/raid1/www/Hosts/bankrupt/CAR_Public/210602.mbx
C L A S S A C T I O N R E P O R T E R
Wednesday, June 2, 2021, Vol. 23, No. 104
Headlines
3M COMPANY: Faces Bayless Suit Over AFFF Products' Harmful Effects
3M COMPANY: Faces Karn Suit Over Exposure to Toxic AFFF Products
3M COMPANY: Kallam Alleges Injury From Exposure to AFFF Products
3M COMPANY: Mask Sues Over Injury After AFFF Products' Usage
3M COMPANY: Vest Alleges Injury From AFFF Products' Toxic Exposure
ALTA DEVICES: Court Grants Bid to Certify Class in Gunderson Suit
ANN ARBOR, MI: Bid for Class-Action Status on Water Charges Denied
AVERTEST LLC: Gonzalez to File Notice of Constitutional Question
BAGELCODE USA: Engelbretson Stayed Pending Ruling of MDL Transfer
BANK OF AMERICA: Summary Judgment Ruling in Leyse TCPA Suit Upheld
BANKSIA HILL: Faces Suit From Ex-Inmates Over Children Treatment
BAYER CROPSCIENCE: Bailey Sues Over High Crop Inputs' Prices
CANAAN INC: Levi & Korsinsky Reminds of July 14 Deadline
CHAMPIGNON BRANDS: Zhang Investor Reminds of June 9 Deadline
CHICAGO TITLE: Cal. App. Reverses Judgment in Ahern Class Suit
CHURCHILL CAPITAL: Levi & Korsinsky Reminds of July 18 Deadline
CHURCHILL CAPITAL: RM LAW Discloses Securities Class Action Suit
CIGNA HEALTH: Court Denies Bid to Certify Class in Negron Suit
CINCINATTI, OH: Kohler Appeals Denied Bid for Prelim. Injunction
CINCINNATI INSURANCE: Rye Ridge Appeals Insurance Suit Dismissal
CITADEL: Faces Class Action Lawsuit Over COVID-19 Response
CITY NATIONAL: Noe Appeals Case Dismissal to 4th Circuit
CONTEXTLOGIC INC: Bernstein Liebhard Reminds of July 16 Deadline
CONTEXTLOGIC INC: Bronstein Gewirtz Reminds of July 16 Deadline
CONTEXTLOGIC INC: Gainey McKenna Reminds of July 16 Deadline
CORREVIO PHARMA: Class Settlement in Feierstein Wins Final Approval
CRAB ADDISON: Hart's Bid for Sanctions in Labor Suit Partly Granted
CREDIT CONTROL: Court Denies Bid to Strike Class Claims in Schultz
CUYAHOGA COUNTY, OH: Jackson Suit v. CCCC & Officials Dismissed
DANIMER SCIENTIFIC: Bernstein Liebhard Reminds of July 13 Deadline
DANIMER SCIENTIFIC: Frank R. Cruz Files Securities Fraud Lawsuit
DEPUY SYNTHES: Knee Replacement System "Defective," Lambert Claims
DIEBOLD NIXDORF: Pension Fund Appeals Securities Suit Dismissal
EBIX INC: Clerk to Update Docket to Reflect Saraf as Lead Plaintiff
EMERGENT BIO: Levi & Korsinsky Reminds of June 18 Deadline
ENDO INTERNATIONAL: Court Certifies Class in Pelletier Suit
ERGATTA INC: Fischler Seeks Blind People's Equal Website Access
FIRST CONNECTICUT: Karp Appeals Denied Class Cert. Bid to 4th Cir.
FREEDOM MORTGAGE: Chittick Appeals Ruling in RESPA Suit to 4th Cir.
GEICO GENERAL: Green Appeals Insurance Suit Ruling to Del. Sup. Ct.
GOVERNMENT EMPLOYEES: Has Until June 7 to Respond to Class Cert Bid
GRUPO TELEVISA: Faces Securities Class Action Over Unfair Scheme
GRUPO TELEVISA: Robbins Geller Disqualified From Securities Suit
HERFF JONES: Ahn Sues Over Failure to Protect Customers' Info
HERFF JONES: Quintana Sues Over Data Breach
HIUYIN LAM: Chen Sues Over Unpaid Overtime for Delivery Persons
HOLIDAY HOSPITALITY: Aaron Hotel Sues Over IHG Franchise System
HOUSTON WIRE: Misleads Stockholders to Approve Merger, Franchi Says
ILLINOIS: Bid to Reconsider Bailey's Intervention in Ross Denied
JIANPU TECHNOLOGY: Glancy Named Lead Counsel in Africa Class Suit
JOHNSON & JOHNSON: High Court Won't Hear Appeal on $2.1BB Verdict
KPMG LLP: Seeks Sixth Circuit Review in Cosby Securities Suit
KRISHNA SCHAUMBURG: Summary Judgment in Sekura Suit Affirmed
LIMETREE BAY: Toxic Chemical Releases Prompt Class Action Lawsuit
LIMETREE REFINERY: Faces 2nd Class Action Over Toxic Emissions
LOU TAGE: Faces Enriquez Wage-and-Hour Suit in E.D. New York
MIDDLE KENTUCKY: Class in Campbell Suit Conditionally Certified
NATIONWIDE MUTUAL: Depasquale Appeals Insurance Suit Dismissal
NATIONWIDE REAL: Valdes Appeals TCPA Suit Dismissal to 9th Circuit
NAVIENT CORPORATION: Bernstein Litowitz Reminds of July 9 Deadline
NYC MEDICAL: Court Certifies Classes in Lawrence FLSA-NYLL Suit
PARAGON INDUSTRIES: $3.75M Class Settlement in Castro Gets Final OK
POLARIS INDUSTRIES: Guzman Appeals Ruling in Fraud Suit to 9th Cir.
QUEBEC: Superior Court OKs Class Action Against Religious Order
ROCKET COMPANIES: Rosen Law Firm Discloses Securities Class Action
SELECT PORTFOLIO: Washington FDCPA Suit Transferred to E.D.N.Y.
SK UNITED: Court Conditionally Certifies Class in Riley Suit
SKILLZ INC: Kessler Topaz Reminds Investors of July 7 Deadline
SKILLZ INC: Levi & Korsinsky Reminds Investors of July 7 Deadline
SOMATICS, LLC: Himes Appeals Ruling in Product Liability Suit
SPARTAN RACE: Class Settlement in Fruitstone Suit Has Final Nod
SPRUCE 1209 LLC: N.Y. Supreme Court Appeal Filed in Chernett Suit
ST. LOUIS, MO: Discovery Deadlines in Cody Suit Partly Extended
SURGICAL CARE: Joseph Saveri Named Interim Co-Lead Counsel
TEMPLE UNIVERSITY: Ryan Appeals Case Dismissal to 3rd Circuit
TRADESTATION GROUP: Sanchez Slams Non-Blind Friendly Website
UBER TECHNOLOGIES: Court Dismisses Nicolas' Third Amended Suit
UBIQUITI INC: Bernstein Liebhard Reminds of July 19 Deadline
UBIQUITI INC: Frank R. Cruz Reminds Investors of July 19 Deadline
UBIQUITI INC: Robbins Geller Reminds Investors of July 18 Deadline
UBIQUITI INC: Schall Law Reminds Investors of July 19 Deadline
UNITED AUTO: Wins Bid to Dismiss Davidson's 2nd Amended Class Suit
UNITED STATES: Acadiana Appeals Fed. Claims Court Ruling
UNITED STATES: Betsy DeVos Ordered to Testify in Class Action
UNITED STATES: Bowling Files Appeal to USCAVC
UNITED STATES: Perry-Bey Appeals Personal Injury Suit Dismissal
UNIVERSAL HEALTH: Appeals Class Cert. Ruling in Boley to 3rd Cir.
UNIVERSITY OF IOWA: Hospital Workers Gain Class Action Cert.
UNIVERSITY OF MICHIGAN: Faces Suit Over Handling of Sexual Assault
UNIVERSITY OF PITTSBURGH: Hickey Appeals Case Dismissal to 3rd Cir.
VITAL FARMS: Faces Class Lawsuit Over Misleading Sale of Eggs
VOLKSWAGEN AG: Eastern District of New York Dismisses Mucha Suit
WALLA WALLA PUBLIC: Crouthamel Appeals Summary Judgment to 9th Cir.
WASTE MANAGEMENT: Class Settlement in Heigl Suit Has Final Approval
WELLS FARGO: Underpays Treasury Service Associates, Calderon Says
*********
3M COMPANY: Faces Bayless Suit Over AFFF Products' Harmful Effects
------------------------------------------------------------------
LINDA BAYLESS, individually and on behalf of all others similarly
situated, Plaintiff v. 3M COMPANY f/k/a Minnesota Mining and
Manufacturing Company; ACG CHEMICALS AMERICAS INC.; AMEREX
CORPORATION; ARCHROMA U.S. INC.; ARKEMA, INC.; BUCKEYE FIRE
EQUIPMENT COMPANY; CARRIER GLOBAL CORPORATION; CHEMDESIGN PRODUCTS,
INC.; CHEMGUARD, INC.; CHEMICALS, INC.; CHEMOURS COMPANY FC, LLC;
CHUBB FIRE, LTD; CLARIANT CORP.; CORTEVA, INC.; DEEPWATER
CHEMICALS, INC.; DU PONT DE NEMOURS INC. f/k/a DOWDUPONT INC.;
DYNAX CORPORATION; E.I. DU PONT DE NEMOURS AND COMPANY;
KIDDE-FENWAL, INC.; KIDDE PLC; NATION FORD CHEMICAL COMPANY;
NATIONAL FOAM, INC.; THE CHEMOURS COMPANY; TYCO FIRE PRODUCTS LP,
as successor-in-interest to The Ansul Company; UNITED TECHNOLOGIES
CORPORATION; UTC FIRE & SECURITY AMERICAS CORPORATION, INC. f/k/a
GE Interlogix, Inc., Defendants, Case No. 2:21-cv-01582-RMG
(D.S.C., May 27, 2021) is a class action against the Defendants for
negligence, battery, inadequate warning, design defect, strict
liability, fraudulent concealment, breach of express and implied
warranties, and wantonness.
According to the complaint, the Defendants have failed to use
reasonable and appropriate care in the design, manufacture,
labeling, warning, instruction, training, selling, marketing, and
distribution of aqueous film forming foam (AFFF) products
containing synthetic, toxic per- and polyfluoroalkyl substances
collectively known as PFAS. The Defendants' AFFF products are
allegedly dangerous to human health because PFAS are highly toxic
and carcinogenic chemicals and can accumulate in the blood and body
of exposed individuals. The Defendants have also failed to warn
public entities and consumers, including the Plaintiff, who they
knew would foreseeably come into contact with their AFFF products.
The Plaintiff used the Defendants' PFAS-containing AFFF products in
their intended manner, without significant change in the products'
condition due to inadequate warning about the products' danger. The
Plaintiff relied on the Defendants' instructions as to the proper
handling of the products, the suit asserts.
As a result of the Defendants' alleged omissions and misconduct,
the Plaintiff sustained damage and injury.
3M Company, f/k/a Minnesota Mining and Manufacturing Co., is a
multinational conglomerate corporation and designer, marketer,
developer, manufacturer, distributor of firefighting equipment,
including those with AFFF. It is located at 3M Center, St. Paul.
Minnesota.
ACG Chemicals Americas Inc. is a manufacturer of chemical products
based in Exton, Pennsylvania.
Amerex Corporation is a manufacturer of firefighting products based
in Trussville, Alabama.
Archroma U.S. Inc. is a global specialty chemicals company
headquartered in Charlotte, North Carolina.
Arkema, Inc. is a diversified chemicals manufacturer in North
America, based in King of Prussia, Pennsylvania.
Buckeye Fire Equipment Co. is a manufacturer of line of handheld
and wheeled fire extinguishers, suppressing foam concentrates &
hardware, and kitchen suppression systems, with principal place of
business located at 110 Kings Road, Mountain, North Carolina.
Carrier Global Corporation is a heating, ventilation, and air
conditioning company based in Palm Beach Gardens, Florida.
Chemdesign Products, Inc. is a chemical toll manufacturing company
based in Marinette, Wisconsin.
