situated, Plaintiffs v. FCA US
LLC, Defendant, Case No. 20-13079 (E.D. Mich.), Judge George Caram
Steeh of the U.S. District Court for the Eastern District of
Michigan, Southern Division, granted in part and denied in part the
Defendant's motion to dismiss Plaintiff's amended complaint.
In their class-action amended complaint, Gabriel Green and Valerie
Hall-Green allege that the Defendant failed to provide them with
adequate notice of their right to continued heath care coverage
under the Consolidated Omnibus Budget Reconciliation Act of 1985
("COBRA"). Gabriel Green was employed by Chrysler (FCA) until his
termination in 2019. As an employee, he received medical, dental,
and vision insurance for himself and his family through the FCA US
LLC Health Care Benefits Plan for Represented Employees. The
Defendant is the plan sponsor and plan administrator.
After the "qualifying event" of his termination, Green and his
wife, Valerie Hall Green, received a COBRA notice of continued
health care coverage from the Defendant. The Plaintiffs allege
that the notice was deficient because it failed to identify the
name and contact information of the plan administrator and because
it contained unnecessary warnings that confused and discouraged
them from electing continued health care coverage. Instead of
identifying Defendant as the plan administrator, the notice
references BenefitConnect as the "party responsible for COBRA
administration under your plan." According to the Plaintiffs, the
notice was not "written in a manner calculated to be understood by
the average plan participant" as required by 29 C.F.R. Section
2590.606-4.
The Plaintiffs assert that the notice includes "an ominous warning
suggesting that the submission of even 'incomplete' information
when electing COBRA may result in civil, or even criminal,
penalties." The notice also warns about the assessment of a "$50
penalty from the IRS for each failure to provide an accurate tax
identification number for a covered individual."
The Plaintiffs contend that these "threats and warnings" do not
belong in a COBRA notice and serve to discourage individuals from
enrolling in continued health care coverage. They allege that
based "at least in part" on the warnings, they did not enroll in
continued health care coverage and incurred out-of-pocket costs for
care for their son's serious medical condition as well as routine
visits. They bring the action on behalf of themselves and a
similarly situated class.
The Defendant seeks dismissal for lack of subject matter
jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1),
alleging that the Plaintiffs lack standing. Standing is a
jurisdictional requirement: An essential and unchanging part of the
case-or-controversy requirement of Article III.
Judge Steeh opines that although the Plaintiffs have standing to
pursue their notice claim based upon allegedly confusing statements
that discouraged them from electing coverage, they do not have
standing to challenge the allegedly incorrect identification of the
administrator of the plan. The Plaintiffs have failed to allege an
injury in fact. They have not alleged that they were harmed by the
alleged misinformation.
The Defendant argues that the Plaintiffs cannot plausibly state a
claim because the challenged language is neither confusing to the
average plan participant nor legally incorrect. The notice states,
however, that a participant could be subject to a penalty for
providing incomplete information, which is not a strictly accurate
statement of the law. The Defendant's arguments address the merits
of the Plaintiffs' claim and are more properly explored on a motion
for summary judgment.
Although perhaps a close call, the Judge holds that the Plaintiffs
have plausibly alleged that the COBRA notice is not written in a
manner calculated to be understood by the average plan participant
because it contains a misstatement of law. It remains to be
determined whether, under an objective standard, the notice is
sufficient to allow the average plan participant to make an
informed decision regarding whether to elect coverage.
Accordingly, the Defendant's motion is denied as to this claim.
Based on the foregoing, Judge Steeh granted in part and denied in
part the Defendant's motion to dismiss the Plaintiff's amended
complaint consistent with his opinion and order. He denied as moot
the Defendant's motion to dismiss the original complaint. The case
caption will be corrected to identify the Plaintiffs as Gabriel
Green and Valerie Hall-Green.
A full-text copy of the Court's May 4, 2021 Opinion & Order is
available at https://tinyurl.com/n79ptmvt from Leagle.com.
GREAT PERFORMANCES: Tossing of Robinson Claims v. Kensington Upheld
-------------------------------------------------------------------
In the case, BARRY ROBINSON ET AL., Plaintiffs v. GREAT
PERFORMANCES/ARTISTS AS WAITRESSES, INC., ET AL.,
Defendants-Appellants. GREAT PERFORMANCES/ARTISTS AS WAITRESSES,
INC., ET AL., Third-Party Plaintiffs-Appellants v. KENSINGTON
EVENTS, INC., Third-Party Defendant-Respondent, TOP SHELF STAFFING,
LLC, Third-Party Defendant, Index. No. 152469/18, Appeal No. 13622,
Case No. 2020-02572 (N.Y. App. Div.), the Appellate Division of the
Supreme Court of New York, First Department, affirmed without costs
the order of the Supreme Court, New York County (W. Franc Perry,
J.), entered on April 27, 2020, which granted Kensington's motion
to dismiss the third-party complaint as against it.
In the class action seeking to recover unpaid gratuities under New
York Labor Law (NYLL) Section 196-d, the Appellate Division is
asked to determine whether an employer has a right to contractual
indemnification from a third party for claims brought pursuant to
that statute. It finds that an employer does not have a right to
contractual indemnification for claims brought pursuant to NYLL
196-d because indemnification under that statute, whether
contractual or otherwise, is against public policy.
Defendants/third-party plaintiffs Great Performances/Artists as
Waitresses, Inc., Liz Beth Neumark, Dean Martinus and Linda Abbey
(together Great Performances) is a catering company that staffs its
events through third-party staffing agencies. Plaintiffs Barry
Robinson and Vincent Settecasi worked at various events catered by
Great Performances and were hired through staffing agencies.
Third-party defendant Kensington Events, Inc. provided Great
Performances with workers to staff its events.
In March 2018, the Plaintiffs commenced the class action pursuant
to NYLL 196-d to recover allegedly unlawfully retained tips and
gratuities owed to them and other similarly situated persons who
had performed work for Great Performances.
The Plaintiffs alleged that Great Performances failed to pass along
to workers a "Mandatory Charge" that it assessed its clients for
catered events. They claimed that such Mandatory Charges were not
charges for "food, beverages, lodging, or other specified
materials," that Great Performances never "disclaimed] that the
Mandatory Charge was not a gratuity and would not be distributed to
the staff" and that "reasonable patrons would have understood the
Mandatory Charge to be in the nature of a gratuity." The
Plaintiffs alleged that Great Performances "allowed its customers
to believe that the Mandatory Charge was a gratuity and that it was
going to be distributed to the waitstaff that worked the catered
event" but that it improperly "retained that charge for itself."
Great Performances moved to dismiss the complaint, contending that
it was not plaintiffs' "employer" for purposes of NYLL 196-d. The
Supreme Court denied the motion, finding that the complaint
adequately pleaded the requisite control over the Plaintiffs and
the putative class members by Great Performances to substantiate an
employment relationship.
Thereafter, Great Performances commenced a third-party action
against Kensington, which sought contractual indemnification for
the Plaintiffs' claims brought pursuant to the NYLL. It relied on
the indemnification clause in the vendor agreement it maintained
with Kensington.
Kensington moved to dismiss the third-party complaint, contending
that employers have no right to indemnification for claims brought
under NYLL 196-d, whether contractual or otherwise. In opposition,
Great Performances argued that the indemnification clause in the
vendor agreement plainly required Kensington to indemnify it for
plaintiffs' claims brought pursuant to the NYLL. It also argued
that Kensington's motion should be denied as premature because a
determination had not yet been made that Great Performances was the
Plaintiffs' "employer" for purposes of NYLL 196-d and that if the
court ultimately determined that Great Performances was not the
Plaintiffs' "employer," Great Performances could seek contractual
indemnification from Kensington for the defense costs it incurred
in the action.
The Supreme Court granted Kensington's motion and dismissed the
third-party complaint as against it, noting that, "according to
both federal and state case law, the rule is that there is no right
of contribution or indemnification for employers found liable under
the New York Labor Law provisions." It further held that "where
employers can contract away their obligations under the statutes,
enacted to protect employees, it would undermine an employer's
willingness to comply with their obligations under those laws" and
that such "principle is applicable even where the right to
indemnification is set forth clearly in an agreement between the
parties."
The Appellate Division agrees and finds that Great Performances'
third-party complaint was properly dismissed as against Kensington
on the ground that an employer has no right to contractual
indemnification from a third party for claims brought pursuant to
NYLL 196-d because indemnification under that statute, whether
contractual or otherwise, is against public policy. Neither the
Court of Appeals nor this Court has addressed the issue of whether
an employer is entitled to contractual indemnification from a third
party for claims brought pursuant to NYLL 196-d. However, the
issue of an employer's right to indemnification, both contractual
and common law, for claims brought pursuant to other sections of
the NYLL and similar federal statutes has been addressed on the
federal level and those cases are instructive.
Great Performances' assertion that dismissal of its third-party
complaint as against Kensington is premature because no finding has
yet been made as to whether Great Performances is the Plaintiffs'
"employer" for purposes of the NYLL is without merit as such a
finding is not relevant to our analysis. Even if it is determined
that Great Performances is not the Plaintiffs' employer pursuant to
the NYLL, and thus, could not be held liable to the Plaintiffs for
a violation of the statute, the Appellate Division finds that Great
Performances still would not be entitled to contractual
indemnification from Kensington for the defense costs it incurred
in the action.
As an initial matter, it could not have been the intent of the
parties that Great Performances would be entitled to
indemnification from Kensington for defense costs under these
particular circumstances, where it is alleged that Great
Performances, on its own and without any involvement from
Kensington, assessed its clients the "Mandatory Charge," kept the
funds it received for itself and did not pass any of the funds on
to Kensington.
Even if the parties had intended such a result, the Appellate
Division finds that it would be against public policy to allow
Great Performances to seek defense costs from Kensington pursuant
to an indemnification clause that it has held to be invalid and
against public policy. This is particularly true under these
circumstances, where it is undisputed that Kensington played no
role in Great Performances' alleged unlawful retention of tips and
gratuities and never received any portion of these tips and
gratuities.
Accordingly, the order of the Supreme Court, New York County (W.
Franc Perry, J.), entered on April 27, 2020, which granted
Kensington's motion to dismiss the third-party complaint as against
it, should be affirmed, without costs.
A full-text copy of the Court's May 4, 2021 Opinion is available at
https://tinyurl.com/hnu2yvxu from Leagle.com.
Ellenoff Grossman & Schole LLP, in New York City (Lois M. Traub --
ltraub@kanekessler.com -- of counsel), for Appellants.
Simon & Milner, Valley Stream (Eric M. Milner --
emilner@simonandmilner.com -- of counsel), for Respondents.
KERYX BIOPHARMACEUTICAL: Andreula Appeals Class Action Dismissal
-----------------------------------------------------------------
Plaintiffs JOHN ANDREULA, et al., filed an appeal from a court
ruling entered in the lawsuit entitled IN RE KERYX
BIOPHARMACEUTICALS, INC., Case No. 1-18-cv-01589, in the United
States District Court for the District of Delaware.
Lead Plaintiffs Abraham Kiswani and John Andreula filed this
putative class action on behalf of themselves and all other public
stockholders of Keryx Biopharmaceuticals, Inc. against Keryx
Biopharmaceuticals, Inc. and the members of Keryx's board of
directors. The case is a consolidation of three related actions:
Corwin v. Keryx Biopharmaceuticals, Inc., 18-cv-1589-CFC; Van Hulst
v. Keryx Biopharmaceuticals, Inc., 18-cv-1656-CFC; and Andreula v.
Keryx Biopharmaceuticals, Inc., 18-cv-1721-CFC. The case arises out
of the vote by Keryx stockholders in December 2018 to merge Keryx
into a subsidiary of Akebia Therapeutics, Inc., leaving Akebia as
the surviving parent entity.
The Plaintiffs allege in their Second Amended Complaint that an
October 2018 Schedule 14A Definitive Proxy Statement issued by
Keryx and Akebia to gain stockholder approval for the merger
contained material misleading statements and omissions. Plaintiffs
allege that as a result of those misleading statements and
omissions Defendants violated Section 14(a) of the Securities
Exchange Act of 1934 and the U.S. Securities and Exchange
Commission Rule 14a-9, and that the individual defendants are also
liable as "controlling persons" under Section 20(a) of the Exchange
Act.
The Plaintiffs now seek a review of the Court's Memorandum and
Order dated April 1, 2021, granting Defendants' motion to dismiss
the case for failure to state claim.
The appellate case is captioned as In re: Keryx Biopharmaceuticals,
Inc., Case No. 21-1870, in the United States Court of Appeals for
the Third Circuit, filed on May 5, 2021.[BN]
Plaintiffs-Appellants JOHN ANDREULA and ABRAHAM KISWANI,
individually and on behalf of all other similarly situated, are
represented by:
Richard A. Acocelli, Esq.
Kelly K. Morgan, Esq.
Michael A. Rogovin, Esq.
WEISS LAW LLP
1500 Broadway, 16th Floor
New York, NY 10036
Telephone: (212) 682-3025
E-mail: racocelli@weisslawllp.com
- and -
Ryan M. Ernst, Esq.
BIELLI & KLAUDER
1204 North King Street
Wilmington, DE 19801
Telephone: (302) 321-5411
E-mail: rernst@oelegal.com
- and -
Melissa A. Fortunato, Esq.
BRAGAR EAGEL & SQUIRE
810 Seventh Avenue, Suite 620
New York, NY 10019
Telephone: (802) 989-2947
E-mail: fortunato@bespc.com
Defendants-Appellees KERYX BIOPHARMACEUTICALS INC., KEVIN J.
CAMERON, MARK J. ENYEDY, STEVEN C. GILMAN, MICHAEL T. HEFFERNAN,
JODIE MORRISON, DANIEL P. REGAN, and MICHAEL ROGERS are represented
by:
Christian R. Reigstad, Esq.
ROPES & GRAY
1211 Avenue of the Americas
New York, NY 10036
Telephone: (212) 596-9726
E-mail: christian.reigstad@ropesgray.com
- and -
David E. Ross, Esq.
ROSS ARONSTAM & MORITZ
100 South West Street, Suite 400
Wilmington, DE 19801
Telephone: (302) 576-1600
E-mail: dross@ramllp.com
- and -
Peter L. Welsh, Esq.