Chemguard, Inc. is a manufacturer of fire suppression and specialty
chemicals, including AFFF, with principal place of business located
at One Stanton Street, Marinette, Wisconsin.
Chemicals, Inc. is a chemical manufacturing company based in
Baytown, Texas.
Chemours Company FC, LLC is a manufacturer of titanium
technologies, fluoroproducts and chemical solutions based in
Wilmington, Delaware.
Chubb Fire, Ltd is a provider of security and fire protection
systems based in United Kingdom.
Clariant Corp. is a specialty chemical company based in Charlotte,
North Carolina.
Corteva, Inc. is an American agricultural chemical and seed company
based in Wilmington, Delaware.
Deepwater Chemicals, Inc. is a producer of organic and inorganic
iodine derivatives based in Woodward, Oklahoma.
Du Pont De Nemours Inc., f/k/a DowDuPont Inc., is a chemical
company based in Wilmington, Delaware.
Dynax Corporation is a company that specializes in the production
of fluorochemicals based in Pound Ridge, New York.
E.I Dupont De Nemours & Co. is a provider of agriculture and
specialty products with principal place of business at 1007 Market
Street, Wilmington, Delaware.
Kidde-Fenwal, Inc. is a manufacturer of fire protection systems
based in Ashland, Massachusetts.
Kidde PLC is a manufacturer of fire safety products based in
Mebane, North Carolina.
Nation Ford Chemical Company is a manufacturer of specialty organic
chemicals based in Fort Mill, South Carolina.
National Foam, Inc. is a manufacturer of foam concentrate, foam
proportioning systems, fixed and portable foam firefighting
equipment, with principal place of business located at 350 East
Union Street, West Chester, Pennsylvania.
The Chemours Company is a manufacturer of agricultural chemicals
with principal place of business at 1007 Market Street, Wilmington,
Delaware.
Tyco Fire Products L.P., successor-in-interest to The Ansul
Company, is a manufacturer of water-based fire suppression system
components and ancillary building construction products, including
Ansul brand of AFFF, headquartered at One Stanton Street,
Marinette, Wisconsin.
United Technologies Corporation was an American multinational
conglomerate headquartered in Farmington, Connecticut. It merged
with the Raytheon Company in April 2020 to form Raytheon
Technologies.
UTC Fire & Security Americas Corporation, Inc., f/k/a GE
Interlogix, Inc., is a manufacturer of security and fire control
systems based in Bradenton, Florida. [BN]
The Plaintiff is represented by:
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, LLC
219 Ridge Street
Georgetown, SC 25442
Telephone: (843) 546-2408
Facsimile: (843) 546-9604
3M COMPANY: Faces Karn Suit Over Exposure to Toxic AFFF Products
----------------------------------------------------------------
KEVIN KARN and ROBIN KARN, individually and on behalf of all others
similarly situated, Plaintiffs v. 3M COMPANY f/k/a Minnesota Mining
and Manufacturing Co; TYCO FIRE PRODUCTS L.P.; CHEMGUARD, INC.;
BUCKEYE FIRE EQUIPMENT COMPANY; NATIONAL FOAM, INC.; KIDDE-FENWAL,
INC; E.I. DU PONT DE NEMOURS AND COMPANY; THE CHEMOURS COMPANY; THE
CHEMOURS COMPANY FC, L.L.C.; CARRIER GLOBAL CORPORATION,
individually and as successor in interest to Kidde-Fenwal, Inc.;
CHEMDESIGN PRODUCTS INC.; CHEMICALS INC.; DEEPWATER CHEMICALS,
INC.; NATION FORD CHEMICAL COMPANY; and BASF CORPORATION,
individually and as successor in interest to Ciba Inc., Defendants,
Case No. 2:21-cv-01581-RMG (D.S.C., May 27, 2021) is a class action
against the Defendants for negligence, battery, inadequate warning,
design defect, strict products liability, fraudulent concealment,
breach of express and implied warranties, punitive damages, and
loss of consortium.
The case arises from a personal injury sustained by Plaintiff Kevin
Karn, the spouse of Plaintiff Robin Karn, as a result of his
exposure to the Defendants' aqueous film forming foam (AFFF)
products containing synthetic, toxic per- and polyfluoroalkyl
substances collectively known as PFAS. The Defendants failed to use
reasonable and appropriate care in the design, manufacture,
labeling, warning, instruction, training, selling, marketing, and
distribution of their PFAS-containing AFFF products and also failed
to warn public entities and firefighter trainees, including the
Plaintiff, who they knew would foreseeably come into contact with
their AFFF products that use of and/or exposure to the products
would pose a danger to human health. Due to inadequate warning,
Plaintiff Kevin Karn was exposed to toxic chemicals and developed
bladder cancer, the suit alleges.
3M Company, f/k/a Minnesota Mining and Manufacturing Co., is a
multinational conglomerate corporation and designer, marketer,
developer, manufacturer, distributor of firefighting equipment,
including those with AFFF. It is located at 3M Center, St. Paul.
Minnesota.
Tyco Fire Products L.P., successor-in-interest to The Ansul
Company, is a manufacturer of water-based fire suppression system
components and ancillary building construction products, including
Ansul brand of AFFF, headquartered at One Stanton Street,
Marinette, Wisconsin.
Chemguard, Inc. is a manufacturer of fire suppression and specialty
chemicals, including AFFF, with principal place of business located
at One Stanton Street, Marinette, Wisconsin.
Buckeye Fire Equipment Co. is a manufacturer of line of handheld
and wheeled fire extinguishers, suppressing foam concentrates &
hardware, and kitchen suppression systems, with principal place of
business located at 110 Kings Road, Mountain, North Carolina.
National Foam, Inc. is a manufacturer of foam concentrate, foam
proportioning systems, fixed and portable foam firefighting
equipment, with principal place of business located at 350 East
Union Street, West Chester, Pennsylvania.
Kidde-Fenwal, Inc. is a manufacturer of fire protection systems
based in Ashland, Massachusetts.
E.I Dupont De Nemours & Co. is a provider of agriculture and
specialty products with principal place of business at 1007 Market
Street, Wilmington, Delaware.
The Chemours Company is a manufacturer of agricultural chemicals
with principal place of business at 1007 Market Street, Wilmington,
Delaware.
The Chemours Company FC, LLC is a manufacturer of titanium
technologies, fluoroproducts and chemical solutions based in
Wilmington, Delaware.
Carrier Global Corporation is a heating, ventilation, and air
conditioning company based in Palm Beach Gardens, Florida.
Chemdesign Products, Inc. is a chemical toll manufacturing company
based in Marinette, Wisconsin.
Chemicals, Inc. is a chemical manufacturing company based in
Baytown, Texas.
Deepwater Chemicals, Inc. is a producer of organic and inorganic
iodine derivatives based in Woodward, Oklahoma.
Nation Ford Chemical Company is a manufacturer of specialty organic
chemicals based in Fort Mill, South Carolina.
BASF Corporation is a multinational chemical company based in
Florham Park, New Jersey. [BN]
The Plaintiffs are represented by:
Lawrence R. Cohan, Esq.
Joshua C. Cohan, Esq.
SALTZ MONGELUZZI & BENDESKY P.C.
One Liberty Place
1650 Market St, 52nd Floor
Philadelphia, PA 19103
Telephone: (215) 575-3887
Facsimile: (215) 496-0999
E-mail: lcohan@smbb.com
jcohan@smbb.com
3M COMPANY: Kallam Alleges Injury From Exposure to AFFF Products
----------------------------------------------------------------
FRANCIS J. KALLAM JR., individually and on behalf of all others
similarly situated, Plaintiff v. 3M COMPANY f/k/a Minnesota Mining
and Manufacturing Co; TYCO FIRE PRODUCTS L.P.; CHEMGUARD, INC.;
BUCKEYE FIRE EQUIPMENT COMPANY; NATIONAL FOAM, INC.; KIDDE-FENWAL,
INC; DYNAX CORPORATION; E.I. DU PONT DE NEMOURS AND COMPANY; THE
CHEMOURS COMPANY; THE CHEMOURS COMPANY FC, L.L.C.; CARRIER GLOBAL
CORPORATION, individually and as successor in interest to
Kidde-Fenwal, Inc.; CHEMDESIGN PRODUCTS INC.; CHEMICALS INC.;
CLARIANT CORPORATION, individually and as successor in interest to
Sandoz Chemical Corporation; DEEPWATER CHEMICALS, INC.; NATION FORD
CHEMICAL COMPANY; and BASF CORPORATION, individually and as
successor in interest to Ciba Inc., Defendants, Case No.
2:21-cv-01590-RMG (D.S.C., May 27, 2021) is a class action against
the Defendants for negligence, battery, failure to warn, design
defect, fraudulent concealment, and breach of express and implied
warranties.
The case arises from severe personal injuries sustained by the
Plaintiff as a result of his exposure to the Defendants' aqueous
film forming foam (AFFF) products containing synthetic, toxic per-
and polyfluoroalkyl substances collectively known as PFAS. The
Defendants failed to use reasonable and appropriate care in the
design, manufacture, labeling, warning, instruction, training,
selling, marketing, and distribution of their PFAS-containing AFFF
products and also failed to warn public entities and firefighter
trainees, including the Plaintiff, who they knew would foreseeably
come into contact with their AFFF products that use of and/or
exposure to the products would pose a danger to human health. Due
to inadequate warning, the Plaintiff was exposed to toxic chemicals
and developed serious medical conditions and complications, the
suit alleges.
3M Company, f/k/a Minnesota Mining and Manufacturing Co., is a
multinational conglomerate corporation and designer, marketer,
developer, manufacturer, distributor of firefighting equipment,
including those with AFFF. It is located at 3M Center, St. Paul.
Minnesota.
Tyco Fire Products L.P., successor-in-interest to The Ansul
Company, is a manufacturer of water-based fire suppression system
components and ancillary building construction products, including
Ansul brand of AFFF, headquartered at One Stanton Street,
Marinette, Wisconsin.
Chemguard, Inc. is a manufacturer of fire suppression and specialty
chemicals, including AFFF, with principal place of business located
at One Stanton Street, Marinette, Wisconsin.
Buckeye Fire Equipment Co. is a manufacturer of line of handheld
and wheeled fire extinguishers, suppressing foam concentrates &
hardware, and kitchen suppression systems, with principal place of
business located at 110 Kings Road, Mountain, North Carolina.
National Foam, Inc. is a manufacturer of foam concentrate, foam
proportioning systems, fixed and portable foam firefighting
equipment, with principal place of business located at 350 East
Union Street, West Chester, Pennsylvania.
Kidde-Fenwal, Inc. is a manufacturer of fire protection systems
based in Ashland, Massachusetts.
Dynax Corporation is a company that specializes in the production
of fluorochemicals based in Pound Ridge, New York.
E.I Dupont De Nemours & Co. is a provider of agriculture and
specialty products with principal place of business at 1007 Market
Street, Wilmington, Delaware.
The Chemours Company is a manufacturer of agricultural chemicals
with principal place of business at 1007 Market Street, Wilmington,
Delaware.
The Chemours Company FC, LLC is a manufacturer of titanium
technologies, fluoroproducts and chemical solutions based in
Wilmington, Delaware.
Carrier Global Corporation is a heating, ventilation, and air
conditioning company based in Palm Beach Gardens, Florida.
Chemdesign Products, Inc. is a chemical toll manufacturing company
based in Marinette, Wisconsin.
Chemicals, Inc. is a chemical manufacturing company based in
Baytown, Texas.
Clariant Corp. is a specialty chemical company based in Charlotte,
North Carolina.
Deepwater Chemicals, Inc. is a producer of organic and inorganic
iodine derivatives based in Woodward, Oklahoma.
Nation Ford Chemical Company is a manufacturer of specialty organic
chemicals based in Fort Mill, South Carolina.
BASF Corporation is a multinational chemical company based in
Florham Park, New Jersey. [BN]
The Plaintiff is represented by:
Lawrence R. Cohan, Esq.
Joshua C. Cohan, Esq.
SALTZ MONGELUZZI & BENDESKY P.C.