ROPES & GRAY
1211 Avenue of the Americas
New York, NY 10036
Telephone: (212) 596-9104
E-mail: peter.welsh@ropesgray.com
KEYCORP: Court Narrows Claims in Stark's Amended Class Complaint
----------------------------------------------------------------
In the case, GREGORY STARK, et al., Plaintiffs v. KEYCORP, et al.,
Defendants, Case No. 1:20-CV-01254 (N.D. Ohio), Judge Pamela A.
Barker of the U.S. District Court for the Northern District of
Ohio, Eastern Division, granted in part and denied in part the
Motion to Dismiss the Amended Complaint filed by Defendants KeyCorp
and the Trust Oversight Committee.
Key is a bank-based financial services company headquartered in
Cleveland, Ohio. Through its subsidiaries, including KeyBank
National Association, Key provides a wide array of banking,
investment, and financial services across the country. In 1979,
Key established its 401(k) Savings Plan. The Plan is a defined
contribution plan, meaning participants' benefits are limited to
the value of their own investment accounts, which is determined by
the market performance of employee and employer contributions, less
expenses.
One of the fiduciaries of the Plan is Key, which is the plan
sponsor and administrator and has ultimate decision-making
authority with respect to the management and administration of the
Plan and the Plan's investments. Key also has designated the
Committee to assist with the administration of the Plan. The
Committee has the duty to select, monitor, evaluate, and modify the
Plan's investments, subject to the ultimate oversight and
discretion of Key. Key is responsible for appointing and removing
Committee members. The Committee and its members also are
fiduciaries of the Plan.
Alight Financial Solutions LLC and its predecessors provided
administrative services for the Plan from 2003 until 2020. It also
administers Key's pension and retiree medical plans and has played
an integral role in setting up and administering KeyBank's online
HR portal through which all employee benefits are managed, among
other things. The costs of providing these pension plan, medical
plan, and HR services are Key's responsibility and are not borne by
the Plan or its participants.
In addition to hiring administrative service providers, plans also
may hire a managed account provider that participants can elect to
manage their accounts for an additional fee. In 2014, the Plan
started using its recordkeeper, Alight, as an intermediary who then
employed Financial Engines as a sub-adviser.
Participants who elected to have their accounts managed by Alight
and Financial Engines were charged an additional fee based on the
value of their accounts. These fees were higher than what Alight
charged other plans for identical managed account services from
Financial Engines. The Plan's managed account service also was
more expensive than the same Financial Engines managed account
service offered by other recordkeepers as the intermediary, such as
Vanguard. Had Defendants paid closer attention to managed account
fees, they could have used this information to negotiate lower
rates for Financial Engines' managed account service. Instead,
they caused participants to pay an off-the-shelf price, which was
the highest fee for the managed account service offered by Alight.
Another one of the investment options offered by the Plan is the
KeyBank EB MaGIC Fund, a proprietary stable value fund maintained
by Key and is the Plan's only stable value fund option. During
the relevant timeframe, roughly a third of the MaGIC Fund has come
from investments from Plan participants, fluctuating between $115
million and $170 million. No other defined contribution plans with
over $2 billion in assets invested in the MaGIC Fund. Had the
Defendants conducted a proper marketplace investigation, they would
not have retained the MaGIC Fund as the Plan's stable value fund
option. Instead, Key improperly used the Plan to try to prop up
the MaGIC Fund.
From 2014 to 2018, the Plan has had between 21,000 and 29,000
participants and between $1.8 billion and $2.9 billion in assets,
making it one of the 300 largest defined contribution plans in the
United States out of more than 650,000. The Plaintiffs either
presently participate in the Plan or were participants in the Plan
at various points in time from 1998 to the present.
On June 4, 2020, Plaintiffs Gregory Stark, William Gaff, and
Michael Lewin filed a putative class action against the Defendants,
as well as John Does 1-30, alleging that the Defendants breached
several of their duties under the Employee Retirement Income
Security Act of 1974 ("ERISA") and seeking to represent a class of
all participants and beneficiaries of the Plan since June 2014.
After Defendants moved to dismiss the Complaint, the Plaintiffs
filed an Amended Complaint on Aug. 31, 2020, adding Plaintiffs
Kimberly Zahr and Dwight Kurek and new allegations against the
Defendants.
The Amended Complaint sets forth two counts under ERISA: (1) breach
of the fiduciary duties of prudence and loyalty against all
Defendants, and (2) breach of the duty to monitor fiduciaries
against Key. Although it is a single count, Count I of the Amended
Complaint contains several different theories regarding the
Defendants' alleged breaches based on the factual allegations.
Specifically, the Plaintiffs allege that the Defendants (1)
breached their duties of prudence and loyalty with respect to the
payment of excessive administrative fees, (2) breached their duty
of prudence with respect to the payment of excessive managed
account fees, and (3) breached their duties of prudence and loyalty
with respect to the decision to retain the MaGIC Fund as the Plan's
stable value fund option.
On Oct. 5, 2020, the Defendants filed a Motion to Dismiss the
Amended Complaint, seeking to dismiss all counts in the Amended
Complaint for failure to state a claim pursuant to Fed. R. Civ. P.
12(b)(6). The Plaintiffs filed a brief in opposition to the
Defendants' Motion to Dismiss on Nov. 4, 2020, to which the
Defendants replied on Dec. 4, 2020.
In Count I, the Plaintiffs allege that the Defendants committed
several breaches of the duties of prudence and loyalty imposed upon
them by ERISA, specifically 29 U.S.C. Section 1104. The parties
only dispute whether the Plaintiffs have adequately alleged that
Defendants breached their fiduciary duties.
In Count II of their Amended Complaint, the Plaintiffs allege that
Key is liable for the failure to properly monitor other
fiduciaries, specifically the Committee and its members. Key
asserts dismissal of this claim is appropriate for two reasons.
First, Key asserts that a failure to monitor claim is derivative of
other breach of fiduciary duty claims, and the Plaintiffs' claim
therefore must be dismissed because they have failed to adequately
allege any other breaches of fiduciary duty. Second, Key asserts
that the Plaintiffs' allegations in support of their monitoring
claim are conclusory because they do not identify any inadequate
appointees or offer any detail about Key's process for monitoring
appointees -- let alone how that process was flawed.
Judge Barker granted in part and denied in part the Defendants'
Motion to Dismiss. She granted the Defendants' Motion to Dismiss
as to the Plaintiffs' claims for the breach of the duty of loyalty
with respect to the alleged payment of excessive administrative
fees and for the breach of the duties of prudence and loyalty with
respect to the MaGIC Fund, and denied in all other respects.
Among other things, Judge Barker opines that while the Plaintiffs
have adequately stated a claim for breach of the duty of prudence
with respect to the Plan's administrative fees, they have failed to
allege facts supporting their claim for breach of the duty of
loyalty that raise it above the speculative level. The only
allegations that support their claim independent of their
allegations with respect to the excessiveness of the Plan's
administrative fees are that Key and Alight have a "close
relationship" and that Alight also administers Key's pension plan,
Key's retiree medical plan, and KeyBank's online HR portal, all of
which Key pays for independently of the Plan.
From this, the Plaintiffs assert it is reasonable to infer that the
Defendants allowed participants to be charged excessive
administrative fees in exchange for discounts on the other
services. However, they have not alleged that Alight actually gave
Key favorable rates on any of those other services or even that the
Plan's fees were negotiated in connection with the fees for those
other services. Thus, there is no indication that the Defendants
received any benefit in exchange for paying Alight a higher rate
for the Plan's administrative services. Even taking into account
the Plaintiffs' potential lack of access to inside information, to
assume that the Defendants engaged in self-dealing without
additional factual allegations is too speculative.
Consequently, Judge Barker granted the Defendants' Motion to
Dismiss with respect to the Plaintiffs' claim for breach of the
duty of loyalty in this regard.
Judge Barker also opines that the Plaintiffs' conclusory allegation
that the Defendants acted to prop up the MaGIC Fund is not
sufficient to reasonably infer that the Defendants acted for the
purpose of benefitting themselves when the Plaintiffs have failed
to plausibly allege that the MaGIC Fund was inordinately expensive
or underperformed. Moreover, the Plaintiffs have also failed to
specifically allege the way in which the Defendants benefited from
including the MaGIC Fund in the Plan. Thus, the Defendants' Motion
to Dismiss is granted as to the Plaintiffs' loyalty claim with
respect to the MaGIC Fund.
A full-text copy of the Court's May 4, 2021 Memorandum Opinion &
Order is available at https://tinyurl.com/tapp647d from
Leagle.com.
KNAUF GIPS: Dismissal of Pierre's Drywall Liability Claim Affirmed
------------------------------------------------------------------
IN the case, IN RE: CHINESE-MANUFACTURED DRYWALL PRODUCTS LIABILITY
LITIGATION. WICLER PIERRE, Plaintiff-Appellant v. KNAUF GIPS KG;
KNAUF PLASTERBOARD TIANJIN COMPANY, LIMITED, Defendants-Appellees,
Case No. 20-30329 (5th Cir.), the U.S. Court of Appeals for the
Fifth Circuit affirms the district court's grant of summary
judgment in favor of the Defendants-Appellees dismissing Wicler
Pierre's claim for damages stemming from defective
Chinese-manufactured drywall.
Mr. Pierre purchased the affected property in Boynton Beach,
Florida, on Dec. 3, 2007. Beginning in 2010 and 2011, Pierre said
he became aware of the issues with defective Chinese drywall and
the potential that it had been installed at his property. He also
said that he had to begin replacing fuses on a monthly basis as a
result of Chinese drywall in 2010. In 2016, Pierre said he did a
formal inspection and discovered defective Chinese drywall
connected to the Knauf entities.
Mr. Pierre initially filed his claim on Nov. 21, 2016 as part of a
purported class action (Bennett class) in the Chinese drywall
multi-district litigation (MDL). The district court subsequently
denied class certification and dismissed the class allegations,
leaving only individual claims. Pierre's claim alleged various
damages under Florida law resulting from the presence of defective
Chinese drywall installed in his Florida property. The complaint
was amended multiple times; the Fifth Amended Complaint is relevant
in the instant.
At the close of discovery, Knauf moved for summary judgment on the
basis that Pierre's claim was time-barred by the four-year Florida
statute of limitations. The district court granted the motion and
Pierre now appeals.
Mr. Pierre first asserts that the accrual date for the statute of
limitations under Florida law was not until 2016 when he had the
Chinese drywall inspection completed. He admits that he was aware
of Chinese drywall in his house in 2011.
However, the Fifth Circuit finds that Pierre asserts that the
crucial factor is when he learned the specific identity of the
drywall manufacturer by cutting into the walls of his house in June
of 2016. Pierre cites no authority for such a proposition.
Further, as the district court found, the record contains multiple
admissions by Pierre that he knew about the Chinese drywall as
early as 2011. Additionally, Pierre admitted that he had to begin
replacing fuses on a monthly basis as a result of the Chinese
drywall in 2010.
Mr. Pierre also asserts that the MDL was pending before he
discovered the issue. Thus, Pierre asserts that the claims are
protected by the equitable tolling principles of American Pipe &
Const. Co. v. Utah, 414 U.S. 538 (1974), if the discovery of the
defective product occurred on or after Dec. 9, 2009 and a claim was
filed on or before Feb. 7, 2017, when the four-year statutory
filing period ended. Thus, he asserts that his Nov. 21, 2016
filing was timely.
In American Pipe, once the statute of limitations has been tolled,
it remains tolled for all members of the putative class until class
certification is denied. At that point, class members may choose
to file their own suits or to intervene as plaintiffs in the
pending action. However, Pierre asserts that equitable tolling
should apply from the filing of an earlier class action, the Payton
class, filed on Dec. 9, 2009. He asserts that a claim filed before
Feb. 7, 2017, the four-year anniversary of the Payton class
certification, would be timely.
The Fifth Circuit holds that in China Agritech, the Supreme Court
explicitly concluded that American Pipe does not permit a plaintiff
who waits out the statute of limitations to piggyback on an
earlier, timely filed class action. It also said that American
Pipe does not permit the maintenance of a follow-on class action
past expiration of the statute of limitations. The Fifth Circuit
likewise concludes that Pierre cannot piggyback on the earlier
Payton class action to avoid the expiration of the statute of
limitations.
For the reasons it stated, the Fifth Circuit concludes that the
district court did not err in granting summary judgment. Thus, it
affirms.
A full-text copy of the Court's May 4, 2021 Order is available at
https://tinyurl.com/2jyzjysw from Leagle.com.
MAINE: Sparks Appeals Unemployment Suit Dismissal to 1st Cir.
-------------------------------------------------------------
Plaintiff Marc Sparks filed an appeal from a court ruling entered
in the lawsuit entitled MARC SPARKS, on behalf of himself and those
similarly situated v. JANET MILLS, in her official capacity as the
Governor of the State of Maine; RANDALL LIBERTY, in his official
capacity as the Commissioner of the Department of Corrections;
LAURA FORTMAN, in her official capacity as the Commissioner of the
Department of Labor, Case No. 2:20-cv-00190-LEW, in the U.S.
District Court for the District of Maine, Portland.
As reported in the Class Action Reporter on June 9, 2020, the
lawsuit is a class action brought by the Plaintiff to vindicate his
right to procedural due process under the Fourteenth Amendment to
the United States Constitution after Commissioner Laura Fortman and
the Department of Labor have halted the distribution of further
unemployment benefits to the Work Release Program participants
including the Plaintiff amid COVID-19, pursuant to Governor Janet
Mills's directive.
According to the complaint, Plaintiff was, until recently, employed
as a grill cook at the Applebee's restaurant in Thomaston, Maine.
COVID-19 pandemic brought Mr. Sparks's employment, along with the
employment of thousands of individuals in the state of Maine and
across the country, to a halt.
Mr. Sparks's employment at Applebee's was facilitated by Bolduc
Correctional Facility's Work Release Program. The Work Release
Program allows incarcerated individuals classified as "community
custody" -- the lowest security classification -- to work at and
receive wages from employers in the local community.
The Plaintiff now seeks a review of the Court's Order dated March
26, 2021, granting Defendant's motion to dismiss his first amended
complaint for lack of jurisdiction.
The appellate case is captioned as Sparks v. Mills, et al., Case
No. 21-1346, in the United States Court of Appeals for the First
Circuit, filed on May 5, 2021.