One Liberty Place
1650 Market St, 52nd Floor
Philadelphia, PA 19103
Telephone: (215) 575-3887
Facsimile: (215) 496-0999
E-mail: lcohan@smbb.com
jcohan@smbb.com
3M COMPANY: Mask Sues Over Injury After AFFF Products' Usage
------------------------------------------------------------
RICHARD MASK, individually and on behalf of all others similarly
situated, Plaintiff v. 3M COMPANY f/k/a Minnesota Mining and
Manufacturing Company; ACG CHEMICALS AMERICAS INC.; AMEREX
CORPORATION; ARCHROMA U.S. INC.; ARKEMA, INC.; BUCKEYE FIRE
EQUIPMENT COMPANY; CARRIER GLOBAL CORPORATION; CHEMDESIGN PRODUCTS,
INC.; CHEMGUARD, INC.; CHEMICALS, INC.; CHEMOURS COMPANY FC, LLC;
CHUBB FIRE, LTD; CLARIANT CORP.; CORTEVA, INC.; DEEPWATER
CHEMICALS, INC.; DU PONT DE NEMOURS INC. f/k/a DOWDUPONT INC.;
DYNAX CORPORATION; E.I. DU PONT DE NEMOURS AND COMPANY;
KIDDE-FENWAL, INC.; KIDDE PLC; NATION FORD CHEMICAL COMPANY;
NATIONAL FOAM, INC.; THE CHEMOURS COMPANY; TYCO FIRE PRODUCTS LP,
as successor-in-interest to The Ansul Company; UNITED TECHNOLOGIES
CORPORATION; UTC FIRE & SECURITY AMERICAS CORPORATION, INC. f/k/a
GE Interlogix, Inc., Defendants, Case No. 2:21-cv-01591-RMG
(D.S.C., May 27, 2021) is a class action against the Defendants for
negligence, battery, inadequate warning, design defect, strict
liability, fraudulent concealment, breach of express and implied
warranties, and wantonness.
The case arises from a personal injury sustained by the Plaintiff
as a result of his exposure to the Defendants' aqueous film forming
foam (AFFF) products containing synthetic, toxic per- and
polyfluoroalkyl substances collectively known as PFAS. The
Defendants failed to use reasonable and appropriate care in the
design, manufacture, labeling, warning, instruction, training,
selling, marketing, and distribution of their PFAS-containing AFFF
products and also failed to warn public entities and firefighter
trainees, including the Plaintiff, who they knew would foreseeably
come into contact with their AFFF products that use of and/or
exposure to the products would pose a danger to human health. Due
to inadequate warning, the Plaintiff was exposed to toxic chemicals
and developed serious medical conditions and complications, the
suit alleges.
3M Company, f/k/a Minnesota Mining and Manufacturing Co., is a
multinational conglomerate corporation and designer, marketer,
developer, manufacturer, distributor of firefighting equipment,
including those with AFFF. It is located at 3M Center, St. Paul.
Minnesota.
ACG Chemicals Americas Inc. is a manufacturer of chemical products
based in Exton, Pennsylvania.
Amerex Corporation is a manufacturer of firefighting products based
in Trussville, Alabama.
Archroma U.S. Inc. is a global specialty chemicals company
headquartered in Charlotte, North Carolina.
Arkema, Inc. is a diversified chemicals manufacturer in North
America, based in King of Prussia, Pennsylvania.
Buckeye Fire Equipment Co. is a manufacturer of line of handheld
and wheeled fire extinguishers, suppressing foam concentrates &
hardware, and kitchen suppression systems, with principal place of
business located at 110 Kings Road, Mountain, North Carolina.
Carrier Global Corporation is a heating, ventilation, and air
conditioning company based in Palm Beach Gardens, Florida.
Chemdesign Products, Inc. is a chemical toll manufacturing company
based in Marinette, Wisconsin.
Chemguard, Inc. is a manufacturer of fire suppression and specialty
chemicals, including AFFF, with principal place of business located
at One Stanton Street, Marinette, Wisconsin.
Chemicals, Inc. is a chemical manufacturing company based in
Baytown, Texas.
Chemours Company FC, LLC is a manufacturer of titanium
technologies, fluoroproducts and chemical solutions based in
Wilmington, Delaware.
Chubb Fire, Ltd is a provider of security and fire protection
systems based in United Kingdom.
Clariant Corp. is a specialty chemical company based in Charlotte,
North Carolina.
Corteva, Inc. is an American agricultural chemical and seed company
based in Wilmington, Delaware.
Deepwater Chemicals, Inc. is a producer of organic and inorganic
iodine derivatives based in Woodward, Oklahoma.
Du Pont De Nemours Inc., f/k/a DowDuPont Inc., is a chemical
company based in Wilmington, Delaware.
Dynax Corporation is a company that specializes in the production
of fluorochemicals based in Pound Ridge, New York.
E.I Dupont De Nemours & Co. is a provider of agriculture and
specialty products with principal place of business at 1007 Market
Street, Wilmington, Delaware.
Kidde-Fenwal, Inc. is a manufacturer of fire protection systems
based in Ashland, Massachusetts.
Kidde PLC is a manufacturer of fire safety products based in
Mebane, North Carolina.
Nation Ford Chemical Company is a manufacturer of specialty organic
chemicals based in Fort Mill, South Carolina.
National Foam, Inc. is a manufacturer of foam concentrate, foam
proportioning systems, fixed and portable foam firefighting
equipment, with principal place of business located at 350 East
Union Street, West Chester, Pennsylvania.
The Chemours Company is a manufacturer of agricultural chemicals
with principal place of business at 1007 Market Street, Wilmington,
Delaware.
Tyco Fire Products L.P., successor-in-interest to The Ansul
Company, is a manufacturer of water-based fire suppression system
components and ancillary building construction products, including
Ansul brand of AFFF, headquartered at One Stanton Street,
Marinette, Wisconsin.
United Technologies Corporation was an American multinational
conglomerate headquartered in Farmington, Connecticut. It merged
with the Raytheon Company in April 2020 to form Raytheon
Technologies.
UTC Fire & Security Americas Corporation, Inc., f/k/a GE
Interlogix, Inc., is a manufacturer of security and fire control
systems based in Bradenton, Florida. [BN]
The Plaintiff is represented by:
Richard Zgoda, Jr., Esq.
Steven D. Gacovino, Esq.
GACOVINO, LAKE & ASSOCIATES, P.C.
270 West Main Street
Sayville, NY 11782
Telephone: (631) 600-0000
Facsimile: (631) 543-5450
- and –
Gregory A. Cade, Esq.
Gary A. Anderson, Esq.
Kevin B. McKie, Esq.
ENVIRONMENTAL LITIGATION GROUP, P.C.
2160 Highland Avenue South
Birmingham, AL 35205
Telephone: (205) 328-9200
Facsimile: (205) 328-9456
3M COMPANY: Vest Alleges Injury From AFFF Products' Toxic Exposure
------------------------------------------------------------------
ARTHUR VEST, individually and on behalf of all others similarly
situated, Plaintiff v. 3M COMPANY f/k/a Minnesota Mining and
Manufacturing Company; ACG CHEMICALS AMERICAS INC.; AMEREX
CORPORATION; ARCHROMA U.S. INC.; ARKEMA, INC.; BUCKEYE FIRE
EQUIPMENT COMPANY; CARRIER GLOBAL CORPORATION; CHEMDESIGN PRODUCTS,
INC.; CHEMGUARD, INC.; CHEMICALS, INC.; CHEMOURS COMPANY FC, LLC;
CHUBB FIRE, LTD; CLARIANT CORP.; CORTEVA, INC.; DEEPWATER
CHEMICALS, INC.; DU PONT DE NEMOURS INC. f/k/a DOWDUPONT INC.;
DYNAX CORPORATION; E.I. DU PONT DE NEMOURS AND COMPANY;
KIDDE-FENWAL, INC.; KIDDE PLC; NATION FORD CHEMICAL COMPANY;
NATIONAL FOAM, INC.; THE CHEMOURS COMPANY; TYCO FIRE PRODUCTS LP,
as successor-in-interest to The Ansul Company; UNITED TECHNOLOGIES
CORPORATION; UTC FIRE & SECURITY AMERICAS CORPORATION, INC. f/k/a
GE Interlogix, Inc., Defendants, Case No. 2:21-cv-01592-RMG
(D.S.C., May 27, 2021) is a class action against the Defendants for
negligence, battery, inadequate warning, design defect, strict
liability, fraudulent concealment, breach of express and implied
warranties, and wantonness.
The case arises from a personal injury sustained by the Plaintiff
as a result of his exposure to the Defendants' aqueous film forming
foam (AFFF) products containing synthetic, toxic per- and
polyfluoroalkyl substances collectively known as PFAS. The
Defendants failed to use reasonable and appropriate care in the
design, manufacture, labeling, warning, instruction, training,
selling, marketing, and distribution of their PFAS-containing AFFF
products and also failed to warn public entities and firefighter
trainees, including the Plaintiff, who they knew would foreseeably
come into contact with their AFFF products that use of and/or
exposure to the products would pose a danger to human health. Due
to inadequate warning, the Plaintiff was exposed to toxic chemicals
and developed serious medical conditions and complications, the
suit alleges.
3M Company, f/k/a Minnesota Mining and Manufacturing Co., is a
multinational conglomerate corporation and designer, marketer,
developer, manufacturer, distributor of firefighting equipment,
including those with AFFF. It is located at 3M Center, St. Paul.
Minnesota.
ACG Chemicals Americas Inc. is a manufacturer of chemical products
based in Exton, Pennsylvania.
Amerex Corporation is a manufacturer of firefighting products based
in Trussville, Alabama.
Archroma U.S. Inc. is a global specialty chemicals company
headquartered in Charlotte, North Carolina.
Arkema, Inc. is a diversified chemicals manufacturer in North
America, based in King of Prussia, Pennsylvania.
Buckeye Fire Equipment Co. is a manufacturer of line of handheld
and wheeled fire extinguishers, suppressing foam concentrates &
hardware, and kitchen suppression systems, with principal place of
business located at 110 Kings Road, Mountain, North Carolina.
Carrier Global Corporation is a heating, ventilation, and air
conditioning company based in Palm Beach Gardens, Florida.
Chemdesign Products, Inc. is a chemical toll manufacturing company
based in Marinette, Wisconsin.
Chemguard, Inc. is a manufacturer of fire suppression and specialty
chemicals, including AFFF, with principal place of business located
at One Stanton Street, Marinette, Wisconsin.
Chemicals, Inc. is a chemical manufacturing company based in
Baytown, Texas.
Chemours Company FC, LLC is a manufacturer of titanium
technologies, fluoroproducts and chemical solutions based in
Wilmington, Delaware.
Chubb Fire, Ltd is a provider of security and fire protection
systems based in United Kingdom.
Clariant Corp. is a specialty chemical company based in Charlotte,
North Carolina.
Corteva, Inc. is an American agricultural chemical and seed company
based in Wilmington, Delaware.
Deepwater Chemicals, Inc. is a producer of organic and inorganic
iodine derivatives based in Woodward, Oklahoma.
Du Pont De Nemours Inc., f/k/a DowDuPont Inc., is a chemical
company based in Wilmington, Delaware.
Dynax Corporation is a company that specializes in the production
of fluorochemicals based in Pound Ridge, New York.
E.I Dupont De Nemours & Co. is a provider of agriculture and
specialty products with principal place of business at 1007 Market
Street, Wilmington, Delaware.
Kidde-Fenwal, Inc. is a manufacturer of fire protection systems
based in Ashland, Massachusetts.
Kidde PLC is a manufacturer of fire safety products based in
Mebane, North Carolina.
Nation Ford Chemical Company is a manufacturer of specialty organic
chemicals based in Fort Mill, South Carolina.
National Foam, Inc. is a manufacturer of foam concentrate, foam
proportioning systems, fixed and portable foam firefighting
equipment, with principal place of business located at 350 East
Union Street, West Chester, Pennsylvania.
The Chemours Company is a manufacturer of agricultural chemicals
with principal place of business at 1007 Market Street, Wilmington,
Delaware.
Tyco Fire Products L.P., successor-in-interest to The Ansul
Company, is a manufacturer of water-based fire suppression system
components and ancillary building construction products, including
Ansul brand of AFFF, headquartered at One Stanton Street,
Marinette, Wisconsin.