The briefing schedule states that Docketing Statement, Transcript
Report/Order form, and Appearance form are due on May 20,
2021.[BN]
Plaintiff-Appellant MARC SPARKS, on behalf of himself and those
similarly situated, is represented by:
Carol J. Garvan, Esq.
Shelby Hannah Clearfie Leighton, Esq.
JOHNSON WEBBERT & GARVAN LLP
160 Capitol St, Ste 3
Augusta, ME 04330
Telephone: (207) 623-5110
E-mail: cgarvan@johnsonwebbert.com
sleighton@work.law
- and -
Christopher K. MacLean, Esq.
DIRIGO LAW GROUP LLP
20 Mechanic St
Camden, ME 04843
Telephone: (207) 236-2500
E-mail: chris@camdenlaw.com
Defendants-Appellees JANET T. MILLS, in her official capacity as
the Governor of the State of Maine; RANDALL LIBERTY, in his
official capacity as the Commissioner of the Department of
Corrections; and LAURA FORTMAN US DEPARTMENT OF LABOR, in her
official capacity as the Commissioner, are represented by:
Jason David Anton, Esq.
Kelly Lynn Morrell, Esq.
ME ATTORNEY GENERAL'S OFFICE
6 State House Station
Augusta, ME 04333-0006
Telephone: (207) 626-8800
E-mail: jason.anton@maine.gov
kelly.l.morrell@maine.gov
- and -
Julia M. Lipez, Esq.
US ATTORNEY'S OFFICE
100 Middle St, East Tower, 6th Flr
Portland, ME 04101-4100
Telephone: (207) 780-3257
MDL 2873: Rosch Sues Over Exposure to Harmful AFFF
--------------------------------------------------
RONALD THEODORE ROSCH v. 3M COMPANY (f/k/a Minnesota Mining and
Manufacturing Company); AGC CHEMICALS AMERICAS INC.; COMPLAINT AND
AMEREX CORPORATION; JURY DEMAND ARCHROMA U.S. INC.; ARKEMA, INC.;
BUCKEYE FIRE EQUIPMENT COMPANY; CARRIER GLOBAL CORPORATION;
CHEMDESIGN PRODUCTS, INC.; CHEMGUARD, INC.; CHEMICALS, INC.;
CHEMOURS COMPANY FC, LLC; CHUBB FIRE, LTD; CLARIANT CORP.; CORTEVA,
INC.; DEEPWATER CHEMICALS, INC.; DU PONT DE NEMOURS INC. (f/k/a
DOWDUPONT INC.); DYNAX CORPORATION; E.I. DU PONT DE NEMOURS AND
COMPANY; KIDDE-FENWAL, INC.; KIDDE PLC; NATION FORD CHEMICAL
COMPANY; NATIONAL FOAM, INC.; THE CHEMOURS COMPANY; TYCO FIRE
PRODUCTS LP, as successor-in-interest to The Ansul Company; UNITED
TECHNOLOGIES CORPORATION; UTC FIRE & SECURITY AMERICAS CORPORATION,
INC. (f/k/a GE) Interlogix, Inc.), Case No. 2:21-cv-01216-RMG
(D.S.C., April 26, 2021) is an action brought against the
Defendants for damages for personal injury resulting from exposure
to aqueous film-forming foams ("AFFF") containing the toxic
chemicals collectively known as per and polyfluoroalkyl substances
("PFAS"). PFAS includes, but is not limited to, perfluorooctanoic
acid ("PFOA") and perfluorooctane sulfonic acid ("PFOS") and
related chemicals including those that degrade to PFOA and/or PFOS.
AFFF is a specialized substance designed to extinguish
petroleum-based fires.
The complaint alleges that Defendants collectively designed,
marketed, developed, manufactured, distributed, released, trained
users, produced instructional materials, promoted, sold, and/or
otherwise released into the stream of commerce AFFF with knowledge
that it contained highly toxic and bio persistent PFASs, which
would expose end users of the product to the risks associated with
PFAS. Further, defendants designed, marketed, developed,
manufactured, distributed, released, trained users, produced
instructional materials, promoted, sold and/or otherwise handled
and/or used underlying chemicals and/or products added to AFFF
which contained PFAS for use in firefighting.
Defendants' PFAS-containing AFFF products were used by the
Plaintiff in their intended manner, without significant change in
the products' condition. Plaintiff was unaware of the dangerous
properties of the Defendants' AFFF products and relied on the
Defendants' instructions as to the proper handling of the products.
Plaintiff's consumption, inhalation and/or dermal absorption of
PFAS from Defendant's AFFF products caused Plaintiff to develop
serious medical conditions and complications, the complaint
asserts.
Ronald Theodore Rosch is a resident and citizen of Akron, Ohio.
Plaintiff regularly used, and was thereby directly exposed to AFFF
in training and to extinguish fires during his working career as a
military and/or civilian firefighter. Plaintiff was diagnosed with
testicular cancer as a result of exposure to Defendants' AFFF
products.
Defendant, 3M Company, f/k/a Minnesota Mining and Manufacturing
Company is a Delaware corporation and does business throughout the
United States. 3M has its principal place of business at 3M Center,
St. Paul, Minnesota 55133. 3M designed, marketed, developed,
manufactured, distributed, released, trained users, produced
instructional materials, promoted, sold and/or otherwise handled
and/or used AFFF containing PFAS that are used in firefighting
training and response exercises.
Defendant AGC Chemicals Americas, Inc. is a Delaware corporation
and does business throughout the United States. AGC has its
principal place of business at 55 E. Uwchlan Ave., Suite 201,
Exton, Pennsylvania 19341.
Defendant Amerex Corporation is an Alabama corporation and does
business throughout the United States. Amerex has its principal
place of business at 7595 Gadsden Highway, Trussville, Alabama
35173.
Defendant Archroma U.S. Inc. is a North Carolina company and does
business throughout the United States. Archroma has its principal
place of business at 5435 77 Center Drive, #10 Charlotte, North
Carolina 28217. Archroma was formed in 2013 as part of the
acquisition of Clariant Corporation's Textile Chemicals, Paper
Specialties and Emulsions business by SK Capital Partners.
Defendant Arkema, Inc. is a Pennsylvania corporation and does
business throughout the United States. Arkema has its principal
place of business at 900 1st Avenue, King of Prussia, Pennsylvania
19406. Assets of Arkema's fluorochemical business were purchased by
Defendant Dupont in 2002.
The Rosch case has been consolidated in MDL No. 2873, In Re:
Aqueous Film-Forming Foams Products Liability Litigation. The case
is assigned to the Hon. Judge Richard Gergel.[BN]
The Plaintiff is represented by:
Gregory A. Cade, Esq.
Gary A. Anderson, Esq.
Kevin B. McKie, Esq.
ENVIRONMENTAL LITIGATION GROUP, P.C.
2160 Highland Avenue South
Birmingham, AL 35205
Telephone: 205-328-9200
Facsimile: 205-328-9456
- and -
J. Edward Bell, III, Esq.
Gabrielle Anna Sulpizio, Esq.
BELL LEGAL GROUP
219 Ridge Street
Georgetown, SC 25442
Telephone: 843-546-2408
Facsimile: 843-546-9604
MDL 2873: Schmierer Sues Over Exposure to Harmful AFFF
------------------------------------------------------
DANIEL EUGENE SCHMIERER v. 3M COMPANY (f/k/a Minnesota Mining and
Manufacturing Company); AGC CHEMICALS AMERICAS INC.; COMPLAINT AND
AMEREX CORPORATION; JURY DEMAND ARCHROMA U.S. INC.; ARKEMA, INC.;
BUCKEYE FIRE EQUIPMENT COMPANY; CARRIER GLOBAL CORPORATION;
CHEMDESIGN PRODUCTS, INC.; CHEMGUARD, INC.; CHEMICALS, INC.;
CHEMOURS COMPANY FC, LLC; CHUBB FIRE, LTD; CLARIANT CORP.; CORTEVA,
INC.; DEEPWATER CHEMICALS, INC.; DU PONT DE NEMOURS INC. (f/k/a
DOWDUPONT INC.); DYNAX CORPORATION; E.I. DU PONT DE NEMOURS AND
COMPANY; KIDDE-FENWAL, INC.; KIDDE PLC; NATION FORD CHEMICAL
COMPANY; NATIONAL FOAM, INC.; THE CHEMOURS COMPANY; TYCO FIRE
PRODUCTS LP, as successor-in-interest to The Ansul Company; UNITED
TECHNOLOGIES CORPORATION; UTC FIRE & SECURITY AMERICAS CORPORATION,
INC. (f/k/a GE) Interlogix, Inc.), Case No. 2:21-cv-01216-RMG
(D.S.C., April 26, 2021) is an action brought against the
Defendants for damages for personal injury resulting from exposure
to aqueous film-forming foams ("AFFF") containing the toxic
chemicals collectively known as per and polyfluoroalkyl substances
("PFAS"). PFAS includes, but is not limited to, perfluorooctanoic
acid ("PFOA") and perfluorooctane sulfonic acid ("PFOS") and
related chemicals including those that degrade to PFOA and/or PFOS.
AFFF is a specialized substance designed to extinguish
petroleum-based fires.
The complaint alleges that Defendants collectively designed,
marketed, developed, manufactured, distributed, released, trained
users, produced instructional materials, promoted, sold, and/or
otherwise released into the stream of commerce AFFF with knowledge
that it contained highly toxic and bio persistent PFASs, which
would expose end users of the product to the risks associated with
PFAS. Further, defendants designed, marketed, developed,
manufactured, distributed, released, trained users, produced
instructional materials, promoted, sold and/or otherwise handled
and/or used underlying chemicals and/or products added to AFFF
which contained PFAS for use in firefighting.
Defendants' PFAS-containing AFFF products were used by the
Plaintiff in their intended manner, without significant change in
the products' condition. Plaintiff was unaware of the dangerous
properties of the Defendants' AFFF products and relied on the
Defendants' instructions as to the proper handling of the products.
Plaintiff's consumption, inhalation and/or dermal absorption of
PFAS from Defendant's AFFF products caused Plaintiff to develop
serious medical conditions and complications, the complaint
asserts.
Daniel Eugene Schmierer is a resident and citizen of Lodi,
California. Plaintiff regularly used, and was thereby directly
exposed to, AFFF in training and to extinguish fires during his
working career as a military and/or civilian firefighter.
Plaintiff was diagnosed with testicular and prostate cancer as a
result of exposure to Defendants' AFFF products.
Defendant, 3M Company, f/k/a Minnesota Mining and Manufacturing
Company is a Delaware corporation and does business throughout the
United States. 3M has its principal place of business at 3M Center,
St. Paul, Minnesota 55133. 3M designed, marketed, developed,
manufactured, distributed, released, trained users, produced
instructional materials, promoted, sold and/or otherwise handled
and/or used AFFF containing PFAS that are used in firefighting
training and response exercises.
Defendant AGC Chemicals Americas, Inc. is a Delaware corporation
and does business throughout the United States. AGC has its
principal place of business at 55 E. Uwchlan Ave., Suite 201,
Exton, Pennsylvania 19341.
Defendant Amerex Corporation is an Alabama corporation and does
business throughout the United States. Amerex has its principal
place of business at 7595 Gadsden Highway, Trussville, Alabama
35173.
Defendant Archroma U.S. Inc. is a North Carolina company and does
business throughout the United States. Archroma has its principal
place of business at 5435 77 Center Drive, #10 Charlotte, North
Carolina 28217. Archroma was formed in 2013 as part of the
acquisition of Clariant Corporation's Textile Chemicals, Paper
Specialties and Emulsions business by SK Capital Partners.
Defendant Arkema, Inc. is a Pennsylvania corporation and does
business throughout the United States. Arkema has its principal
place of business at 900 1st Avenue, King of Prussia, Pennsylvania
19406. Assets of Arkema's fluorochemical business were purchased by
Defendant Dupont in 2002.
The Schmierer case has been consolidated in MDL No. 2873, In Re:
Aqueous Film-Forming Foams Products Liability Litigation. The case
is assigned to the Hon. Judge Richard Gergel. [BN]
The Plaintiff is represented by:
Gregory A. Cade, Esq.
Gary A. Anderson, Esq.
Kevin B. McKie, Esq.
ENVIRONMENTAL LITIGATION GROUP, P.C.
2160 Highland Avenue South
Birmingham, AL 35205
Telephone: 205-328-9200
Facsimile: 205-328-9456
- and -
J. Edward Bell, III, Esq.
Gabrielle Anna Sulpizio, Esq.
BELL LEGAL GROUP
219 Ridge Street
Georgetown, SC 25442
Telephone: 843-546-2408
Facsimile: 843-546-9604
MDL 2873: Spainhour Sues Over Exposure to Toxic AFFF
-----------------------------------------------------
PATRICK GREGORY SPAINHOUR v. 3M COMPANY (f/k/a Minnesota Mining and
Manufacturing Company; AGC CHEMICALS AMERICAS INC.; COMPLAINT AND
AMEREX CORPORATION; JURY DEMAND ARCHROMA U.S. INC.; ARKEMA, INC.;
BUCKEYE FIRE EQUIPMENT COMPANY; CARRIER GLOBAL CORPORATION;
CHEMDESIGN PRODUCTS, INC.; CHEMGUARD, INC.; CHEMICALS, INC.;
CHEMOURS COMPANY FC, LLC; CHUBB FIRE, LTD; CLARIANT CORP.; CORTEVA,
INC.; DEEPWATER CHEMICALS, INC.; DU PONT DE NEMOURS INC. (f/k/a
DOWDUPONT INC.); DYNAX CORPORATION; E.I. DU PONT DE NEMOURS AND
COMPANY; KIDDE-FENWAL, INC.; KIDDE PLC; NATION FORD CHEMICAL
COMPANY; NATIONAL FOAM, INC.; THE CHEMOURS COMPANY; TYCO FIRE
PRODUCTS LP, as successor-in-interest to The Ansul Company; UNITED
TECHNOLOGIES CORPORATION; UTC FIRE & SECURITY AMERICAS CORPORATION,
INC. (f/k/a GE) Interlogix, Inc.), Case No. 2:21-cv-01216-RMG
(D.S.C., April 26, 2021) is an action brought against the
Defendants for damages for personal injury resulting from exposure
to aqueous film-forming foams ("AFFF") containing the toxic
chemicals collectively known as per and polyfluoroalkyl substances
("PFAS"). PFAS includes, but is not limited to, perfluorooctanoic
acid ("PFOA") and perfluorooctane sulfonic acid ("PFOS") and
related chemicals including those that degrade to PFOA and/or PFOS.
AFFF is a specialized substance designed to extinguish
petroleum-based fires.
The complaint alleges that Defendants collectively designed,
marketed, developed, manufactured, distributed, released, trained
users, produced instructional materials, promoted, sold, and/or
otherwise released into the stream of commerce AFFF with knowledge
that it contained highly toxic and bio persistent PFASs, which
would expose end users of the product to the risks associated with
PFAS. Further, defendants designed, marketed, developed,
manufactured, distributed, released, trained users, produced
instructional materials, promoted, sold and/or otherwise handled
and/or used underlying chemicals and/or products added to AFFF
which contained PFAS for use in firefighting.
Defendants' PFAS-containing AFFF products were used by the
Plaintiff in their intended manner, without significant change in
the products' condition. Plaintiff was unaware of the dangerous
properties of the Defendants' AFFF products and relied on the
Defendants' instructions as to the proper handling of the products.
Plaintiff's consumption, inhalation and/or dermal absorption of
PFAS from Defendant's AFFF products caused Plaintiff to develop
serious medical conditions and complications, the complaint
asserts.
Patrick Gregory Spainhour is a resident and citizen of Dunbar, West
Virginia. Plaintiff regularly used, and was thereby directly
exposed to, AFFF in training and to extinguish fires during his
working career as a military and/or civilian firefighter. Plaintiff
was diagnosed with testicular cancer as a result of exposure to
Defendants' AFFF products.
Defendant, 3M Company, f/k/a Minnesota Mining and Manufacturing
Company is a Delaware corporation and does business throughout the
United States. 3M has its principal place of business at 3M Center,
St. Paul, Minnesota 55133. 3M designed, marketed, developed,
manufactured, distributed, released, trained users, produced
instructional materials, promoted, sold and/or otherwise handled
and/or used AFFF containing PFAS that are used in firefighting
training and response exercises.
Defendant AGC Chemicals Americas, Inc. is a Delaware corporation
and does business throughout the United States. AGC has its
principal place of business at 55 E. Uwchlan Ave., Suite 201,
Exton, Pennsylvania 19341.
Defendant Amerex Corporation is an Alabama corporation and does
business throughout the United States. Amerex has its principal
place of business at 7595 Gadsden Highway, Trussville, Alabama
35173.
Defendant Archroma U.S. Inc. is a North Carolina company and does
business throughout the United States. Archroma has its principal
place of business at 5435 77 Center Drive, #10 Charlotte, North
Carolina 28217. Archroma was formed in 2013 as part of the
acquisition of Clariant Corporation's Textile Chemicals, Paper
Specialties and Emulsions business by SK Capital Partners.
Defendant Arkema, Inc. is a Pennsylvania corporation and does
business throughout the United States. Arkema has its principal
place of business at 900 1st Avenue, King of Prussia, Pennsylvania
19406. Assets of Arkema's fluorochemical business were purchased by
Defendant Dupont in 2002.
The Spainhour case has been consolidated in MDL No. 2873, In Re:
Aqueous Film-Forming Foams Products Liability Litigation. The case
is assigned to the Hon. Judge Richard Gergel.[BN]
The Plaintiff is represented by:
Gregory A. Cade, Esq.
Gary A. Anderson, Esq.
Kevin B. McKie, Esq.
ENVIRONMENTAL LITIGATION GROUP, P.C.
2160 Highland Avenue South
Birmingham, AL 35205
Telephone: 205-328-9200
Facsimile: 205-328-9456
- and -
J. Edward Bell, III, Esq.
Gabrielle Anna Sulpizio, Esq.
BELL LEGAL GROUP
219 Ridge Street
Georgetown, SC 25442
Telephone: 843-546-2408
Facsimile: 843-546-9604
PHILIP MORRIS: Dorion Class Complaint Still Not Served
------------------------------------------------------
Philip Morris International Inc. said in its Form 10-Q Report filed
with the Securities and Exchange Commission on April 27, 2021, for
the quarterly period ended March 31, 2021, that the Company has yet
to be served with the complaint in the class action suit entitled,
Dorion v. Canadian Tobacco Manufacturers' Council, et al.
In the class action filed June 15, 2009 and pending in Canada, the
company, Rothmans, Benson & Hedges Inc., and the company's
indemnitees (PM USA and Altria), and other members of the industry
are defendants.
The plaintiff, an individual smoker, alleges her own addiction to
tobacco products and chronic bronchitis and severe sinus infections
resulting from the use of tobacco products. She is seeking
compensatory and punitive damages on behalf of a proposed class
comprised of all smokers, their estates, dependents and family
members, restitution of profits, and reimbursement of government
health care costs allegedly caused by tobacco products.
Philip Morris said, "To date, we, our subsidiaries, and our
indemnitees have not been properly served with the complaint."
No further updates were provided in the Company's SEC report.
Philip Morris International Inc., through its subsidiaries,
manufactures and sells cigarettes, other nicotine-containing
products, and smoke-free products and related electronic devices
and accessories. The company was incorporated in 1987 and is
headquartered in New York, New York.
PHILIP MORRIS: Jacklin Class Suit Underway in Canada
----------------------------------------------------
Philip Morris International Inc. said in its Form 10-Q Report filed
with the Securities and Exchange Commission on April 27, 2021, for
the quarterly period ended March 31, 2021, that the company
continues to defend a class action suit entitled, Suzanne Jacklin
v. Canadian Tobacco Manufacturers' Council, et al.
In a class action pending in Canada and filed June 20, 2012, the
company, Rothmans, Benson & Hedges Inc., and the company's
indemnitees (PM USA and Altria), and other members of the industry
are defendants.
The plaintiff, an individual smoker, alleges her own addiction to
tobacco products and chronic obstructive pulmonary disease ("COPD")
resulting from the use of tobacco products. She is seeking
compensatory and punitive damages on behalf of a proposed class
comprised of all smokers who have smoked a minimum of 25,000
cigarettes and have allegedly suffered, or suffer, from COPD, heart
disease, or cancer, as well as restitution of profits.
No further updates were provided in the Company's SEC report.
Philip Morris International Inc., through its subsidiaries,
manufactures and sells cigarettes, other nicotine-containing
products, and smoke-free products and related electronic devices
and accessories. The company was incorporated in 1987 and is
headquartered in New York, New York.
PHILIP MORRIS: Kunta Class Suit Ongoing in Canada
-------------------------------------------------
Philip Morris International Inc. said in its Form 10-Q Report filed
with the Securities and Exchange Commission on April 27, 2021, for
the quarterly period ended March 31, 2021, that the company
continues to defend a class action suit entitled, Kunta v. Canadian
Tobacco Manufacturers' Council, et al.
In the class action pending in Canada and filed June 12, 2009, the
company, Rothmans, Benson & Hedges Inc. ("RBH"), and the company's
indemnitees (PM USA and Altria), and other members of the industry,
are defendants.
The plaintiff, an individual smoker, alleges her own addiction to
tobacco products and chronic obstructive pulmonary disease
("COPD"), severe asthma, and mild reversible lung disease resulting
from the use of tobacco products.
She is seeking compensatory and punitive damages on behalf of a
proposed class comprised of all smokers, their estates, dependents
and family members, as well as restitution of profits, and
reimbursement of government health care costs allegedly caused by
tobacco products.
No further updates were provided in the Company's SEC report.
Philip Morris International Inc., through its subsidiaries,
manufactures and sells cigarettes, other nicotine-containing
products, and smoke-free products and related electronic devices
and accessories. The company was incorporated in 1987 and is
headquartered in New York, New York.
PHILIP MORRIS: McDermid Class Action Underway in Canada
-------------------------------------------------------
Philip Morris International Inc. said in its Form 10-Q Report filed
with the Securities and Exchange Commission on April 27, 2021, for
the quarterly period ended March 31, 2021, that the company
continues to defend a class action suit entitled, McDermid v.
Imperial Tobacco Canada Limited, et al.
In the class action pending in Canada and filed June 25, 2010, the
company, Rothmans, Benson & Hedges Inc., and the company's
indemnitees (PM USA and Altria), and other members of the industry,
are defendants.
The plaintiff, an individual smoker, alleges his own addiction to
tobacco products and heart disease resulting from the use of
tobacco products.
He is seeking compensatory and punitive damages on behalf of a
proposed class comprised of all smokers who were alive on June 12,
2007, and who suffered from heart disease allegedly caused by
smoking, their estates, dependents and family members, plus
disgorgement of revenues earned by the defendants from January 1,
1954, to the date the claim was filed.
No further updates were provided in the Company's SEC report.
Philip Morris International Inc., through its subsidiaries,
manufactures and sells cigarettes, other nicotine-containing
products, and smoke-free products and related electronic devices
and accessories. The company was incorporated in 1987 and is
headquartered in New York, New York.
PHILIP MORRIS: Semple Class Action Ongoing in Canada
----------------------------------------------------
Philip Morris International Inc. said in its Form 10-Q Report filed
with the Securities and Exchange Commission on April 27, 2021, for
the quarterly period ended March 31, 2021, that the company
continues to defend a class action suit entitled, Semple v.
Canadian Tobacco Manufacturers' Council, et al.
In the class action pending in Canada and filed June 18, 2009, the
company, Rothmans, Benson & Hedges Inc., and the company's
indemnitees (PM USA and Altria), and other members of the industry,
are defendants.
The plaintiff, an individual smoker, alleges his own addiction to
tobacco products and chronic obstructive pulmonary disease ("COPD")
resulting from the use of tobacco products.
He is seeking compensatory and punitive damages on behalf of a
proposed class comprised of all smokers, their estates, dependents
and family members, as well as restitution of profits, and
reimbursement of government health care costs allegedly caused by
tobacco products.
No further updates were provided in the Company's SEC report.
Philip Morris International Inc., through its subsidiaries,
manufactures and sells cigarettes, other nicotine-containing
products, and smoke-free products and related electronic devices
and accessories. The company was incorporated in 1987 and is
headquartered in New York, New York.
QUEST DIAGNOSTICS: Bid to Dismiss Consolidate ERISA Suit Denied
---------------------------------------------------------------
In the case, In re Quest Diagnostics Incorporated ERISA Litigation,
Civil Action No. 20-07936-SDW-LDW (D.N.J.), Judge Susan D. Wigenton
of the U.S. District Court for the District of New Jersey denied
the Defendants' Motion to Dismiss the Plaintiffs' Consolidated
Complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and
12(b)(6).
The Plaintiffs are "participants and beneficiaries" in Quest
Diagnostics' Profit Sharing Plan, a qualified tax-deferred
defined-contribution retirement plan. As of Dec. 31, 2018, the
Plan had 40,488 participants and account balances/total assets of
$3.9 billion. The Plan is a multiple-employer 401(k) plan, in
which participants direct their contributions to various investment
options ("Investment Menu"). Plan participants were charged
investment management fees and a $31 per-participant annual fee for
recordkeeping services.
At the relevant time, roughly thirteen of the Investment Menu
options were target date funds, which allow participants to
anticipate a retirement date and invest funds more conservatively
as retirement approaches. Fidelity Management & Research Co. is
the "second largest target date fund provider by total assets" in
the investment industry, and the target date funds that it offered
included the Freedom funds ("Active suite") and the Freedom Index
funds ("Index suite"). The Investment Menu included the Active
suite, rather than the Index suite.
On June 29, 2020, the Plaintiffs filed a Complaint alleging (1)
breach of fiduciary duties, pursuant to the Employee Retirement
Income Security Act of 1974, as amended 29 U.S.C. Section 1001, et
seq. ("ERISA"), (2) failure to monitor, and, in the alternative to
the ERISA claims, (3) breach of trust for imprudent Plan
management.
On Oct. 2, 2020, the Plaintiffs filed the Consolidated Complaint,
which largely repeated the same allegations regarding overall Plan
mismanagement. The Defendants moved to dismiss pursuant to Rules
12(b)(1) and 12(b)(6) on Dec. 15, 2020. On Jan. 14, 2021, the
Plaintiffs opposed and the Defendants replied on Feb. 4, 2021.
Since then, the parties have filed various supplemental letters.
Discussion
A. Rule 12(b)(1)
As a threshold matter, to the extent the Defendants argue that the
Plaintiffs lack standing to challenge the Plan's inclusion of
certain Funds, Jugde Wigenton opines that these arguments fail.
Given the Consolidated Complaint's pleaded injury -- the general
mismanagement of the Plan -- which "relates to the Defendants'
management of the Plan as a whole," the Plaintiffs have
sufficiently alleged standing to maintain the suit. In this
context, it would be inappropriate to determine standing based
solely on the individual funds in which the Plaintiffs invested.
Additionally, the Defendants inappositely rely on defined-benefits
cases, although the Plan involves a defined-contribution structure.
While the plaintiffs in Thole v. U.S. Bank N.A., 140 S.Ct. 1615,
1618 (2020), were guaranteed a fixed sum every month, in the case,
the Plaintiffs will receive the value of their individual accounts
upon retirement. Thus, the Defendants' overarching investment
strategies, management choices, and general Plan oversight could
reasonably inflict actual harm to Plaintiffs, although
defined-benefit participants may not necessarily have suffered
similar repercussions.
At bottom, the fact that the Plaintiffs had not individually
invested in every imaginable fund does not deprive them of their
broader standing to "sue on behalf of the Plan and seek relief
under Section 1132(a)(2) that sweeps beyond their own injury."
B. Rule 12(b)(6)
1. Breach of Fiduciary Duties (Count I)
Judge Wigenton holds that the Plaintiffs plausibly allege that the
Defendants breached these duties when making and monitoring the
Plan's investments. The Complaint is replete with allegations that
the Funds were significantly trailing their respective benchmarks,
participants were being further squeezed by higher-than-necessary
expenses, and cheaper and better-performing alternatives were
available to prudent fiduciaries. Taking the requisite holistic
view of the Plaintiffs' allegations regarding deficient Plan
management, dismissal at this early stage based on the Consolidated
Complaint's discussion of the Index suite would be inappropriate.