United Technologies Corporation was an American multinational
conglomerate headquartered in Farmington, Connecticut. It merged
with the Raytheon Company in April 2020 to form Raytheon
Technologies.
UTC Fire & Security Americas Corporation, Inc., f/k/a GE
Interlogix, Inc., is a manufacturer of security and fire control
systems based in Bradenton, Florida. [BN]
The Plaintiff is represented by:
Richard Zgoda, Jr., Esq.
Steven D. Gacovino, Esq.
GACOVINO, LAKE & ASSOCIATES, P.C.
270 West Main Street
Sayville, NY 11782
Telephone: (631) 600-0000
Facsimile: (631) 543-5450
- and –
Gregory A. Cade, Esq.
Gary A. Anderson, Esq.
Kevin B. McKie, Esq.
ENVIRONMENTAL LITIGATION GROUP, P.C.
2160 Highland Avenue South
Birmingham, AL 35205
Telephone: (205) 328-9200
Facsimile: (205) 328-9456
ALTA DEVICES: Court Grants Bid to Certify Class in Gunderson Suit
-----------------------------------------------------------------
In the case, SCOTT GUNDERSON, DANIEL PATTERSON, BEN LENAIL, BRENDAN
KAYES, JAMES BUSTAMANTE, OCTAVI SEMONIN and ANNETT SUESS, on behalf
of themselves and on behalf of all other persons similarly
situated, Plaintiffs v. ALTA DEVICES, INC., Defendants, Case No.
5:19-cv-08017-BLF (N.D. Cal.), Judge Beth Labson Freeman of the
U.S. District Court for the Northern District of California, San
Jose Division, granted the Plaintiffs' unopposed Motion for Class
Certification.
In the putative class action, the named Plaintiffs seek to recover
60 days' wages and benefits from Alta Devices in connection with
the Defendant's alleged violations of federal and state law. The
Plaintiffs allege the Defendant violated the Worker Adjustment and
Retraining Notification Act ("Federal WARN Act"), 29 U.S.C. Section
2101, et seq., and California Labor Code Sections 1400-1408
("California WARN Act") when it terminated the Plaintiffs'
employment, and the employment of the proposed Class, without
providing the 60 days' notice the WARN Acts require.
The Defendant operated a facility at 545 Oakmead Parkway,
Sunnyvale, California until the Facility was closed on Oct. 21,
2019. It employed the Plaintiffs and the members of the proposed
Class at that Facility until it closed. The Plaintiffs claim the
Defendant unlawfully terminated them (and the proposed Class)
because these terminations occurred without cause or the 60 days'
advance written notice required by the WARN Acts. They argue this
proposed Class contains between 240 and 300 of the Defendant's
former employees.
On Dec. 6, 2019, the Plaintiffs filed the action against the
Defendant alleging violations of the WARN Acts. They filed an
amended complaint on June 23, 2020, and the Defendant filed its
answer on July 7, 2020.
Before the Court is the Plaintiffs' unopposed Motion for Class
Certification. Pursuant to Federal Rule of Civil Procedure
23(b)(3), the Plaintiffs seek to certify a single class: The
Defendant's former employees who reported to a certain facility and
were laid off, furloughed, and/or terminated when that facility
closed. They also seek their appointment as the representatives of
the proposed Class and the appointment of Lankenau & Miller, LLP,
The Gardner Firm, P.C., and Cotchett, Pitre & McCarthy, LLP as the
counsel for the Class.
The Defendant did not file an opposition to the Plaintiffs' motion,
which the Plaintiffs noted in their Reply brief.
Pursuant to Civil Local Rule 7-1(b), Judge Freeman finds that the
Plaintiffs' Motion is appropriate for determination without oral
argument, and the June 24, 2021 hearing is vacated.
The Plaintiffs seek certification of a single class defined as:
"All former employees of Alta Devices, Inc. who worked at or
reported to the facility located at 545 Oakmead Pkwy, Sunnyvale, CA
94085 (the Facility) until they were laid off, furloughed and/or
terminated, without cause on their part, on or about October 21,
2019, within thirty days of that date or thereafter, as part of, or
as the reasonably expected consequence of, the mass layoff and/or
plant closing occurring on or about October 21, 2019, or
thereafter, and who do not file a timely request to opt-out of the
class."
Judge Freeman is persuaded by the Plaintiffs' declarations and
arguments, and so agrees that it is appropriate to certify the
proposed Class under Rule 23(b)(3). She finds that each of the
Rule 23(a) requirements (numerosity, commonality, typicality, and
adequacy) is satisfied. She also finds that the Plaintiffs have
satisfied the two conditions in addition to the Rule 23(a)
prerequisites: Common questions must predominate over any questions
affecting only individual members, and class resolution must be
superior to other available methods for the fair and efficient
adjudication of the controversy.
Turning to the appointment of the Lead Counsel, Judge Freeman finds
that the Plaintiffs have retained highly capable counsel with
extensive experience in prosecuting Federal WARN Act class actions.
Accordingly, and without any opposition, she finds that Lankenau &
Miller, LLP, The Gardner Firm, P.C., and Cotchett, Pitre &
McCarthy, LLP are adequate counsel under Rule 23(g)(1) and (4).
Finally, the Judge has reviewed the Plaintiffs' proposed class
notice and notice plan. She says, their proposed notice to the
potential Class members clearly states the nature of the action,
the definition of the class, and the claims and defenses of both
the Plaintiffs and the Defendant. The Plaintiffs' proposed notice
further informs the potential Class member receiving notice that
they may enter an appearance; they may be excluded from the Class
by the Court upon request; the way in which they may request
exclusion; and the binding effect of a judgment for or against the
Class. Accordingly, the Judge approves the form and manner of
notice to the Class as proposed by the Plaintiffs via first class
mail with prepaid postage to all members of the proposed Class.
For the foregoing reasons, Judge Freeman granted the Plaintiffs'
Motion for Class Certification of the Class. She also granted the
Plaintiffs' Motion to appoint Plaintiffs Scott Gunderson, Daniel
Patterson, Ben Lenail, Brendan Kayes, James Bustamante, Octavi
Semonin, and Annett Suess as the class representatives. Lankenau &
Miller, LLP, The Gardner Firm, P.C. and the Cotchett, Pitre &
McCarthy, LLP are appointed as the co-class counsel.
The Judge further granted the Plaintiffs' Motion for the Court's
approval of the form and manner of notice to the Class. No later
than five business days following entry of the Order, the Defendant
will provide the Class Counsel with an electronic spreadsheet
containing the names and last known addresses of the former
employees encompassed by the Class as defined. The Class Counsel
will mail the Notice, First Class postage prepaid, within 10
business days of receiving the Class Spreadsheet, to the proposed
members of the Class at their last known addresses as shown on the
Class Spreadsheet.
Class members who wish to opt-out of the Class in the matter must
complete the opt-out form, included with the Class Notice
(attached), and must sign and mail that opt-out form to The Gardner
Firm, P.C., P.O. Box 3103; Mobile, Alabama 36652, Attn: Mary E.
Olsen -- so that it is received by Ms. Olsen by no later than 35
days after the date on which the class notice was mailed. The date
of the opt-out deadline will be included in the Class Notice. All
requests for exclusion received after that date will not be
effective, and any person who sends a late request will be a member
of the Class and will be bound in the same way and to the same
extent as all other Class Members.
Within five business days after the last date on which a Class
Member may timely opt-out, the Class Counsel will serve and file a
sworn statement listing the names of any persons who have timely
opted out of the Class.
A full-text copy of the Court's May 19, 2021 Order is available at
https://tinyurl.com/b4nbbu6u from Leagle.com.
ANN ARBOR, MI: Bid for Class-Action Status on Water Charges Denied
------------------------------------------------------------------
Ryan Stanton at mlive.com reports that a lawsuit over Ann Arbor's
water and sewer rates can't go forward as a class action, a judge
ruled.
Washtenaw County Circuit Court Judge Archie Brown issued an order
in the case Wednesday, May 19, denying the plaintiffs' request for
class-action certification.
The case is not over, but now there are only two plaintiffs --
ratepayers Sandra Hahn and Robert Sharp -- unless Brown's decision
is overturned on appeal.
Attorneys from the Royal Oak law firm Kickham Hanley PLLC brought
the case against Ann Arbor last year after filing similar lawsuits
against several other Michigan municipalities.
They hoped to be granted class-action status, arguing there were
about 125,000 impacted Ann Arbor water customers and the city owed
ratepayers tens of millions of dollars.
The lawsuit alleged the city accumulated tens of millions of
dollars since 2014 by imposing unlawful overcharges "far in excess"
of what was necessary to cover the city's actual costs of providing
water and sewer services.
Lawsuit claims Ann Arbor owes utility customers tens of millions of
dollars in refunds
City officials have maintained the city's rising utility rates over
the last several years are set at levels designed to cover
increasing operational costs and to build up cash reserves to
finance large capital projects -- like the upcoming rebuilding of a
large portion of the city's water treatment plant on Sunset Road, a
project that could cost close to $100 million.
Incrementally building up cash for capital projects helps lessen
the city's debt load and corresponding interest payments on bond
debt, city officials maintain.
City Attorney Stephen Postema declined to comment on this ruling,
saying the case is still in litigation and he'll let the judge's
order speak for itself.
Greg Hanley, an attorney for the plaintiffs, did not respond to a
request for comment.
Claims made by the plaintiffs in court documents last year
suggested there were about $37 million in water and sewer rate
overcharges. The judge's latest order references a higher claim "in
excess of $42 million."
Brown ruled the plaintiffs "have not pled a valid underlying cause
of action" that the city has overcharged water and sewer customers
as the lawsuit claims.
Even if they did, the case still did not meet the requirements for
class certification, he determined.
"Plaintiffs have not sufficiently defined the class, the members of
the class, or identified any objective criteria to reasonably
estimate the number or identify of members," the judge ruled.
While the plaintiffs argued members of the class were the city's
ratepayers and the city could identify how much each parcel of
property paid for water and sewer services, that does not identify
the actual multiple ratepayers at each property since 2014, Brown
wrote in his order, arguing the plaintiffs did not consider the
transient nature of the city.
For example, there could be seven different ratepayers for one
address if the utility account name changed each year since 2014,
leaving six past ratepayers without notice they could be among the
class, Brown wrote, arguing the plaintiffs were not fairly and
adequately protecting the interests of the entire class of
ratepayers, only current ratepayers.
Of 30,850 properties, 22,188 have transferred ownership since 2014
and there have been 23,978 utility account name changes, the city
stated in court, noting mailing notices to service addresses would
only give notice to current ratepayers.
The case is scheduled for further evaluation in June 2022,
according to the court's calendar, which also shows a settlement
conference scheduled for June 2023 before a jury trial could
potentially begin in July 2023. [GN]
AVERTEST LLC: Gonzalez to File Notice of Constitutional Question
----------------------------------------------------------------
In the case, JUSTIN GONZALEZ, et al., Plaintiffs v. AVERTEST, LLC,
Defendant, Case No. 4:21-CV-403 PLC (E.D. Mo.), Magistrate Judge
Patricia L. Cohen of the U.S. District Court for the Eastern
District of Missouri, Eastern Division, ordered the Plaintiff to
file a proposed Notice of Constitutional Question and provide
notice to the Attorney General of Missouri.
The matter is before the Court on the parties' responses to the
Court's Order of May 10, 2021. In the May 10 Order, the Court
directed Plaintiffs Justin Gonzalez and Darrell Tullock and
Defendant Avertest LLC to "file memoranda, including argument and
citation of authority, addressing whether compliance with Rule
5.1(a)(1)(B), Rule 5.1(b), and 28 U.S.C. Section 2403(b) is
required" in light of the Plaintiffs' challenge to the
constitutionality of amendments to the Missouri Merchandising
Practices Act (MMPA), Mo. Rev. Stat. Section 407.010, et seq.
In response to the May 10 Order, the Plaintiffs concede that the
first amended class action complaint draws into question the
constitutionality of a state statute, specifically the aspect
regarding the retrospective application of the amendment to the
MMPA where such amendments impair the Plaintiffs' and the Class
Members' substantive rights that accrued prior to the amendments'
passage. Along with their response, the Plaintiffs submitted a
proposed Notice of Constitutional Question. The Defendant agrees
that the amended class action complaint clearly draws the
constitutionality of Mo. Rev. Stat. Section 407.025.3 into
question, thereby triggering the requirements of Rule 5.1.
Under the circumstances and after careful consideration, Judge
Cohen ordered the Plaintiff to file the proposed Notice of
Constitutional Question and provide notice to the Attorney General
of Missouri in accordance with Federal Rules of Civil Procedure
5.1(a)(1) & (2). Pursuant to 28 U.S.C. Section 2403, the Judge
certified to the Attorney General of Missouri that "a Missouri
statute has been constitutionally questioned," in part, by an
allegation, specifically paragraph 145, in the Plaintiffs' first
amended class action complaint,
By June 2, 2021, the Attorney General of Missouri will file a
memorandum advising the Court and parties whether Missouri intends
to seek intervention in the lawsuit. If the Attorney General of
Missouri intends to seek intervention, he will file material
seeking intervention by June 16, 2021.
The parties will file, within 14 days after the Attorney General of
Missouri files material in response to the Order, their responses
to the Attorney General's material.
The Judge vacated the Rule 16 conference scheduled for June 2,
2021, to be reset after the Attorney General of Missouri has had
adequate opportunity to intervene.
A full-text copy of the Court's May 19, 2021 Memorandum & Order is
available at https://tinyurl.com/bf8eke94 from Leagle.com.
BAGELCODE USA: Engelbretson Stayed Pending Ruling of MDL Transfer
-----------------------------------------------------------------
Judge James L. Robar of the U.S. District Court for the Western
District of Washington, Seattle, signed the parties' stipulation
and order to stay the proceedings in the case, CLINT ENGELBRETSON,
individually and on behalf of all others similarly situated,
Plaintiff v. BAGELCODE USA, INC., a Washington corporation; GOOGLE
LLC, a Delaware limited liability company; and GOOGLE PAYMENT
CORP., a Delaware corporation, Defendants, Case No.
2:21-cv-00296-JLR (W.D. Wash.).
The Stipulation is made and entered into by and between the
Parties, in order to request a stay of proceedings in the action,
including the Defendants' deadline to respond to the Plaintiff's
Class Action Complaint, filed on March 5, 2021. The Parties
request a stay pending a decision by the United States Judicial
Panel on Multidistrict Litigation ("JPML") in the case styled In Re
Google Play Store Simulated Casino-Style Games Litigation, MDL Case
No. 3001.
The Plaintiff filed his Class Action Complaint on March 5, 2021.
The Defendants' deadline to file an answer or a responsive pleading
to the Complaint was May 24, 2021.
On April 19, 2021, the Court issued an Order granting the Parties'
Stipulation to vacate the deadlines relating to initial
disclosures, joint status report, and class certification.
On March 29, 2021, Plaintiff Maria Valencia Torres and Plaintiff
Michael Brown filed a Motion for Transfer of Actions Pursuant to 28
U.S.C. Section 1407 for Centralized Pretrial Proceedings to the
Northern District of California in the litigation styled In Re
Google Play Store Simulated Casino-Style Games, MDL Case No. 3001,
pending before the JPML. The Transfer Motion requested that the
cases listed on the Chart be centralized in the Northern District
of California. The hearing on the Transfer Motion was set for May
27, 2021.
There are overlapping issues between the case and the cases at
issue before the JPML, and Defendants Google LLC and Google Payment
Corp. intend to file a "Notice of Tag-Along Case" in the JPML
litigation. On May 17, 2021, all Parties met and conferred and
agreed that a stay is necessary and appropriate to preserve the
Court's resources and achieve the judicial economies that underlie
28 U.S.C. Section 1407, and that the burden of duplicative
litigation weighs heavily in favor of staying proceedings pending a
resolution of the MDL transfer. The Parties will advise the Court
promptly upon the ruling on the Transfer Motion.
The Stipulation is made for good cause, without intention of delay,
and without in any way impacting or prejudicing any of the Parties'
respective rights. If for any reason the Court declines to stay
these proceedings, the Parties have agreed that the Defendants may
file any motion, responsive pleading or otherwise respond to the
Plaintiff's Complaint within two weeks from the date the Court
denies this Stipulation. It is the first stipulation requesting a
stay of proceedings in the action.
Therefore, in consideration of the foregoing, the Parties, by and
through their respective counsel, stipulate and agree as follows:
1. The proceedings of the present case are stayed, pending
the issuance of a decision by the United States Judicial Panel on
Multidistrict Litigation in the case styled In Re Google Play Store
Simulated Casino-Style Games Litigation, MDL Case No. 3001. The
Parties will promptly notify the Court of the JPML decision
regarding the Transfer Motion.
2. If the Court for any reason declines to grant the
Stipulation, the Defendants will have an extension of time of two
weeks, starting from the date of the order denying this
Stipulation, to file any motion, responsive pleading or otherwise
respond to the Plaintiff's Complaint.
Pursuant to the Stipulation, Judge Robar so ordered. The
proceedings of the present case are stayed, pending the issuance of
a decision by the United States Judicial Panel on Multidistrict
Litigation in the case styled In Re Google Play Store Simulated
Casino-Style Games Litigation, MDL Case No. 3001. The Parties will
promptly notify the Court of the JPML decision regarding the
Transfer Motion.
A full-text copy of the Court's May 19, 2021 Order is available at
https://tinyurl.com/ep2e6v2a from Leagle.com.
BANK OF AMERICA: Summary Judgment Ruling in Leyse TCPA Suit Upheld
------------------------------------------------------------------
In the case, MARK LEYSE, Individually and on Behalf of All Others
Similarly Situated, Appellant v. BANK OF AMERICA NATIONAL
ASSOCIATION, Case No. 20-1666 (3d Cir.), the U.S. Court of Appeals
for the Third Circuit affirms the District Court's order granting
the Defendant's motion for summary judgment.
Plaintiff Mark Leyse brought an action under the Telephone Consumer
Protection Act (TCPA) after receiving a prerecorded telemarketing
call on the landline he shares with his roommate. Leyse's
complaint contains a single count for violation of the TCPA.
On March 11, 2005, DialAmerica Marketing, Inc., on behalf of Bank
of America, called the residential telephone line that Leyse shared
with his roommate, Genevieve Dutriaux. Leyse answered the call.
DialAmerica did not have a sales representative available to handle
the call when it was made, and therefore it played the following
prerecorded message: "This call is on behalf of Bank of America at
1-800-201-6872 for telemarketing purposes. We're sorry we missed
you and we will try calling back at another time."
At the time of the call, Leyse worked as an investigator for
Attorney Todd C. Bank, helping him prepare TCPA lawsuits. In this
role, Leyse made investigative calls to companies to determine the
number and frequency of the calls they made. During these calls,
Leyse used a false name, withheld the true purpose of the calls,
and secretly recorded them. He then provided the recordings to
Bank to use in TCPA suits such as this one.
After the March 11 call, Leyse placed and recorded over 20 calls to
DialAmerica and provided the recordings to Bank. During these
calls, Leyse used a false name and employer and asked DialAmerica
about the services it provided, the numbers it called, the dialing
system it used, the number of recorded messages it left per day,
and whether the representatives knew that the call violated the
TCPA. When twice asked by DialAmerica representatives if he wanted
to be added to their Do-Not-Call list, Leyse declined.
Mr. Leyse sued Bank of America on Dec. 5, 2011. The First Amended
Class Action Complaint contains a single count of violation of the
TCPA. Leyse does not allege that he suffered any annoyance or
nuisance from the call and seeks only statutory damages.
Following prolonged discovery, Bank of America moved for summary
judgment, arguing that (1) Leyse lacked Article III standing to sue
under the TCPA, (2) the call was exempt from the TCPA under FCC
rules because the parties had an established business relationship
in that Leyse was a customer of Bank of America, and (3) the
content of the recorded message did not violate the TCPA. The
District Court agreed with Bank of America and granted summary
judgment in its favor on all three grounds.
The District Court found that Leyse failed to establish Article III
standing to sue under the TCPA. It reasoned that Leyse did not
claim that he suffered nuisance, annoyance, inconvenience, wasted
time, or any other such injury. He only asserts a bare procedural
violation that resulted in no harm. Accordingly, the District
Court held that Leyse failed to establish an injury-in-fact, as
required to demonstrate standing to sue under Article III of the
United States Constitution.
On appeal, Leyse argues that, with respect to the TCPA, Article III
standing does not require any allegations of harm beyond the
statutory violations themselves.
The Third Circuit declines to adopt such an absolute rule of
standing with respect to the TCPA. It agrees with the District
Court's holding. The Third Circuit explains that in a prior
appeal in this matter, it held that the TCPA is intended to prevent
harm stemming from nuisance, invasions of privacy, and other such
injuries. Therefore, Leyse must allege one of those injuries that
the TCPA is intended to prevent. The District Court found that
Leyse did not assert such an injury. Leyse does not dispute this
finding. Accordingly, Leyse cannot show a concrete harm that is
necessary to demonstrate an injury-in-fact.
Such a demonstration is required to establish Article III standing
to sue under the TCPA. Because it holds that Leyse lacks standing,
the third Circuit need not address Leyse's additional challenges to
the District Court's grant of summary judgment against him.
For these reasons, the Third Circuit affirms the District Court's
grant of summary judgment in Bank of America's favor.
A full-text copy of the Court's May 19, 2021 Opinion is available
at https://tinyurl.com/rm8jcyst from Leagle.com.
BANKSIA HILL: Faces Suit From Ex-Inmates Over Children Treatment
----------------------------------------------------------------
Sarah Smith at nit.com.au reports that former inmates of the
Banksia Hill Juvenile Detention Centre are planning a class action
lawsuit over conditions at the centre that observers say condemn
children as young as 11 to a life of trauma and disadvantage.
Solicitor Stewart Levitt is the lead lawyer on the case and said
the alleged treatment of children at the centre is a failure of the
State Government's duty of care to vulnerable children.
"Most of the children are intellectually challenged. They're
disproportionately Indigenous, many have conditions like Foetal
Alcohol Syndrome and Attention Deficit Syndrome and are otherwise
intellectually disadvantaged," he said.
"They've come from families which, in many instances, haven't been
able to gain sufficient support for all sorts of institutional
reasons.
"And [the] State, rather than support them, has condemned them."
Levitt said though he hopes to achieve compensation for the
complainants, ultimately he wants to change the system.
"The best-case outcome is a complete rethink by the Western
Australian Government of its obligations and responsibilities to
children who are effectively its wards."
A 2017 report by Amnesty International on Banksia Hill claimed the
conditions experienced by two juvenile detainees in the solitary
confinement unit at the facility were tantamount to torture.
An independent review in 2018 by the Office of the Inspector of
Custodial Services (OICS) upheld some claims made in the Amnesty
report but rejected the more serious allegations of torture.
In their report, OICS said education at the centre had been
"substandard for all detainees for too long" and that inmates
"might well have benefitted from greater access to programs,
services and psychological counselling".
The report criticised inadequate record-keeping for the use of
restraints, and said the failure meant the Department of Justice
"could not show that their use of restraints was justified".
The report called for a comprehensive review of the Young Offenders
Act 1994 (WA) and the Young Offenders Regulations 1995 (WA) that
govern confinement.
It called the laws "obsolete, outdated, and inconsistent" and that
they fail to meet international standards.
The laws, the review said, allow for regimes more onerous than
solitary confinement if they are enacted under a different name.
The Act and the Regulations have not been substantially updated
since the OICS's report was released in 2018.
Gerry Georgatos of the National Suicide Prevention and Trauma
Recovery Project spent eight weeks working intensively with young
people in Banksia Hill during 2020.
He said in his experience, the children coming out of Banksia Hill
are worse off than when they entered.
"The reality is . . . . they'll be incarcerated multiple times and
are set up for a life of cyclical disadvantage," he said.
"[Banksia Hill] is Dickensian, it's like a children's poorhouse."
"The services on the inside are substandard, the provision of
education is such low quality and low calibre it leaves them far
behind."
Georgatos believes legal action is justified.