2. Failure to Monitor (Count II)
Count II adequately states a claim. Judge Wigenton has accepted
that the Consolidated Complaint adequately alleges an "underlying
breach of ERISA duties." The Consolidated Complaint also allege
that the Defendants failed to "monitor," "evaluate," and "remove"
appointees, which allowed the Plan to "suffer enormous losses as a
result" of those appointees' "imprudent actions." The Plaintiffs
further allege that the Defendants failed to monitor the Plan's
investments by "offering and maintaining" the Active suite,
although the Index suite outperformed it. Given the Consolidated
Complaint's allegations, the Judge Court can infer that the
Defendants' actions may have also implicated their duty to
monitor.
3. Breach of Trust (Count III)
The Plaintiffs bring Count III in the alternative, should any
parties be found not to qualify as fiduciaries pursuant to ERISA.
To state a claim for breach of trust, the Plaintiffs must allege
that the Defendants had "actual or constructive knowledge of the
circumstances that rendered" the breach. Judge Wigenton finds that
the Plaintiffs allege the Defendants "possessed the requisite
knowledge and information to avoid the fiduciary breaches at issue"
and knowingly "permitted the Plan to offer" a poor Investment Menu.
They sufficiently state a claim that Defendants knew or should
have known about the nonfeasance or malfeasance of others.
Conclusion
For the reasons she set forth, Judge Wigenton denied the
Defendant's motion to dismiss. An appropriate order follows.
A full-text copy of the Court's May 4, 2021 Opinion is available at
https://tinyurl.com/ynrpyv8j from Leagle.com.
RYDER SYSTEM: Decision on Bid to Nix Key West Policy Suit Reserved
------------------------------------------------------------------
Ryder System, Inc. said in its Form 10-Q Report filed with the
Securities and Exchange Commission on April 28, 2021, for the
quarterly period ended March 31, 2021, that the court handling the
case Key West Policy & Fire Pension Fund v. Ryder System, Inc., et
al. , held a hearing on defendants' Motion to Dismiss, and reserved
decision.
On May 20, 2020, a putative class action on behalf of purchasers of
the company's securities who purchased or otherwise acquired their
securities between July 23, 2015 and February 13, 2020, inclusive
(Class Period), was commenced against Ryder and certain of its
current and former officers in the U.S. District Court for the
Southern District of Florida, captioned Key West Policy & Fire
Pension Fund v. Ryder System, Inc., et al.
The complaint alleges, among other things, that the defendants
misrepresented Ryder's depreciation policy and residual value
estimates for its vehicles during the Class Period in violation of
Section 10(b) and 20(a) of the Securities Exchange Act of 1934 and
Rule 10b-5 promulgated thereunder, and seeks to recover, among
other things, unspecified compensatory damages and attorneys' fees
and costs.
On August 3, 2020, the State of Alaska, Alaska Permanent Fund, the
City of Fort Lauderdale General Employees' Retirement System, and
the City of Plantation Police Officers Pension Fund were appointed
lead plaintiffs.
On October 5, 2020, the lead plaintiffs filed an amended complaint.
On December 4, 2020, Ryder and the other named defendants in the
case filed a Motion to Dismiss the amended complaint.
On April 7, 2021, the court held a hearing on defendants' Motion to
Dismiss, and reserved decision.
Ryder System, Inc., commonly known as Ryder, is an American
provider of transportation and supply chain management products,
and is especially known for its fleet of rental trucks. Ryder
specializes in fleet management, supply chain management, and
dedicated contracted carriage. The company is based in Miami,
Florida.
SAMSUNG ELECTRONICS: Baird Appeals Case Dismissal to 9th Circuit
----------------------------------------------------------------
Plaintiffs Lance Baird, et al., filed an appeal from a court ruling
entered in the lawsuit entitled LANCE BAIRD, STEVE ALTES, LOUIS
LECIEJEWSKI, AND KRISHNENDU CHAKRABORTY v. SAMSUNG ELECTRONICS
AMERICA, INC., Case No. 4:17-cv-06407-JSW, in the U.S. District
Court for the Northern District of California, Oakland.
The Plaintiffs in the case allege that they purchased Samsung Smart
TVs in 2011 and 2012 in reliance on Samsung's express advertising
and marketing representations that the product would give the user
access to YouTube. They further allege that Samsung knew at the
time that access to YouTube could be discontinued at any point.
Shortly after the Plaintiffs purchased their Smart TVs, Samsung
began transitioning from Smart TVs that had a flash-based YouTube
application to Smart TVs that had an HTML5-based YouTube app. In
2017, YouTube permanently stopped functioning on the Plaintiffs'
Smart TVs because the company running YouTube discontinued the
flash-based app.
YouTube explained that it and its "device partners" had decided it
was "the right time to end-of-life" the flash-based YouTube app in
favor of the HTML5 version of the app because the flash-based app
could not access new features that were being added to the YouTube
app. Samsung and YouTube made suggestions regarding additional
products that could be used to continue accessing YouTube on Smart
TVs purchased before 2013; Samsung allegedly offered no remedy or
fix for the problem.
The Plaintiffs filed the putative class action seeking damages,
attorney's fees and costs, and specific performance in the form of
reinstatement of their access to YouTube. They asserted various
claims, including breach of contract, negligent misrepresentation,
and violations of consumer protection laws. All of the Plaintiffs'
claims were dismissed by the district court for failure to state a
claim upon which relief could be granted under Federal Rule of
Civil Procedure 12(b)(6).
As reported in the Class Action Reporter on May 25, 2020, the U.S.
Court of Appeals for the Ninth Circuit reversed the district
court's dismissal of the Plaintiffs' claims against Samsung.
The Plaintiff now seek a review of the Court's Order dated January
26, 2021, granting Defendant's motion to dismiss the case.
The appellate case is captioned as Lance Baird, et al v. Samsung
Electronics America, Case No. 21-15818, in the United States Court
of Appeals for the Ninth Circuit, filed on May 5, 2021.
The briefing schedule in the Appellate Case states that:
-- Appellants Steve Altes, Lance Baird, Krishendu Chakraborty
and Louis Leciejewski Mediation Questionnaire was due on May 12,
2021;
-- Appellants Steve Altes, Lance Baird, Krishendu Chakraborty
and Louis Leciejewski opening brief is due on July 6, 2021;
-- Appellee Samsung Electronics America, Inc. answering brief is
due on August 3, 2021; and
-- Appellant's optional reply brief is due 21 days after service
of the answering brief.[BN]
Plaintiffs-Appellants LANCE BAIRD, STEVE ALTES, LOUIS LECIEJEWSKI,
and KRISHENDU CHAKRABORTY, individually, and on behalf of a class
of others similarly situated, are represented by:
Jacob Lee Karczewski, Esq.
LAW OFFICES OF JACOB KARCZEWSKI
4311 N. 30th Street
Tacoma, WA 98407
Telephone: (253) 229-3173
E-mail: jkarczewski@rrexparris.com
Defendant-Appellee SAMSUNG ELECTRONICS AMERICA, INC., a
corporation, is represented by:
Lance Etcheverry, Esq.
SKADDEN, ARPS, SLATE, MEAGHER & FLOM, LLP
525 University Avenue
Palo Alto, CA 94301
Telephone: (650) 470-3170
E-mail: letcheve@skadden.com
SIRIUS XM: Appeal in Flo & Eddie Class Action Stayed
----------------------------------------------------
Sirius XM Holdings Inc. said in its Form 10-Q Report filed with the
Securities and Exchange Commission on April 28, 2021, for the
quarterly period ended March 31, 2021, that the appeal in the Flo &
Eddie initiated class action, remains stayed.
On October 2, 2014, Flo & Eddie Inc. filed a class action suit
against Pandora in the federal district court for the Central
District of California.
The complaint alleges a violation of California Civil Code Section
980, unfair competition, misappropriation and conversion in
connection with the public performance of sound recordings recorded
prior to February 15, 1972 ("pre-1972 recordings").
On December 19, 2014, Pandora filed a motion to strike the
complaint pursuant to California's Anti-Strategic Lawsuit Against
Public Participation ("Anti-SLAPP") statute, which following denial
of Pandora's motion was appealed to the Ninth Circuit Court of
Appeals. In March 2017, the Ninth Circuit requested certification
to the California Supreme Court on the substantive legal questions.
The California Supreme Court accepted certification.
In May 2019, the California Supreme Court issued an order
dismissing consideration of the certified questions on the basis
that, following the enactment of the Orrin G. Hatch-Bob Goodlatte
Music Modernization Act, Pub. L. No. 115-264, 132 Stat. 3676 (2018)
(the "MMA"), resolution of the questions posed by the Ninth Circuit
Court of Appeals was no longer "necessary to . . . settle an
important question of law."
The MMA grants a potential federal preemption defense to the claims
asserted in the aforementioned lawsuits. In July 2019, Pandora took
steps to avail itself of this preemption defense, including making
the required payments under the MMA for certain of its uses of
pre-1972 recordings. Based on the federal preemption contained in
the MMA (along with other considerations), Pandora asked the Ninth
Circuit to order the dismissal of the Flo & Eddie, Inc. v. Pandora
Media, Inc. case.
On October 17, 2019, the Ninth Circuit Court of Appeals issued a
memorandum disposition concluding that the question of whether the
MMA preempts Flo and Eddie's claims challenging Pandora's
performance of pre-1972 recordings "depends on various unanswered
factual questions" and remanded the case to the District Court for
further proceedings.
In October 2020, the District Court denied Pandora's renewed motion
to dismiss the case under California's anti-SLAPP statute, finding
the case no longer qualified for anti-SLAPP due to intervening
changes in the law, and denied Pandora's renewed attempt to end the
case.
Alternatively, the District Court ruled that the preemption defense
likely did not apply to Flo & Eddie's claims, in part because the
District Court believed that the MMA did not apply retroactively.
Pandora promptly appealed the District Court's decision to the
Ninth Circuit, and moved to stay appellate briefing pending the
appeal of a related case against Sirius XM.
On January 13, 2021, the Ninth Circuit issued an order granting the
stay of appellate proceedings pending the resolution of a related
case against Sirius XM.
Sirius said, "We believe we have substantial defenses to the claims
asserted in this action, and we intend to defend this action
vigorously."
Sirius XM Holdings Inc. provides satellite radio services in the
United States. The company broadcasts music, sports, entertainment,
comedy, talk, news, traffic, and weather channels, including
various music genres ranging from rock, pop and hip-hop, country,
dance, jazz, Latin, and classical; live play-by-play sports from
principal leagues and colleges; multitude of talk and entertainment
channels for various audiences; national, international, and
financial news; and limited run channels. The company was founded
in 1990 and is headquartered in New York, New York. Sirius XM
Holdings Inc. is a subsidiary of Liberty Media Corporation.
SIX FLAGS: Bid to Amend Complaint in OFPRS Suit Pending
-------------------------------------------------------
Six Flags Entertainment Corporation said in its Form 10-Q Report
filed with the Securities and Exchange Commission on April 28,
2021, for the quarterly period ended April 4, 2021, that the motion
to amend or set aside judgment filed in the consolidated putative
securities class action suit headed by Oklahoma Firefighters
Pension and Retirement System and Electrical Workers Pension Fund
Local 103 I.B.E.W., is pending.
In February 2020, two putative securities class action complaints
were filed against Holdings and certain of its former executive
officers in the U.S. District Court for the Northern District of
Texas.
On March 2, 2020, the two cases were consolidated in an action
captioned Electrical Workers Pension Fund Local 103 I.B.E.W. v. Six
Flags Entertainment Corp., et al., Case No. 4:20-cv-00201-P (N.D.
Tex.), and an amended complaint was filed on March 20, 2020.
On May 8, 2020, Oklahoma Firefighters Pension and Retirement System
and Electrical Workers Pension Fund Local 103 I.B.E.W. were
appointed as lead plaintiffs, Bernstein Litowitz Berger & Grossman
LLP was appointed as lead counsel, and McKool Smith PC was
appointed as liaison counsel. On July 2, 2020, lead plaintiffs
filed a consolidated complaint.
The consolidated complaint alleges, among other things, that the
defendants made materially false or misleading statements or
omissions regarding the Company's business, operations and growth
prospects, specifically with respect to the development of its Six
Flags branded parks in China and the financial health of its
partner, Riverside Investment Group Co. Ltd., in violation of the
federal securities laws.
The consolidated complaint seeks compensatory damages and other
relief on behalf of a putative class of purchasers of Holdings'
publicly traded common stock during the period between April 24,
2018 and February 19, 2020. On August 3, 2020, defendants filed a
motion to dismiss the consolidated complaint.
On March 3, 2021, the court granted defendants' motion, dismissing
the complaint in its entirety and with prejudice. Plaintiffs filed
a motion to amend or set aside judgment on March 31, 2021, and
defendants filed an opposition to that motion on April 21, 2021.
Six Flags said, "We believe that these lawsuits are without merit
and intend to defend this litigation vigorously. However, there can
be no assurance regarding the ultimate outcome of the lawsuit."
Six Flags Entertainment Corporation, incorporated on December 9,
1997, is a regional theme park operator. The Company operates in
the theme parks segment. The Company operates approximately 19
regional theme and water parks. Its parks occupy approximately
4,500 acres of land. Its parks are located in geographically
diverse markets across North America. The company is based in Grand
Prairie, Texas.
SIX FLAGS: Discovery Kingdom Employees' Suit Ongoing
----------------------------------------------------
Six Flags Entertainment Corporation said in its Form 10-Q Report
filed with the Securities and Exchange Commission on April 28,
2021, for the quarterly period ended April 4, 2021, that Magic
Mountain LLC, continues to defend purported class action suits in
the Superior Court of Los Angeles County, California, initiated by
current and former employees of Six Flags Discovery Kingdom.
On September 18, 2019, a complaint was filed against Magic Mountain
LLC in the Superior Court of Los Angeles County, California, on
behalf of a purported class of current and former employees of Six
Flags Magic Mountain.
An amended complaint was filed on November 24, 2019. On May 27,
2020, a copycat complaint was filed by the same law firm on behalf
of a different named plaintiff alleging nearly identical causes of
action.
The complaints allege violations of California law governing
payment of wages, wage statements, and background checks, and seeks
unpaid wages and statutory damages under California law as well as
under the Private Attorneys General Act, and attorneys fees and
costs.
Six Flags said, "We intend to vigorously defend ourselves against
this litigation. Since this litigation is in an early stage, the
outcome is currently not determinable and a reasonable estimate of
loss or range of loss cannot be made."
No further updates were provided in the Company's SEC report.