"In the end, class actions are the way to go and I hope there's
many more," he said.
"We're going to actually improve institutions and bring them to
account. It may galvanise the governments to invest more and make
use of proper restorative facilities."
Rodney Dillon, Amnesty International Australia‘s Indigenous
Rights Advisor, says the organisation has concerns about the
treatment of inmates at Banksia Hill.
"Amnesty International Australia is still concerned about
conditions at Banksia Hill - not least because there hasn't been an
Office of the Inspector of Custodial Services inspection since our
report in 2018, so we have to rely on the experiences and stories
of the affected children to know if anything has changed," Dillon
said.
Dillon says the organisation is particularly concerned about the
over-reliance on handcuffs and the centre's female inmates.
"Because there are so few girls held there, and in youth detention
in general, they are also effectively held in solitary
confinement-like conditions because there is not suitable
accommodation for them," he said.
"More than this though, we know that putting kids as young as 10
into detention condemns them to the quicksand of the youth justice
system - all the international experts agree that the minimum age
of criminal responsibility should be at least 14."
The WA Department of Justice declined to comment on the lawsuit,
which is expected to commence before the end of the year.
Aboriginal Affairs Minister Stephen Dawson and Corrective Services
Minister Bill Johnston have been contacted for comment. [GN]
BAYER CROPSCIENCE: Bailey Sues Over High Crop Inputs' Prices
------------------------------------------------------------
KEITH LYLE BAILEY, individually and as Trustee of the EFFIE BAILEY
LAND TRUST, on behalf of themselves and all others similarly
situated, Plaintiffs v. BAYER CROPSCIENCE LP, BAYER CROPSCIENCE,
INC., CORTEVA, INC., CARGILL INCORPORATED, BASF CORPORATION,
SYNGENTA CORPORATION, WINFIELD SOLUTIONS, LLC, UNIVAR SOLUTIONS,
INC., PIONEER HI-BRED INTERNATIONAL, INC., FEDERATED COOPERATIVES
LTD., CHS INC., NUTRIEN AG SOLUTIONS INC., GROWMARK INC., SIMPLOT
AB RETAIL SUB, INC., and TENKOZ, INC., Defendants, Case No.
3:21-cv-00512 (S.D. Ill., May 27, 2021) is a class action against
the Defendants for violations of Section 1 of the Sherman Act,
state antitrust statutes, and state consumer protection statutes.
The case arises from an unlawful agreement between Defendants,
manufacturers, wholesalers, and retailers of seeds and crop
protection chemicals to artificially increase and fix the prices of
these chemicals such as fungicides, herbicides, and insecticides
used by farmers. The cost of seeds and crop protection chemicals is
increasing at a significantly faster rate than profits from
farmers' crop yields. The skyrocketing prices are causing farmers
to take on operating debt and often forcing them into bankruptcy,
creating a crisis situation in the agriculture community for
American farmers who are critical to the nation's food supply.
Neither the cost increases nor the price disparities are
attributable to any independent legitimate cause, such as weather
or other factors.
As a direct and proximate result of the Defendants' alleged
anticompetitive conduct, the Defendants have maintained
supra-competitive prices for crop chemicals by denying farmers
access to accurate pricing information and have injured farmers by
forcing farmers to accept opaque price increases that drastically
outweigh any increase in crop yields or market prices.
Bayer Cropscience LP is a crop science company based in Saint
Louis, Missouri.
Bayer Cropscience, Inc. is a wholly-owned subsidiary of Bayer AG
headquartered in St. Louis, Missouri.
Corteva, Inc. is a major American agricultural chemical and seed
company based in Wilmington, Delaware.
Cargill Incorporated is an American privately held global food
corporation based in Minnetonka, Minnesota.
BASF Corporation is a chemical company in Florham Park, New
Jersey.
Syngenta Corporation is a company that provides crop protection
products based in Wilmington, Delaware.
Winfield Solutions, LLC is a manufacturer and distributor of seed
and crop protection products, headquartered in Saint Paul,
Minnesota.
Univar Solutions, Inc. is a global chemical and ingredients
distributor based in Downers Grove, Illinois.
Pioneer Hi-Bred International, Inc. is a producer of seeds for
agriculture based in Johnston, Iowa.
Federated Cooperatives Ltd. is a co-operative federation providing
procurement and distribution to member co-operatives in Western
Canada.
CHS Inc. is a Fortune 100 business owned by United States
agricultural cooperatives, farmers, ranchers, and thousands of
preferred stock holders, headquartered in Inver Grove Heights,
Minnesota.
Nutrien AG Solutions Inc. is an agriculture inputs company based in
Colby, Kansas.
Growmark Inc. is a regional agricultural supply cooperative based
in Illinois.
Simplot AB Retail Sub, Inc. is a farm supplies company based in
Rayville, Louisiana.
Tenkoz, Inc. is a distributor of crop protection products based in
Alpharetta, Georgia. [BN]
The Plaintiffs are represented by:
Thomas M. Sobol, Esq.
Lauren Guth Barnes, Esq.
Abbye R. K. Ognibene, Esq.
HAGENS BERMAN SOBOL SHAPIRO LLP
55 Cambridge Parkway, Suite 301
Cambridge, MA 02142
Telephone: (617) 482-3700
Facsimile: (617) 482-3003
E-mail: tom@hbsslaw.com
lauren@hbsslaw.com
abbyeo@hbsslaw.com
- and –
Daniel J. Kurowski, Esq.
HAGENS BERMAN SOBOL SHAPIRO LLP
455 North Cityfront Plaza Drive, Suite 2410
Chicago, IL 60611
Telephone: (708) 628-4949
Facsimile: (708) 628-4950
E-mail: dank@hbsslaw.com
- and –
James R. Dugan, II, Esq.
David S. Scalia, Esq.
TerriAnne Benedetto, Esq.
THE DUGAN LAW FIRM
One Canal Place
365 Canal Street, Suite 1000
New Orleans, LA 70130
Telephone: (504) 648-0180
Facsimile: (504) 648-0181
E-mail: jdugan@dugan-lawfirm.com
dscalia@dugan-lawfirm.com
tbenedetto@dugan-lawfirm.com
CANAAN INC: Levi & Korsinsky Reminds of July 14 Deadline
--------------------------------------------------------
Levi & Korsinsky, LLP announces that a class action lawsuit has
commenced on behalf of shareholders of Canaan Inc. Shareholders
interested in serving as lead plaintiff have until the deadline
listed to petition the court. Further details about the case can be
found at the link provided. There is no cost or obligation to you.
CAN Shareholders Click Here:
https://www.zlk.com/pslra-1/canaan-inc-loss-submission-form?prid=15952&wire=1
Canaan Inc. (NASDAQ:CAN)
CAN Lawsuit on behalf of: investors who purchased February 10, 2021
- April 9, 2021
Lead Plaintiff Deadline : June 14, 2021
TO LEARN MORE, VISIT:
https://www.zlk.com/pslra-1/canaan-inc-loss-submission-form?prid=15952&wire=1
According to the filed complaint, during the class period, Canaan
Inc. made materially false and/or misleading statements and/or
failed to disclose that: they concealed that due to ongoing supply
chain disruptions and the introduction of the Company's
next-generation A12 series bitcoin mining machines - which had
cannibalized sales of the older product offerings - Canaan's 4Q20
sales had declined more than 93% year-over-year compared to its
fourth quarter fiscal year 2019 ("4Q19") sales and more than 93%
quarter-over-quarter compared to its third quarter FY20 ("3Q20")
sales.
Levi & Korsinsky is a nationally recognized firm with offices in
New York, California, Connecticut, and Washington D.C. The firm's
attorneys have extensive expertise and experience representing
investors in securities litigation and have recovered hundreds of
millions of dollars for aggrieved shareholders. Attorney
advertising. Prior results do not guarantee similar outcomes.
CONTACT:
Levi & Korsinsky, LLP
Joseph E. Levi, Esq.
55 Broadway, 10th Floor
New York, NY 10006
jlevi@levikorsinsky.com
Tel: (212) 363-7500
Fax: (212) 363-7171
www.zlk.com [GN]
CHAMPIGNON BRANDS: Zhang Investor Reminds of June 9 Deadline
------------------------------------------------------------
Zhang Investor Law announces a class action lawsuit on behalf of
shareholders who bought shares of Champignon Brands Inc. (OTC:
SHRMF) between March 27, 2020 and February 17, 2021, inclusive (the
"Class Period").
To join the class action, go to
http://zhanginvestorlaw.com/join-action-form/?slug=champignon-brands-inc&id=2685
or call Sophie Zhang, Esq. toll-free at 800-991-3756 or email
info@zhanginvestorlaw.com for information on the class action.
http://zhanginvestorlaw.com/join-action-form/?slug=champignon-brands-inc&id=2685
If you wish to serve as lead plaintiff, you must move the Court
before the June 9, 2021 Deadline. A lead plaintiff is a
representative party acting on behalf of other class members in
directing the litigation.
According to the lawsuit, defendants throughout the Class Period
made false and/or misleading statements and/or failed to disclose
that- Champignon had undisclosed material weaknesses and
insufficient financial controls; Champignon's previously issued
financial statements were false and unreliable; Champignon's
acquisitions involved an undisclosed related party; as a result of
the foregoing and subsequent reporting delays and issues, the
British Columbia Securities Commission would suspend Champignon's
from trading; and as a result, defendants' statements about
Champignon's business, operations, and prospects, were materially
false and misleading and/or lacked a reasonable basis at all
relevant times. When the true details entered the market, the
lawsuit claims that investors suffered damages.
Lead plaintiff status is not required to seek compensation. You may
retain counsel of your choice. You may remain an absent class
member and take no action at this time.
Zhang Investor Law represents investors worldwide. Attorney
Advertising. Prior results do not guarantee similar outcomes.
Zhang Investor Law P.C.
99 Wall Street, Suite 232
New York, New York 10005
info@zhanginvestorlaw.com
tel: (800) 991-3756 [GN]
CHICAGO TITLE: Cal. App. Reverses Judgment in Ahern Class Suit
--------------------------------------------------------------
In the case, THOMAS AHERN, Plaintiff and Appellant v. CHICAGO TITLE
COMPANY, et al., Defendants and Respondents, Case No. B304119.
(Cal. App.), the Court of Appeals of California for the Second
District, Division Seven, reverses the judgment entered after the
trial court sustained without leave to amend the demurrer of
Chicago Title Co. and Chicago Title Insurance Co. to Ahern's third
amended complaint.
Based on tax advice from his lawyers and accountants, Ahern sold a
fractional tenancy-in-common interest in property on South
Robertson Boulevard in Los Angeles in mid-2006 and reinvested the
net proceeds from that sale (approximately $900,000) in
tenancy-in-common interests in improved real property in Anaheim
(the Amlap property) and San Diego (the Aerovault property), which
had been acquired by BH & Sons, LLC to market to tax-motivated
investors. BH & Sons and its manager, Asset Management Consultants
Inc. (AMC), provided preliminary information packages to qualified
sophisticated investors in connection with their evaluation of the
investment properties. After receiving the preliminary
information, interested investors signed a tenant-in-common
purchase and sale agreement for each property and thereafter
received a property information package (or private placement
memorandum) with due diligence and underwriting material.
Several years later, following a significant decline in the real
estate market, the secured lender foreclosed on the Amlap property,
eliminating the tenancy-in-common investors' interests. The
investment in the Aerovault properly also was a total loss.
Mr. Ahern initially filed the lawsuit in May 2012 against BH &
Sons, AMC and several affiliated attorneys and accountants,
alleging in a 77-page 16-cause-of-action putative class action
complaint that he had been fraudulently induced to enter into the
Amlap investment through the promotional materials developed and
distributed by BH & Sons and AMC.
Mr. Ahern filed a second amended complaint in October 2016.
Chicago Title and CBRE, the property seller's broker, demurred,
contending Ahern's action, filed more than five years after his
investments, was time-barred. Chicago Title and CBRE argued Ahern
was precluded by this court's decision in Stella v. Asset
Management Consultants, Inc. (2017) 8 Cal.App.5th 181 (Stella) from
asserting delayed accrual of his various causes of action and, even
without issue preclusion, Ahern's allegations were insufficient for
application of the delayed discovery rule. The court sustained the
demurrer with leave to amend, ruling, that the judicially noticed
private placement memorandum demonstrates that Ahern should have
been on inquiry notice at the time of investment in 2006.