Six Flags Entertainment Corporation, incorporated on December 9,
1997, is a regional theme park operator. The Company operates in
the theme parks segment. The Company operates approximately 19
regional theme and water parks. Its parks occupy approximately
4,500 acres of land. Its parks are located in geographically
diverse markets across North America. The company is based in Grand
Prairie, Texas.
SIX FLAGS: Settlement in Credit Card Info Suits Gets Initial OK
---------------------------------------------------------------
Six Flags Entertainment Corporation said in its Form 10-Q Report
filed with the Securities and Exchange Commission on April 28,
2021, for the quarterly period ended April 4, 2021, that the
court granted preliminary approval of the settlement in the
putative class action suits related to the printing of more than
the last five digits of a credit or debit card number entered.
During 2017, four putative class action complaints were filed
against Holdings or one of its subsidiaries. Complaints were filed
on August 11, 2017, in the Circuit Court of Lake County, Illinois;
on September 1, 2017, in the United States District Court for the
Northern District of Georgia; on September 11, 2017, in the
Superior Court of Los Angeles County, California; and on November
30, 2017, in the Superior Court of Ocean County, New Jersey.
The complaints allege that the company, in violation of federal
law, printed more than the last five digits of a credit or debit
card number on customers' receipts and/or the expiration dates of
those cards.
A willful violation may subject a company to liability for actual
damages or statutory damages between $100 and $1,000 per person,
punitive damages in an amount determined by a court and reasonable
attorneys' fees, all of which are sought by the plaintiffs.
The complaints do not allege that any information was misused.
On October 20, 2020, the parties entered into a settlement
agreement to resolve the lawsuits, for an immaterial amount, and
preliminary approval was granted by the court on December 3, 2020.
All four lawsuits are stayed pending final approval of the
settlement by the court.
No further updates were provided in the Company's SEC report.
Six Flags Entertainment Corporation, incorporated on December 9,
1997, is a regional theme park operator. The Company operates in
the theme parks segment. The Company operates approximately 19
regional theme and water parks. Its parks occupy approximately
4,500 acres of land. Its parks are located in geographically
diverse markets across North America. The company is based in Grand
Prairie, Texas.
SIX FLAGS: Settlement in Suit vs SFNE Granted Final Approval
------------------------------------------------------------
Six Flags Entertainment Corporation said in its Form 10-Q Report
filed with the Securities and Exchange Commission on April 28,
2021, for the quarterly period ended April 4, 2021, that the court
granted final approval on the settlement in the purported class
action suit involving current and former employees of Six Flags New
England (SFNE).
On March 8, 2016, certain plaintiffs filed a complaint against one
of the company's subsidiaries in the Superior Court of
Massachusetts, Suffolk County, on behalf of a purported class of
current and former employees of Six Flags New England.
The complaint alleges violations of Massachusetts law governing
employee overtime and rest breaks, and seeks damages in the form of
unpaid wages for overtime and meal breaks and related penalties.
On November 12, 2020, the parties entered into a settlement
agreement to resolve the lawsuit, for an immaterial amount, and
final approval was granted by the court on March 31, 2021.
Six Flags Entertainment Corporation, incorporated on December 9,
1997, is a regional theme park operator. The Company operates in
the theme parks segment. The Company operates approximately 19
regional theme and water parks. Its parks occupy approximately
4,500 acres of land. Its parks are located in geographically
diverse markets across North America. The company is based in Grand
Prairie, Texas.
SIX FLAGS: Settlement Reached in Magic Mountain Employees' Suit
---------------------------------------------------------------
Six Flags Entertainment Corporation said in its Form 10-Q Report
filed with the Securities and Exchange Commission on April 28,
2021, for the quarterly period ended April 4, 2021, that a
settlement has been reached in the purported class action suit
initiated by current and former employees of Six Flags Magic
Mountain.
On February 14, 2020, a complaint was filed against Magic Mountain,
LLC in the Superior Court of Los Angeles County, California, on
behalf of a purported class of current and former employees of Six
Flags Magic Mountain.
The complaint alleges one cause of action for failure to furnish
accurate, itemized wage statements in violation of California labor
law, and seeks statutory damages under California law as well as
under the Private Attorneys General Act, and attorneys' fees and
costs.
Following mediation on January 13, 2021, the parties agreed to a
settlement in principle to resolve the lawsuit, for an immaterial
amount.
The settlement is subject to preliminary and final approval by the
court.
Six Flags Entertainment Corporation, incorporated on December 9,
1997, is a regional theme park operator. The Company operates in
the theme parks segment. The Company operates approximately 19
regional theme and water parks. Its parks occupy approximately
4,500 acres of land. Its parks are located in geographically
diverse markets across North America. The company is based in Grand
Prairie, Texas.
SIX FLAGS: Settlement Reached in Suit Over Unpaid Overtime
----------------------------------------------------------
Six Flags Entertainment Corporation said in its Form 10-Q Report
filed with the Securities and Exchange Commission on April 28,
2021, for the quarterly period ended April 4, 2021, that a
settlement has been reached in the purported class action suit
initiated by current and former employees of Six Flags Discovery
Kingdom.
On April 20, 2018, a complaint was filed against Holdings and Six
Flags Concord, LLC in the Superior Court of Solano County,
California, on behalf of a purported class of current and former
employees of Six Flags Discovery Kingdom.
On June 15, 2018, an amended complaint was filed adding Park
Management Corp. as a defendant.
The amended complaint alleges violations of California law
governing, among other things, employee overtime, meal and rest
breaks, wage statements, and seeks damages in the form of unpaid
wages, and related penalties, and attorneys' fees and costs.
Following mediation on November 30, 2020, the parties agreed to a
settlement in principle to resolve the lawsuit, for an immaterial
amount.
The settlement is subject to preliminary and final approval by the
court.
Six Flags Entertainment Corporation, incorporated on December 9,
1997, is a regional theme park operator. The Company operates in
the theme parks segment. The Company operates approximately 19
regional theme and water parks. Its parks occupy approximately
4,500 acres of land. Its parks are located in geographically
diverse markets across North America. The company is based in Grand
Prairie, Texas.
SUFFOLK COUNTY, NY: 2d Cir. Affirms Dismissal of Bens BBQ v. SCPD
-----------------------------------------------------------------
In the case, Bens BBQ, Inc., Plaintiff-Appellant v. County of
Suffolk, Defendant-Appellee, Case No. 20-3254 (2d Cir.), the U.S.
Court of Appeals for the Second Circuit affirmed the final judgment
of the U.S. District Court for Eastern District of New York
(Feuerstein, J.) dismissing Bens' suit against Defendant-Appellee
Suffolk County.
The Fire Alarm Law imposes fees on alarm owners for alarm triggers
that the Suffolk County Police District ("SCPD") deems "false
alarms," a category that includes alarms resulting from "mechanical
failure, accidental tripping, misoperation, malfunction, misuse or
neglect of the alarm system, but will not include alarms caused by
earthquakes, high winds, verifiable utility failures or external
causes beyond the control of the alarm owner or alarms caused by
smoke, fire or carbon monoxide." Fines for false alarms range from
$100 (for the first false alarm or third false alarm for non-permit
holders and permit holders, respectively) to $500 (for the tenth
and subsequent false alarms).
When there is a false alarm, the SCPD sends a letter to the alarm
owner asking for payment. Alarm owners may appeal the fine through
a written appeal to the SCPD. Bens alleged that the SCPD is the
sole arbiter of what constitutes a "false alarm," and that there is
no hearing or proceeding in which an alarm owner can enter a plea
of not guilty, submit testimony or evidence, appear before an
impartial judge, or cross examine witnesses.
Bens received notice from SCPD seeking payment in the amount of
$1,410 for false alarms occurring on Sept. 11, 2016, Sept. 14,
2016, Oct. 17, 2016, and Nov. 19, 2016. Bens submitted a written
appeal and alleges that it did not receive a response from the
SCPD. The County commenced a small claims action against Bens to
collect the fines. The small claims court awarded the County
$1,710 because Bens had not paid the fine.
Bens commenced a putative class action on June 18, 2019, against
the County asserting claims pursuant to 42 U.S.C. Sections 1983 and
1985 alleging that the False Alarm Law authorizes the County to
impose fines on alarm owners without giving them recourse to
challenge the County's determination in violation of the Due
Process Clause of the Fourteenth Amendment, the Eighth Amendment's
prohibition on excessive fines, the Takings Clause of the Fifth
Amendment, and New York State law. The district court dismissed
all but the Eighth Amendment claim, which Bens subsequently
withdrew voluntarily.
Bens timely appealed the district court's dismissal of its
Fourteenth Amendment, Fifth Amendment, and New York State law
claims. It appeals from the final judgment of the district court
dismissing its suit against the County concluding, inter alia, that
the County's False Alarm Law did not violate the due process rights
of Suffolk County alarm owners, did not effectuate an unlawful
taking under the Fifth Amendment, and did not violate New York
state law.
Because there is no dispute that the challenged conduct was
"committed by a person acting under color of state law," the
question on appeal is whether Bens has adequately alleged a
violation of a federal constitutional right. The Second Circuit
concludes that Bens has not.
Bens first argues that the False Alarm Law violates its procedural
due process rights under Mathews v. Eldridge, 424 U.S. 319 (1976),
because the law fails to provide alarm owners a pre-deprivation
oral hearing.
The Second Circuit disagrees. To determine when a pre- or
post-deprivation hearing is required, Mathews requires the
balancing of (1) the private interest, (2) the risk of erroneous
deprivation, and (3) the government's interest. Mathews does not
require that the False Alarm Law provide a pre-deprivation hearing
to alarm owners beyond the written appeals process that it already
provides.
While the $1,410 total fine levied against Bens is not trivial, it
is the sum of four separate fines for four separate false alarm
incidents. The fine for each incident ranges from only $100 to
$500 per incident, which is not overly burdensome for a
non-residential business owner. Indeed, for permit holders, the
first two false alarms would not even have resulted in fines.
Meanwhile, the County has a strong interest in regulating false
alarms, which Bens does not dispute. False alarms cost law
enforcement and other first responders time and money.
Disincentivizing false alarms allows law enforcement resources to
be channeled toward actual emergencies. Finally, the risk of
erroneous deprivation is not so high as to require additional
pre-deprivation procedures.
Bens alleges that the SCPD did not respond to his written appeal.
Yet it does not argue that the County has a policy of not
responding to such appeals. Nor, in pressing his facial challenge
to the False Alarm Law, does Bens argue that the County's actions
in his particular case render its conduct unconstitutional as
applied.
Accordingly, the Second Circuit concludes that the False Alarm Law
does not violate the constitutional right to procedural due
process.
Ben next argues that the false alarm fees constitute a taking under
the Fifth Amendment. The Takings Clause of the Fifth Amendment
guarantees that "private property will not be taken for public use,
without just compensation." This protection applies to states
through the Fourteenth Amendment.
Bens does not argue that it should be compensated for the fine but
rather that "the false alarm fee scheme has had a negative impact
on alarm owners and drastically altered the reasonable
investment-backed expectations they had when purchasing their alarm
systems to protect their homes and businesses." The claim,
therefore, is that the County has effectuated a regulatory taking
by reducing the value of its alarm system.
The Second Circuit holds that because the False Alarm Law aims to
preserve law enforcement resources for true emergencies rather than
false alarms, the cost associated with false alarm fines would be
an expected cost of maintaining an alarm system that calls for law
enforcement to respond rather than a departure from the
expectations a business would have when investing in such an alarm
system. And, while the False Alarm Law does generate revenue, it
is also rationally related to the legitimate purpose of preserving
scarce law enforcement resources. Considering the Penn Central
factors, therefore, the Second Circuit concludes that the False
Alarm Law does not effectuate a regulatory taking under the Fifth
and Fourteenth Amendments.
Bens finally argues that the district court erred in dismissing its
claim under New York law for "money had and received." A party
asserting a claim for "money had and received" under New York law
must show that "under principles of equity and good conscience,
defendant should not be permitted to keep the money."
Bens does not identify a principle of equity that would require the
County to return the fees. To the extent that Bens argues that the
false alarm fees do not bear a relationship to the cost of
providing the governmental service, the argument fails. The
County's proffered reason for fining false alarms is rationally
related to discouraging false alarms that waste scarce law
enforcement resources.
The Second Circuit has considered the Appellant's remaining
arguments, which it concludes are without merit. For the foregoing
reasons, it affirmed the judgment of the district court.
A full-text copy of the Court's May 4, 2021 Summary Order is
available at https://tinyurl.com/bae2jxfv from Leagle.com.
Christopher A. Bianco -- cbianco@egangolden.com -- Egan & Golden,
LLP, in Patchogue, New York, for Defendant-Appellee.
Michael J. Petre, Assistant County Attorney, Suffolk County
Department of Law, in Hauppauge, New York.
SWIFT TRANSPORTATION: Valiente Appeals Summary Judgment Ruling
--------------------------------------------------------------
Plaintiffs Johel Valiente, et al., filed an appeal from a court
ruling entered in the lawsuit entitled Johel Valiente and Ashraf
Aiad, individually and on behalf of all others similarly situated,
Plaintiff, v. Swift Transportation Company of Arizona, LLC and Does
1 through 20, inclusive, Defendants, inclusive, Case No.
2:19-cv-04217-VAP-KK, in the U.S. District Court for the Central
District of California, Los Angeles.
In this lawsuit, Valiente and Aiad seek redress for Defendants'
failure to pay minimum wages, failure to pay all overtime wages,
meal period violations, wage statement violations, waiting time
penalties and unfair competition under California Law.
As previously reported in the Class Action Reporter, the lawsuit
was removed from the California Superior Court for the County of
Los Angeles to the United States District Court for the Central
District of California on May 15, 2019. Defendants stated that the
class easily exceeds the 100-member requirement imposed by the
Class Action Fairness Act, that the amount in controversy exceeds
$5,000,000 and that Plaintiff and Defendant are citizens of
different states, as basis for removal.
The Plaintiffs now seeks a review of the Court's Order and Judgment
dated April 5, 2021, awarding Summary Judgment sua sponte in favor
of Defendant Swift Transportation Co. of Arizona, LLC.
The appellate case is captioned as Johel Valiente, et al v. Swift
Transportation Co. of Arizona, LLC, Case No. 21-55456, in the
United States Court of Appeals for the Ninth Circuit, filed on May
5, 2021.