Mr. Ahern filed his third amended complaint on July 1, 2019. As
pertinent to his central claim of fraud, Ahern alleged: (i) an
"Explanation of Fees" chart provided with every AMC
tenancy-in-common investment, including the Amlap and Aerovault
investments, failed to list syndication fees (that is, fees for
organizing and marketing the tenancy-in-common interests) as a cost
to the investors; (ii) the purchase and sale agreement for the
Amlap property stated the purchase price was $34.55 million, as did
the property information package; (iii) the property information
package identified a commission of $1.3 million for AMC acting as
buyer's side broker and represented it would be paid by the seller;
(iv) in fact, the actual negotiated price for the property,
accepted by the seller, was $33.25 million; that figure was
increased with the consent of the seller to include the commission;
and what was represented to be a commission was, in fact a secret
(and illegal) syndication fee to AMC and others working with it;
(v) the purchase and sale agreement for the Aerovault property
stated the purchase price was $27.885 million, as did the property
information package; (vi) the Aerovault property information
package stated the commission of $1.25 million to be paid to the
buyer's broker would be paid by the seller; (vii) as with the Amlap
property, the true purchase price (and real market value) had been
increased to include the commission, meaning it was paid by the
investors, not the seller; and (viii) the actual sales load for
each investment—the undisclosed markup plus the disclosed
fees—exceeded the amount of capital gains tax Ahern sought to
defer by reinvesting the proceeds from the sale of his South
Robertson Boulevard tenancy-in-common investment.
Chicago Title again demurred, arguing all causes of action alleged
against it were barred by the statute of limitations; the
negligence-based causes of action failed because, as a matter of
law, Chicago Title did not owe Ahern any of the purported duties of
care; and the claims for fraud failed to allege specific facts
necessary to state a valid cause of action.
Argument at the hearing on Chicago Title's demurrer, as well as the
concurrently filed demurrer by CBRE, focused on the adequacy of the
disclosure regarding the $1.3 million commission, that is, whether
Ahern was on notice that it was not actually being paid by the
seller of the property. At the conclusion of the hearing the court
sustained the demurrer without leave to amend, adopting its
tentative ruling.
Referring to its ruling sustaining the demurrers to the second
amended complaint, the court stated that it rejects the Plaintiffs'
argument that they were not on inquiry notice until they consulted
with their attorneys in 2012. It likewise rejects the Plaintiffs'
argument that the commission was not disclosed in the Private
Placement Memorandum. The court sustained the demurrer without
leave to amend, explaining it was unconvinced the defect in the
pleading could be remedied by amendment.
Judgment was entered on Nov. 26, 2019. Ahern filed a timely notice
of appeal.
Mr. Ahern, individually and as the surviving spouse and successor
in interest of Priscilla Ahern, appeals the judgment entered after
the trial court sustained without leave to amend the demurrer of
Chicago Title to Ahern's third amended complaint. Ahern contends
the trial court erred in ruling his allegations of delayed
discovery were inadequate and, as a result, all causes of action
pleaded against Chicago Title were barred by the governing statutes
of limitations. He also argues he alleged sufficient facts to
state causes of action against Chicago Title, a ground for demurrer
not reached by the trial court but asserted on appeal by Chicago
Title. Alternatively, Ahern requests leave to amend to plead
additional facts regarding Chicago Title's role in the investor
fraud at issue in his complaint.
As Ahern alleges in the operative pleading, AMC acted as the
investors' real estate broker in the Amlap and Aerovault
transactions and, as such, was responsible for negotiating the best
purchase price available to the investors. In a conventional real
estate transaction the seller pays the commissions of both the
seller's broker and the buyer's broker from the proceeds of the
sale. The payment of commissions, therefore, reduces the seller's
net proceeds from the sale.
The Court of Appeals opines that the disclosures in the property
information package did not put Ahern on inquiry notice of the
allegedly fraudulent nature of the real estate commission.
Essential to its holding is that, in light of the disclosures in
the private placement memorandum that contradicted the alleged oral
misrepresentations, it is not a case in which the plaintiff
possessed no factual basis for suspicion. In contrast, the market
risk disclosures were not inconsistent with the oral
representations concerning the amount of the sales load and nature
of fees to be paid, as alleged by Ahern, and was apparently
constructed so as not to alert the tenancy-in-common investors to
the real nature of the commission to be paid AMC. On the limited
record before the Court, there was no factual basis for suspicion.
Mr. Ahern argues the third amended complaint does not purport to
ground Chicago Title's liability on its failure to police the
affairs of the parties, but rather alleges Chicago Title, with
knowledge the actual purchase prices had been marked up and
misrepresented to the investors, performed the escrows in a manner
that concealed the misrepresentations -- allegations he insists are
sufficient to establish both breaches of duty and aiding and
abetting fraud by Chicago Title.
The Court of Appeals opines that in light of Ahern's willingness to
amend the pleading to respond to several of the specific objections
raised by Chicago Title, as a practical matter it is most efficient
to permit him to make those amendments and then, if Chicago Title
still wishes to challenge the sufficiency of the allegations by
demurrer, for the trial court to consider the issue in the first
instance. Even if the Court were to agree with Chicago Title's
arguments based on the allegations in the third amended complaint
-- an issue it does not reach -- the defects asserted are not
irremediable; and the proposed amendments are significant enough
that it would grant Ahern leave to amend. It says it makes far
more sense to resolve the pleading issue without multiple
additional steps.
For these reasons, the Court of Appeals reversed the judgment,
including the award of costs; and remands the cause with directions
to the trial court to vacate its order sustaining without leave to
amend the demurrer of Chicago Title to all causes of action
asserted against it and to enter a new order permitting Ahern to
file a fourth amended complaint. Ahern is to recover his costs on
appeal.
A full-text copy of the Court's May 20, 2021 Opinion is available
at https://tinyurl.com/f88bxjwt from Leagle.com.
Catanzarite Law Corporation, Kenneth J. Catanzarite --
kcatanzarite@catanzarite.com -- Nicole M. Catanzarite-Woodward --
ncatanzarite@catanzarite.com -- and Eric V. Anderton --
eanderton@catanzarite.com -- for Plaintiff and Appellant.
McCormick, Barstow, Sheppard Wayte & Carruth, Scott M. Reddie --
Scott.Reddie@mccormickbarstow.com; Fidelity National Law Group and
David B. Owen -- david.owen@fnf.com -- for Defendants and
Respondents Chicago Title Company and Chicago Title Insurance
Company.
CHURCHILL CAPITAL: Levi & Korsinsky Reminds of July 18 Deadline
---------------------------------------------------------------
Levi & Korsinsky, LLP announces that a class action lawsuit has
commenced on behalf of shareholders of Churchill Capital Corp.
Shareholders interested in serving as lead plaintiff have until the
deadline listed to petition the court. Further details about the
case can be found at the link provided. There is no cost or
obligation to you.
CCIV Shareholders Click Here:
https://www.zlk.com/pslra-1/churchill-capital-corp-iv-information-request-form?prid=15952&wire=1
Churchill Capital Corp IV (NYSE:CCIV)
CCIV Lawsuit on behalf of: investors who purchased January 11, 2021
- February 22, 2021
Lead Plaintiff Deadline : June 18, 2021
TO LEARN MORE, VISIT:
https://www.zlk.com/pslra-1/churchill-capital-corp-iv-information-request-form?prid=15952&wire=1
According to the filed complaint, during the class period,
Churchill Capital Corp IV made materially false and/or misleading
statements and/or failed to disclose that: (1) Lucid was not
prepared to deliver vehicles by spring of 2021; (2) Lucid was
projecting a production of 557 vehicles in 2021 instead of the
6,000 vehicles touted in the run-up to the merger with Churchill;
and (3) as a result of the foregoing, Defendants' positive
statements about the Company's business, operations, and prospects
were materially misleading and/or lacked a reasonable basis. When
the true details entered the market, the lawsuit claims that
investors suffered damages.
Levi & Korsinsky is a nationally recognized firm with offices in
New York, California, Connecticut, and Washington D.C. The firm's
attorneys have extensive expertise and experience representing
investors in securities litigation and have recovered hundreds of
millions of dollars for aggrieved shareholders. Attorney
advertising. Prior results do not guarantee similar outcomes.
CONTACT:
Levi & Korsinsky, LLP
Joseph E. Levi, Esq.
55 Broadway, 10th Floor
New York, NY 10006
jlevi@levikorsinsky.com
Tel: (212) 363-7500
Fax: (212) 363-7171
www.zlk.com [GN]
CHURCHILL CAPITAL: RM LAW Discloses Securities Class Action Suit
----------------------------------------------------------------
RM LAW, P.C. announces that a class action lawsuit has been filed
on behalf of all persons or entities that purchased Churchill
Capital Corp IV. ("Churchill Capital" or the "Company") (NYSE:
CCIV) securities during the period from January 11, 2021 through
February 22, 2021, inclusive (the "Class Period").
Churchill Capital shareholders may, no later than July 6, 2021,
move the Court for appointment as a lead plaintiff of the Class. If
you purchased shares of Churchill Capital and would like to learn
more about these claims or if you wish to discuss these matters and
have any questions concerning this announcement or your rights,
contact Richard A. Maniskas, Esquire toll-free at (844) 291-9299 or
to sign up online, click https://www.rmclasslaw.com/case/cciv.
According to the Complaint, the Company made false and misleading
statements to the market. Lucid Motors ("Lucid") was not ready to
produce vehicles by the spring of 2021. Lucid projected 2021
production of just 557 vehicles, despite the 6,000 vehicle
production target touted in the period before its merger with
Churchill Capital. Based on these facts, the Company's public
statements were false and materially misleading throughout the
class period. When the market learned the truth about Churchill
Capital, investors suffered damages.
If you are a member of the class, you may, no later than July 6,
2021, request that the Court appoint you as lead plaintiff of the
class. A lead plaintiff is a representative party that acts on
behalf of other class members in directing the litigation. In order
to be appointed lead plaintiff, the Court must determine that the
class member's claim is typical of the claims of other class
members, and that the class member will adequately represent the
class. Under certain circumstances, one or more class members may
together serve as "lead plaintiff." Your ability to share in any
recovery is not, however, affected by the decision whether or not
to serve as a lead plaintiff. You may retain RM LAW, P.C. or other
counsel of your choice, to serve as your counsel in this action.
For more information regarding this, please contact RM LAW, P.C.
(Richard A. Maniskas, Esquire) toll-free at (844) 291-9299 or by
email at rm@maniskas.com or click
https://www.rmclasslaw.com/case/cciv. For more information about
class action cases in general or to learn more about RM LAW, P.C.
please visit our website by clicking https://www.rmclasslaw.com/.
RM LAW, P.C. is a national shareholder litigation firm. RM LAW,
P.C. is devoted to protecting the interests of individual and
institutional investors in shareholder actions in state and federal
courts nationwide.
CONTACT:
RM LAW, P.C.
Richard A. Maniskas, Esquire [GN]
CIGNA HEALTH: Court Denies Bid to Certify Class in Negron Suit
--------------------------------------------------------------
In the case, KIMBERLY A. NEGRON et al., Plaintiffs, v. CIGNA HEALTH
AND LIFE INSURANCE COMPANY, Defendant, Case No. 3:16-cv-01702 (JAM)
(D. Conn.), Judge Jeffrey Alker Meyer of the U.S. District Court
for the District of Connecticut denies the Plaintiffs' motion for
class certification.
The case is a putative class action involving allegations that
Defendant Cigna fraudulently schemed to overcharge millions of
people for prescription drugs in violation of the terms of their
health plans. The case is now at the class certification stage,
and the Plaintiffs seek to certify classes and sub-classes under
the Employee Retirement Income Security Act ("ERISA") and the
Racketeer Influenced and Corrupt Organizations Act ("RICO").
The prescription drug transactions at issue implicate four
contractual relationships between: (1) an employee and his or her
employer that provides prescription drug benefits under a health
plan; (2) the employer and a health insurance company that
underwrites and/or administers those benefits; (3) the health
insurance company and a pharmacy benefit manager ("PBM") that
assists in administering the benefits; and (4) the PBM and the
pharmacy that fills prescriptions covered under the plan.