The briefing schedule in the Appellate Case states that:
-- Appellants Ashraf Aiad and Johel Valiente Mediation
Questionnaire was due on May 12, 2021;
-- Transcript shall be ordered by June 3, 2021;
-- Transcript is due on July 6, 2021;
-- Appellants Ashraf Aiad and Johel Valiente opening brief is
due on August 12, 2021;
-- Appellee Swift Transportation Co. of Arizona, LLC answering
brief is due on September 13, 2021; and
-- Appellant's optional reply brief is due 21 days after service
of the answering brief.[BN]
Plaintiff-Appellant JOHEL VALIENTE and ASHRAF AIAD, on behalf of
themselves and all others similarly situated, are represented by:
Louis Max Benowitz, Esq.
LAW OFFICES OF LOUIS BENOWITZ
9454 Wilshire Blvd. PH
Beverly Hills, CA 90212
Telephone: (310) 888-7771
E-mail: louis@benowitzlaw.com
- and -
James R. Hawkins, Esq.
Gregory Mauro, Esq.
JAMES HAWKINS APLC
9880 Research Drive
Irvine, CA 92618
Telephone: (949) 387-7200
- and -
Stanley D. Saltzman, Esq.
MARLIN & SALTZMAN, LLP
29800 Agoura Road
Agoura Hills, CA 91301
Defendant-Appellee SWIFT TRANSPORTATION CO. OF ARIZONA, LLC, a
Delaware limited liability company, is represented by:
Paul Scott Cowie, Esq.
John Ellis, Esq.
SHEPPARD MULLIN RICHTER & HAMPTON LLP
4 Embarcadero Center
San Francisco, CA 94111-4106
Telephone: (415) 774-3182
E-mail: pcowie@sheppardmullin.com
jellis@sheppardmullin.com
- and -
Robert Mussig, Esq.
SHEPPARD MULLIN RICHTER & HAMPTON LLP
333 South Hope Street, 43rd Floor
Los Angeles, CA 90071-1448
Telephone: (213) 620-1780
E-mail: rmussig@sheppardmullin.com
TEVA PHARMA: Appeals Class Certification of Ontario Teachers' Suit
------------------------------------------------------------------
Teva Pharmaceutical Industries Limited said in its Form 10-Q Report
filed with the Securities and Exchange Commission on April 28,
2021, for the quarterly period ended March 31, 2021, that appeal on
the grant of class certification and appointment of class
representative in Ontario Teachers Securities Litigation, is
pending.
On November 6, 2016 and December 27, 2016, two putative securities
class actions were filed in the U.S. District Court for the Central
District of California against Teva and certain of its current and
former officers and directors.
Those lawsuits were consolidated and transferred to the U.S.
District Court for the District of Connecticut (the "Ontario
Teachers Securities Litigation").
On December 13, 2019, the lead plaintiff in that action filed an
amended complaint, purportedly on behalf of purchasers of Teva's
securities between February 6, 2014 and May 10, 2019. The amended
complaint asserts that Teva and certain of its current and former
officers and directors violated federal securities and common laws
in connection with Teva's alleged failure to disclose pricing
strategies for various drugs in its generic drug portfolio and by
making allegedly false or misleading statements in certain offering
materials.
The amended complaint seeks unspecified damages, legal fees,
interest, and costs.
In July 2017, August 2017, and June 2019, other putative securities
class actions were filed in other federal courts based on similar
allegations, and those cases have been transferred to the U.S.
District Court for the District of Connecticut.
Between August 2017 and October 2020, twenty complaints were filed
against Teva and certain of its current and former officers and
directors seeking unspecified compensatory damages, legal fees,
costs and expenses.
The similar claims in these complaints have been brought on behalf
of plaintiffs, in various forums across the country, who have
indicated that they intend to "opt-out" of the Ontario Teachers
Securities Litigation. On March 10, 2020, the Court consolidated
the Ontario Teachers Securities Litigation with all of the
above-referenced putative class actions for all purposes and the
"opt-out" cases for pretrial purposes. The case is now in
discovery.
Pursuant to that consolidation order, plaintiffs in several of the
"opt-out" cases filed amended complaints on May 28, 2020. On
January 22, 2021, the Court dismissed the "opt-out" plaintiffs'
claims arising from statements made prior to the five year statute
of repose, but denied Teva's motion to dismiss their claims under
Israeli laws. Those "opt-out" plaintiffs moved for reconsideration,
which was denied on March 30, 2021.
The Ontario Teachers Securities Litigation plaintiffs' Motion for
Class Certification and Appointment of Class Representatives and
Class Counsel was granted on March 9, 2021, to which Teva has
sought an appeal. That motion is pending.
Motions to approve securities class actions were also filed in the
Tel Aviv District Court in Israel with similar allegations to those
made in the Ontario Teachers Securities Litigation.
Teva Pharmaceutical Industries Limited, a pharmaceutical company,
develops, manufactures, markets, and distributes generic medicines
and a portfolio of specialty medicines worldwide. It operates
through two segments, Generic Medicines and Specialty Medicines.
Teva Pharmaceutical Industries Limited was founded in 1901 and is
headquartered in Petach Tikva, Israel.
TEVA PHARMA: Copaxone-Related Putative Class Suit Underway
----------------------------------------------------------
Teva Pharmaceutical Industries Limited said in its Form 10-Q Report
filed with the Securities and Exchange Commission on April 28,
2021, for the quarterly period ended March 31, 2021, that the
company continues to defend a putative securities class action suit
related to COPAXONE.
On September 23, 2020, a putative securities class action was filed
in the U.S. District Court for the Eastern District of Pennsylvania
against Teva and certain of its former officers alleging, among
other things, violations of Section 10(b) of the Securities and
Exchange Act of 1934 and SEC Rule 10b-5.
The complaint, purportedly filed on behalf of persons who purchased
or otherwise acquired Teva securities between October 29, 2015 and
August 18, 2020, alleges that Teva and certain of its former
officers violated federal securities laws by allegedly making false
and misleading statements regarding the commercial performance of
COPAXONE, namely, by failing to disclose that Teva had caused the
submission of false claims to Medicare through Teva's donations to
bona fide independent charities that provide financial assistance
to patients, which allegedly impacted COPAXONE's commercial success
and the sustainability of its revenues and resulted in the above
referenced August 2020 False Claims Act complaint filed by the DOJ.
The securities class action complaint seeks unspecified damages,
legal fees, interest, and costs.
The case is in its preliminary stages, and on March 15, 2021,
plaintiffs filed amended complaints. On March 26, 2021, the Court
appointed lead plaintiff and lead counsel, and instructed that the
lead plaintiff can file an amended complaint by May 25, 2021.
A motion to approve a securities class action was also filed in the
Central District Court in Israel, which has been stayed pending the
U.S. litigation, with similar allegations to those made in the
above complaint filed in the U.S. District Court for the Eastern
District of Pennsylvania.
Teva Pharmaceutical Industries Limited, a pharmaceutical company,
develops, manufactures, markets, and distributes generic medicines
and a portfolio of specialty medicines worldwide. It operates
through two segments, Generic Medicines and Specialty Medicines.
Teva Pharmaceutical Industries Limited was founded in 1901 and is
headquartered in Petach Tikva, Israel.
TEVA PHARMA: Opioid-Related Suits in State & Federal Courts Ongoing
-------------------------------------------------------------------
Teva Pharmaceutical Industries Limited said in its Form 10-Q Report
filed with the Securities and Exchange Commission on April 28,
2021, for the quarterly period ended March 31, 2021, that more
than 3,000 complaints have been filed with respect to opioid sales
and distribution against various Teva affiliates.
Since May 2014, more than 3,000 complaints have been filed with
respect to opioid sales and distribution against various Teva
affiliates, along with several other pharmaceutical companies, by a
number of cities, counties, states, other governmental agencies,
tribes and private plaintiffs (including various putative class
actions of individuals) in both state and federal courts. Most of
the federal cases have been consolidated into a multidistrict
litigation in the Northern District of Ohio ("MDL Opioid
Proceeding") and many of the cases filed in state court have been
removed to federal court and consolidated into the MDL Opioid
Proceeding.
Two cases that were included in the MDL Opioid Proceeding were
recently transferred back to federal district court for additional
discovery, pre-trial proceedings and trial.
Those cases are: City of Chicago v. Purdue Pharma L.P. et al., No.
14-cv-04361 (N.D. Ill.) and City and County of San Francisco v.
Purdue Pharma L.P. et al., No. 18-cv-07591-CRB (N.D. Cal.). Other
cases remain pending in various states.
In some jurisdictions, such as Illinois, New York, Pennsylvania,
South Carolina, Texas, Utah and West Virginia, certain state court
cases have been transferred to a single court within their
respective state court systems for coordinated pretrial
proceedings.
Complaints asserting claims under similar provisions of different
state law, generally contend that the defendants allegedly engaged
in improper marketing and distribution of opioids, including
ACTIQ(R) and FENTORA(R).
The complaints also assert claims related to Teva's generic opioid
products. In addition, over 950 personal injury plaintiffs,
including various putative class actions of individuals, have
asserted personal injury and wrongful death claims in over 600
complaints, nearly all of which are consolidated in the MDL Opioid
Proceeding.
Furthermore, approximately 700 complaints have named Anda, Inc.
(and other distributors and manufacturers) alleging that Anda
failed to develop and implement systems sufficient to identify
suspicious orders of opioid products and prevent the abuse and
diversion of such products to individuals who used them for other
than legitimate medical purposes. Plaintiffs seek a variety of
remedies, including restitution, civil penalties, disgorgement of
profits, treble damages, attorneys' fees and injunctive relief.
Certain plaintiffs assert that the measure of damages is the
entirety of the costs associated with addressing the abuse of
opioids and opioid addiction and certain plaintiffs specify
multiple billions of dollars in the aggregate as alleged damages.
The individual personal injury plaintiffs further seek non-economic
damages. In many of these cases, plaintiffs are seeking joint and
several damages among all defendants.
On April 19, 2021, a bench trial in California (The People of the
State of California, acting by and through Santa Clara County
Counsel James R. Williams, et. al. v. Purdue Pharma L.P., et. al.)
commenced with Teva and other defendants focused on the marketing
of branded opioids. Absent resolutions, additional trials are
expected to proceed in several states in 2021.
In May 2019, Teva settled the Oklahoma litigation brought by the
Oklahoma Attorney General (State of Oklahoma, ex. rel. Mike Hunter,
Attorney General of Oklahoma vs. Purdue Pharma L.P., et. al.) for
$85 million.
The settlement did not include any admission of violation of law
for any of the claims or allegations made. As the Company
demonstrated a willingness to settle part of the litigation, for
accounting purposes, management considered a portion of
opioid-related cases as probable and, as such, recorded an
estimated provision in the second quarter of 2019.
Given the relatively early stage of the cases, management viewed no
amount within the range to be the most likely outcome. Therefore,
management recorded a provision for the reasonably estimable
minimum amount in the assessed range for such opioid-related cases
in accordance with Accounting Standards Codification 450
"Accounting for Contingencies."
On October 21, 2019, Teva reached a settlement with the two
plaintiffs in the MDL Opioid Proceeding that was scheduled for
trial for the Track One case, Cuyahoga and Summit Counties of Ohio.
Under the terms of the settlement, Teva will provide the two
counties with opioid treatment medication, buprenorphine naloxone
(sublingual tablets), known by the brand name Suboxone, with a
value of $25 million at wholesale acquisition cost and distributed
over three years to help in the care and treatment of people
suffering from addiction, and a cash payment in the amount of $20
million, to be paid in four payments over three years.
Also on October 21, 2019, Teva and certain other defendants reached
an agreement in principle with a group of Attorneys General from
North Carolina, Pennsylvania, Tennessee and Texas for a nationwide
settlement. This nationwide settlement was designed to provide a
mechanism by which the Company attempts to seek resolution of
remaining potential and pending opioid claims by both the U.S.
states and political subdivisions (i.e., counties, tribes and other
plaintiffs) thereof. Under this nationwide settlement, Teva would
provide buprenorphine naloxone (sublingual tablets) with an
estimated value of up to approximately $23 billion at wholesale
acquisition cost over a ten year period. In addition, Teva would
also provide cash payments of up to $250 million over a ten year
period.
During the passage of time since then, the Company has continued to
negotiate the terms and conditions of a nationwide settlement.
There are many complex financial and legal issues still
outstanding, including indemnification claims by Allergan against
the Company, arising from the acquisition of the Actavis Generics
business. Since negotiations are ongoing, the Company cannot
predict if a settlement will be finalized.
The Company considered a range of potential settlement outcomes.
The current provision remains a reasonable estimate of the ultimate
costs if a settlement is finalized based on the Company's most
recent offer to settle. However, if not finalized for the entirety
of the cases, a reasonable upper end of a range of loss cannot be
determined. An adverse resolution of any of these lawsuits or
investigations may involve large monetary penalties, damages,
and/or other forms of monetary and non-monetary relief and could
have a material and adverse effect on Teva's reputation, business,
results of operations and cash flows.
Separately, on April 27, 2018, Teva received subpoena requests from
the United States Attorney's office in the Western District of
Virginia and the Civil Division seeking documents relating to the
manufacture, marketing and sale of branded opioids. In August 2019,
Teva received a grand jury subpoena from the United States
Attorney's Office for the Eastern District of New York for
documents related to the Company's anti-diversion policies and
procedures and distribution of its opioid medications, in what the
Company understands to be part of a broader investigation into
manufacturers' and distributors' monitoring programs and reporting
under the Controlled Substances Act.
In September 2019, Teva received subpoenas from the New York State
Department of Financial Services (NYDFS) as part of an
industry-wide inquiry into the effect of opioid prescriptions on
New York health insurance premiums. Following a Statement of
Charges and Notice of Hearing filed by the NYDFS, a hearing is
currently scheduled to take place in June 2021. Currently, Teva
cannot predict how a nationwide settlement (if finalized) will
affect these investigations and administrative actions. In
addition, a number of state attorneys general, including a
coordinated multistate effort, have initiated investigations into
sales and marketing practices of Teva and its affiliates with
respect to opioids. Other states are conducting their own
investigations outside of the multistate group. Teva is cooperating
with these ongoing investigations and cannot predict their outcome
at this time.
In addition, several jurisdictions and consumers in Canada have
initiated litigation regarding opioids alleging similar claims as
those in the United States. The cases in Canada may be consolidated
and are in their early stages.
Teva Pharmaceutical Industries Limited, a pharmaceutical company,
develops, manufactures, markets, and distributes generic medicines
and a portfolio of specialty medicines worldwide. It operates
through two segments, Generic Medicines and Specialty Medicines.
Teva Pharmaceutical Industries Limited was founded in 1901 and is
headquartered in Petach Tikva, Israel.
TEXAS: Court Dismisses Without Prejudice Shafer Class Suit v. TDCJ
------------------------------------------------------------------
In the case, RICHARD SCOTT SHAFER, et al., Plaintiffs v. MICHAEL
RUTLEDGE, et al., Defendants, Civil Action No. 2:21-CV-040 (S.D.
Tex.), Judge Nelva Gonzales Ramos of the U.S. District Court for
the Southern District of Texas, Corpus Christi Division, dismissed
without prejudice the action in its entirety.
Plaintiffs Richard Scott Shafer and Thomas Twiss filed the lawsuit
as a putative class action on behalf of certain inmates
incarcerated in the Texas Department of Criminal Justice (TDCJ) for
violation of their right to exercise their religions under the
First Amendment and the Religious Land Use and Institutionalized
Persons Act (RLUIPA).
Pending before the Court are two Memoranda and Recommendations
(M&Rs) issued by United States Magistrate Judge Julie K. Hampton:
1. The first M&R, issued March 18, 2021, recommends denial of
the motion for class certification and dismissal without prejudice
of Plaintiff Twiss so that he may file his own action.
2. The second M&R, issued April 22, 2021, recommends denial of
Plaintiff Shafer's application to proceed in forma pauperis and
dismissal without prejudice for failure to timely pay the filing
fee within 20 days as required by the Magistrate Judge's Order
issued March 17, 2021.
Plaintiff Twiss did not file objections. Plaintiff Shafer filed
objections to the first M&R, claiming among other things that he
(and Plaintiff Twiss) can adequately represent a class of prisoners
of different -- but similar -- religious faiths.
Judge Ramos does not agree. As stated by the Magistrate Judge, the
Plaintiffs failed to show that they can properly serve as
representative parties in a class action consisting of prisoners
from different faiths. Plaintiff Shafer's failure to comply with
the court order to timely pay the filing fee, alone, demonstrates
that he is incapable of adequately representing the class. The
Judge overruled the objections.
Plaintiff Shafer also filed objections to the second M&R, asserting
that he has done everything in his power to pay his filing fee and
that the administrative complexities or incompetencies of the TDCJ
are the only reasons it has not been paid. He further argues that
the Court should provide him an additional notice of failure to pay
the filing fee if the payment is not received by May 7, 2021. The
Order required payment by April 6, 2021. Plaintiff Shafer can
determine if his account has been debited in the amount of the
filing fee, as he asserts that when he checked in March, it had not
been debited. The objections, filed April 30, 2021, do not reflect
an attempt to ascertain the status of a request for payment from
his trust account since that time. Plaintiff Shafer's objections
are thus overruled.
Having reviewed the findings of fact, conclusions of law, and
recommendations set forth in the Magistrate Judge's Memoranda and
Recommendations, as well as Plaintiff Shafer's objections, and all
other relevant documents in the record, and having made a de novo
disposition of the portions of the Magistrate Judge's Memorandum
and Recommendation to which objections were specifically directed,
Judge Ramos overrules the Plaintiff's objections and adopts as the
Court's own the findings and conclusions of the Magistrate Judge.
Accordingly, Judge Ramos (i) denies the Plaintiffs' Motion to
Certify Plaintiffs in a Class; (ii) dismisses without prejudice the
claims of Plaintiff Twiss; (iii) denies Plaintiff Shafer's
application to proceed in forma pauperis; and (iv) dismissed
without prejudice Plaintiff Shafer's action for want of prosecution
for failure to timely pay the filing fee. The action is dismissed
without prejudice in its entirety.
A full-text copy of the Court's May 4, 2021 Order is available at
https://tinyurl.com/tdzhspkv from Leagle.com.
UP FINTECH: New York Purported Class Actions Dismissed
------------------------------------------------------
Up Fintech Holding Limited said in its Form 20-F report filed with
the U.S. Securities and Exchange Commission on April 28, 2021, for
the fiscal year ended December 31, 2020, that the purported class
action suits filed against the company has been dismissed.
Two parallel purported class action lawsuits were filed in the New
York Supreme Court, County of New York, Commercial Division (the
"New York State Litigation") in October 2019 and the United States
District Court for the Southern District of New York (the "SDNY
Litigation") filed against the Company and its certain directors
and underwriters in connection with the Company's Initial Public
Offering.
With respect to the SDNY Litigation, the court granted the
company's motion to dismiss in its entirety on March 17, 2021,
finding that the plaintiffs failed to state a claim under the
Securities Act of 1933 and dismissing the complaint with prejudice.
With respect to the New York State Litigation, the court similarly
granted the company's motion to dismiss in its entirety and
dismissed the complaint on April 16, 2021.
Up Fintech said, "We continue to believe that these lawsuits are
meritless. Actions brought against us may result in settlements,
awards, injunctions, fines, penalties and other results adverse to
us. Predicting the outcome of such matters is inherently difficult,
particularly where claims are brought on behalf of various classes
of claimants or by a large number of claimants, when claimants seek
substantial or unspecified damages or when investigations or legal
proceedings are at an early stage."
Up Fintech Holding Limited is a leading online brokerage firm
focusing on global investors. The Company's proprietary mobile and
online trading platform enables investors to trade in equities and
other financial instruments on multiple exchanges around the world.
WILLIAMS COMPANIES: Files Appeal in Del. Sup. Ct.
-------------------------------------------------
In the case captioned The Williams Companies, Inc., Alan S.
Armstrong, Stephen W. Bergstrom, Nancy K. Buese, Stephen I. Chazen,
Charles I. Cogut, Michael A. Creel, Vicki L. Fuller, Peter A.
Ragauss, Scott D. Sheffield, Murray D. Smith, William H. Spence,
and Computershare Trust Company N.A., Defendants Below, Appellants
v. Steven Wolosky and City of St. Clair Shores Police and Fire
Retirement System, on behalf of themselves and all similarly
situated stockholders of The Williams Companies, Inc., Plaintiffs
Below, Appellees, Case No. 139,2021 (Del. Sup. Ct., May 6, 2021),
the Defendants/Appellants appeal to the Supreme Court of the State
of Delaware from the Memorandum Opinion of the Court of Chancery by
The Honorable Kathaleen St. J. McCormick dated February 26, 2021,
in Civil Action No. 2020-0707-KSJM; the Order Implementing February
26, 2020 Memorandum Opinion by The Honorable Kathaleen St. J.
McCormick dated March 4, 2021, in Civil Action No. 2020-0707- KSJM;
and the Final Order and Judgment of the Court of Chancery by The
Honorable Kathaleen St. J. McCormick dated April 23, 2021, in Civil
Action No. 2020-0707-KSJM.[BN]
The Plaintiffs Below-Appellees are represented by:
Michael J. Barry, Esq.
Christine M. Mackintosh, Esq.
Kelly L. Tucker, Esq.
GRANT & EISENHOFER P.A.
123 Justison Street, 7th Floor
Wilmington, DE 19801
Gregory V. Varallo, Esq.
BERNSTEIN, LITOWITZ, BERGER & GROSSMANN LLP
500 Delaware Avenue, Suite 901
Wilmington, DE 19801
The Defendants Below-Appellants are represented by:
William M. Lafferty, Esq.
Kevin M. Coen, Esq.
Lauren K. Neal, Esq.
Sabrina M. Hendershot, Esq.
MORRIS, NICHOLS, ARSHT & TUNNELL LLP
1201 North Market Street
Wilmington, DE 19801
Phone: (302) 658-9200
- and -
Michael A. Weidinger, Esq.
Patricia R. Urban, Esq.
Megan Ix, Esq.
PINCKNEY, WEIDINGER, URBAN & JOYCE LLC
3711 Kennett Pike, Suite 210
Greenville, DE 19807
Phone: (302) 504-1497
- and -
Andrew Ditchfield, Esq.
Brian M. Burnovski, Esq.
Mari Byrne, Esq.
DAVIS POLK & WARDWELL LLP
1251 Avenue of the Americas
New York, NY 10020
Phone: (212) 554-1400
Asbestos Litigation
ASBESTOS UPDATE: Aerojet Rocketdyne Faces 115 Cases as of March 31
------------------------------------------------------------------
Aerojet Rocketdyne Holdings, Inc., has recorded 115 asbestos cases
pending as of March 31, 2021, according to the Company's Form 10-Q
filing with the U.S. Securities and Exchange Commission.
Aerojet Rocketdyne states, "The Company has been, and continues to
be, named as a defendant in lawsuits alleging personal injury or
death and seeking various monetary damages due to exposure to
asbestos in building materials, products, or in manufacturing
operations. The majority of cases are pending in Illinois state
courts.
"Given the lack of any significant consistency to claims (i.e., as
to product, operational site, or other relevant assertions) filed
against the Company, the Company is generally unable to make a
reasonable estimate of the future costs of pending claims or
unasserted claims. The aggregate settlement costs and legal and
administrative fees associated with the Company's asbestos
litigation has been immaterial for the last three years. As of
March 31, 2021, the Company has accrued an immaterial amount
related to pending claims."
A full-text copy of the Form 10-Q is available at
https://bit.ly/3vI9Big
ASBESTOS UPDATE: IDEX Corp. and Subsidiaries Faces PI Lawsuits
--------------------------------------------------------------
IDEX Corporation and six of its subsidiaries are presently named as
defendants in a number of lawsuits claiming various
asbestos-related personal injuries, allegedly as a result of
exposure to products manufactured with components that contained
asbestos, according to the Company's Form 10-Q filing with the U.S.
Securities and Exchange Commission.
The Company states, "These components were acquired from third
party suppliers and were not manufactured by the Company or any of
the defendant subsidiaries. To date, the majority of the Company's
settlements and legal costs, except for costs of coordination,
administration, insurance investigation and a portion of defense
costs, have been covered in full by insurance, subject to
applicable deductibles. However, the Company cannot predict whether
and to what extent insurance will be available to continue to cover
these settlements and legal costs, or how insurers may respond to
claims that are tendered to them. Asbestos-related claims have been
filed in jurisdictions throughout the United States and the United
Kingdom. Most of the claims resolved to date have been dismissed
without payment. The balance of the claims have been settled for
various immaterial amounts. Only one case has been tried, resulting
in a verdict for the Company's business unit. No provision has been
made in the financial statements of the Company, other than for
insurance deductibles in the ordinary course, and the Company does
not currently believe the asbestos-related claims will have a
material adverse effect on the Company's business, financial
position, results of operations or cash flows."
A full-text copy of the Form 10-Q is available at
https://bit.ly/3bkHAp9
ASBESTOS UPDATE: Lennox International Faces Exposure Claims
-----------------------------------------------------------
Lennox International Inc. is involved in a number of claims and
lawsuits incident to the operation of its businesses, wherein some
of which are allege personal injury or health problems resulting
from exposure to asbestos that was integrated into certain of its
products, according to the Company's Form 10-Q filing with the U.S.
Securities and Exchange Commission.
The Company states, "We have never manufactured asbestos and have
not incorporated asbestos-containing components into our products
for several decades. A substantial majority of these
asbestos-related claims have been covered by insurance or other
forms of indemnity or have been dismissed without payment. The
remainder of our closed cases have been resolved for amounts that
are not material, individually or in the aggregate. Our defense
costs for asbestos-related claims are generally covered by
insurance. However, our insurance coverage for settlements and
judgments for asbestos-related claims varies depending on several
factors and are subject to policy limits. We may have greater
financial exposure for future settlements and judgments."
A full-text copy of the Form 10-Q is available at
https://bit.ly/3xRZHMY
ASBESTOS UPDATE: MRC Global Defends 1,152 Claims at March 31
------------------------------------------------------------
MRC Global Inc. has been named as a defendant in approximately 578
lawsuits involving approximately 1,152 claims, as of March 31,
2021, according to the Company's Form 10-Q filing with the U.S.
Securities and Exchange Commission.
The Company states, "We are one of many defendants in lawsuits that
plaintiffs have brought seeking damages for personal injuries that
exposure to asbestos allegedly caused. Plaintiffs and their family
members have brought these lawsuits against a large volume of
defendant entities as a result of the defendants' manufacture,
distribution, supply or other involvement with asbestos, asbestos
containing-products or equipment or activities that allegedly
caused plaintiffs to be exposed to asbestos. These plaintiffs
typically assert exposure to asbestos as a consequence of
third-party manufactured products that our MRC Global (US) Inc.
subsidiary purportedly distributed. No asbestos lawsuit has
resulted in a judgment against us to date, with a majority being
settled, dismissed or otherwise resolved. Applicable third-party
insurance has substantially covered these claims, and insurance
should continue to cover a substantial majority of existing and
anticipated future claims. Accordingly, we have recorded a
liability for our estimate of the most likely settlement of
asserted claims and a related receivable from insurers for our
estimated recovery, to the extent we believe that the amounts of
recovery are probable. It is not possible to predict the outcome of
these claims and proceedings. However, in our opinion, the
likelihood that the ultimate disposition of any of these claims and
legal proceedings will have a material adverse effect on our
consolidated financial statements is remote."
A full-text copy of the Form 10-Q is available at
https://bit.ly/3uEEDau
ASBESTOS UPDATE: OLIN Corp. Has $13.8MM Accrued Liabilities
-----------------------------------------------------------
OLIN Corporation and its subsidiaries, are defendants in various
other legal actions (including proceedings based on alleged
exposures to asbestos) incidental to its past and current business
activities, according to the Company's Form 10-Q filing with the
U.S. Securities and Exchange Commission.
The Company states, "As of March 31, 2021, December 31, 2020 and
March 31, 2020, our condensed balance sheets included accrued
liabilities for these other legal actions of $13.8 million, $13.5
million and $12.0 million, respectively. These liabilities do not
include costs associated with legal representation. Based on our
analysis, and considering the inherent uncertainties associated
with litigation, we do not believe that it is reasonably possible
that these other legal actions will materially adversely affect our
financial position, cash flows or results of operations."
A full-text copy of the Form 10-Q is available at
https://bit.ly/33zd7zC
*********
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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