The Plaintiffs' health plans describe what they must pay for
prescription drugs in copayments and deductibles, while the
PBM-pharmacy contracts at issue in the case state what a pharmacy
must charge patients, the fee that the PBM will pay the pharmacy
for filling a prescription, and the difference or "spread" between
the patient charge and the pharmacy fee that the PBM will "claw
back" for remittance to the health insurance company. The
Plaintiffs say that Cigna and its PBMs conspired to leverage their
market power to contractually require pharmacies to charge these
exorbitant and unauthorized amounts, in part by threatening to cut
them out of Cigna's network if they refused.
For its part, Cigna argues that the design of these plans is the
result of a "choice that each employer makes." In Cigna's telling,
employers usually pay for prescription drug benefit costs,
including PBM services, through either "traditional pricing" or
"pass-through pricing." For "pass-through pricing," the plan
sponsor's prescription drugs costs are "typically equal to the
pharmacy reimbursement rates," but the fees for the plan's
administrative services are paid on a separate recurring basis.
For "traditional pricing," or "spread pricing," employers
"negotiate predictable drugs costs for the plan year and pay for
PBM services through a differential or 'spread' between the
employer's negotiated cost and the amount of the PBM's (or its
vendor's) network pharmacy reimbursement." Cigna essentially
argues that the Plaintiffs are seeking a "pass-through" pricing
arrangement for plans with terms designed for a "traditional" or
"spread" pricing arrangement.
The Plaintiffs seek to certify two classes, an ERISA class and a
RICO class, each with a subclass. Under their amended class
definitions, the Classes all include individuals residing in the
United States and its territories who were enrolled in a Cigna or
Cigna-affiliate-issued or -administered health benefit plan or
policy that: provided that a member may be required to pay a
portion of the Covered Expenses; and provided that Covered Expenses
are where an individual incurs expenses for charges made by a
Pharmacy; and with respect to deductible payments, did not provide
that the Deductible payment will be based on the plan's
Prescription Drug Charge.
The Subclasses all include individuals residing in the United
States and its territories who were enrolled in a Cigna or
Cigna-affiliate-issued or -administered health benefit plan or
policy that further provided that "in no event will the Copayment
exceed the amount paid by the plan to the Pharmacy."
According to the Plaintiffs, the ERISA Class and Subclass contain
all plan members with ERISA-governed plans that include this
language, and the RICO Class and Subclass contain all plan members
with ERISA or non-ERISA plans that include this language.
The Classes also require each class member to have: paid a
copayment or deductible payment to purchase prescription drugs
pursuant to such plan or policy where according to the transaction
data produced by Cigna in this action: the copayment or deducible
payment exceeds the amount the pharmacy agreed with Cigna or the
pharmacy benefit manager to accept for such drugs on a
transaction-by-transaction basis; and the excess amount is credited
or transferred to Cigna or the pharmacy benefit manager.
The Subclasses require almost the same second condition as the
Classes, except that they only include individuals who paid a
copayment to purchase prescription drugs, not those who paid a
copayment or a deductible payment as for the Classes.
The Plaintiffs interpret the Subclass plans' additional language to
provide a "second uniform contractual agreement that the Class
Members would never pay a copayment more than the amount that Cigna
paid to the pharmacy." They put forth a purportedly simple way to
identify which plans fall into the Classes or Subclasses: plans
with this exact operative language are in the Class or Subclass,
and any plans without this language are not.
Cigna opposes the Plaintiffs' motion for class certification, and
also moves to preclude the declaration and testimony of the
Plaintiffs' expert, Launce B. Mustoe, offered in support of the
Plaintiffs' motion. The Plaintiffs in turn seek to strike certain
arguments made by Cigna in its opposition to their motion for class
certification and its motion to preclude.
Discussion
Before turning to the Plaintiffs' motion for class certification,
Judge Meyer first addresses the subsidiary motions including the
Plaintiffs' motion to strike and Cigna's motion to preclude the
testimony of the Plaintiffs' expert for class certification
purposes.
A. Plaintiffs' Motion to Strike
After the motion for class certification and the motion to preclude
Mustoe's declaration and testimony were filed, the Plaintiffs moved
to strike all of Cigna's arguments and evidence, "now and for all
future proceedings," related to the use of the Document Source Tool
("DST") Reports and their supposed shortcomings and those related
to Cigna's position that the Plaintiffs should have considered
deductibles and out-of-pocket maximums with regard to the
accumulator data. In the alternative, the Plaintiffs ask me to
order Cigna to answer the "previously propounded interrogatories
requesting it to link claims to specific plans, rather than place
that burden on Plaintiffs under Rule 33(d)." They seek to invoke
the Court's powers under Rules 26 and 37 of the Federal Rules of
Civil Procedure, and they also argue that Cigna abused its option
in lieu of answering an interrogatory to produce business records
under Rule 33(d).
Judge Meyer does not consider Cigna's arguments to the extent that
those arguments are related to the Ben Opt Code data field or the
ability to link specific prescription drug transactions to specific
plan language, he also declines to strike all arguments related to
those issues for the duration of the case. As Cigna has
represented that it has produced DST reports with the Ben Opt Code
field, including re-running previously provided DST reports, the
Judge also declines to order the Plaintiffs' alternative request
for relief.
In addition, given that the Plaintiffs have repeatedly asserted
that their theory of the case is based on a
transaction-by-transaction or claim-by-claim basis and that
calculations determining the impact of the accumulation of
deductibles and out-of-pocket maximums are "not required, or, if
they are, they are better performed at some later point in the
litigation after class certification has been granted," and given
that the Plaintiffs were informed of what Cigna views as flaws in
their damages model months before seeking class certification, the
Judge declines to strike Cigna's arguments related to this issue
from the briefing on the motion to preclude and the motion for
class certification. To the extent that the Plaintiffs seek to
explore this issue, they may seek additional discovery.
B. Cigna's Motion to Preclude Expert Testimony of Launce B. Mustoe
The Plaintiffs engaged Mustoe as an expert to provide his opinion
as to "whether it is possible to calculate 'clawbacks' for each
proposed class and subclass on a classwide basis." Mustoe's
declaration defines a clawback to be when a member "pays a
copayment or deductible that exceeds the Pharmacy [R]ate and Cigna
claws back the overcharges." According to Mustoe, clawbacks can be
calculated using the prescription drug transaction data set and the
DST reports produced by Cigna.
Cigna moves to exclude Mustoe's declaration and testimony. Its
argument focuses on two main grounds: (1) Mustoe's methodology to
calculate damages through the clawbacks is "unreliable and
inapposite to the Plaintiff's theory of the case," and (2) Mustoe's
methodology to identify Class and Subclass members is "unreliable
and produces incongruous results."
Judge Meyer finds that Mustoe's declaration and testimony, with
Cigna's objections in mind, can properly be considered when
deciding the Plaintiffs' motion for class certification.
Accordingly, the Judge denies Cigna's motion to preclude the
testimony of Launce B. Mustoe.
C. Plaintiffs' Motion for Class Certification
Judge Meyer denies the Plaintiffs' motion for class certification.
He says because it is evident that there are material differences
in language among the thousands of health plans at issue in this
action that govern whether the Plaintiffs have suffered the same
injury or any injury at all, he concludes that that the Plaintiffs
cannot carry their burden to show that there are questions of law
or fact that are common to the class (much less that common
questions will predominate over questions that require
individual-specific resolution).
Conclusion
For the reasons he set forth, Judge Meyer grants in part and denies
in part the Plaintiffs' motion to strike. He denies Cigna's motion
to preclude the declaration and testimony of the Plaintiffs'
expert, Mustoe. The Judge denies the Plaintiffs' motion for class
certification.
A full-text copy of the Court's May 20, 2021 Order is available at
https://tinyurl.com/rvwvbxus from Leagle.com.
CINCINATTI, OH: Kohler Appeals Denied Bid for Prelim. Injunction
----------------------------------------------------------------
Plaintiff Eric Kohler filed an appeal from a court ruling entered
in the lawsuit entitled ERIC KOHLER, Plaintiff v. CITY OF
CINCINNATI, et al., Defendants, Case No. 1:20-cv-00889, in the U.S.
District Court for the Southern District of Ohio at Cincinnati.
As reported in the Class Action Reporter on May 4, 2021, Judge
Susan J. Dlott of the U.S. District Court for the Southern District
of Ohio, Western Division, denied the Plaintiff's Motion for
Preliminary Injunction.
Plaintiff Kohler, a white male, initiated the action alleging that
continued enforcement of two decades-old Consent Decrees for police
hiring and promotions violates his constitutional right to equal
protection. In 1980, the United States sued the City, the
Cincinnati Police Division ("CPD"), and related entities alleging
that entry-level police hiring and promotion practices illegally
discriminated against black and women applicants. In settlement of
that case, the City, CPD, the Queen City Lodge No. 69, Fraternal
Order of Police ("FOP"), and the United States entered into a
Consent Decree supervised by the Court ("1981 Consent Decree") --
United States v. City of Cincinnati, No. 1:80-cv-369 (S.D. Ohio
Aug. 12, 1981).
Mr. Kohler is seeking a review of the order entered by Judge Dlott
denying his Motion for Preliminary Injunction.
The appellate case is captioned as Eric Kohler v. Cty of
Cincinnati, OH, et al., Case No. 1:20-cv-00889, in the United
States Court of Appeals for the Sixth Circuit, filed on May 19,
2021.[BN]
Plaintiff-Appellant ERIC KOHLER, On behalf of himself all others
similarly situated, is represented by:
Christopher David Wiest, Esq.
25 Town Center Boulevard, Suite 104
Crestview Hills, KY 41017
Telephone: (513) 257-1895
E-mail: chris@cwiestlaw.com
Defendants-Appellees CITY OF CINCINNATI, OH, MAYOR JOHN CRANLEY,
and UNITED STATES OF AMERICA are represented by:
William Christopher Hicks, Esq.
CITY OF CINCINNATI LAW DEPARTMENT
801 Plum Street, Suite 214
Cincinnati, OH 45202
Telephone: (513) 352-3329
E-mail: william.hicks@cincinnati-oh.gov
- and -
Amber Trzinski Fox, Esq.
U.S. DEPT OF JUSTICE
150 M Street, N.E.
Washington, DC 20530
Telephone: (202) 598-5019
E-mail: amber.fox@usdoj.gov
CINCINNATI INSURANCE: Rye Ridge Appeals Insurance Suit Dismissal
----------------------------------------------------------------
Plaintiffs Rye Ridge Corp. and Haromar, Inc. filed an appeal from a
court ruling entered in the lawsuit entitled RYE RIDGE CORP., et
al., Plaintiffs v. CINCINNATI INSURANCE COMPANY, Defendant, Case
No. 20-cv-7132, in the U.S. District Court for the Southern
District of New York (New York City).
As reported in the Class Action Reporter on May 5, 2021, Judge
Lorna G. Schofield of the U.S. District Court for the Southern
District of New York granted the Defendant's motion to dismiss the
Complaint for failure to state a claim.
Plaintiffs Rye Ridge and Haromar, Inc., bring the putative class
action to seek insurance payments for business losses allegedly
resulting from COVID-19 and government restrictions during the
COVID-19 pandemic. The Plaintiffs assert claims for breach of
contract, breach of the covenant of good faith and fair dealing,
deceptive business practices under N.Y. Gen. Bus. Law Section 349,
et seq., unfair trade practices under Conn. Gen. Stat. Section
42-110a, et seq., and declaratory relief.
Plaintiff Rye Ridge owns and conducts business as a restaurant
called Rye Ridge Deli, in Rye Brook, New York. Plaintiff Haromar
owns and conducts business as another restaurant called Rye Ridge
Deli, in Stamford, Connecticut. The Rye Ridge Delis purchased
insurance policies from the Defendant. The Policies provide
coverage from Dec. 2, 2019, to Dec. 2, 2022, and are identical in
material terms.
The Policies provide "Business Income" coverage for certain income
losses sustained due to direct "accidental physical loss or
accidental physical damage," subject to various exclusions and
limitations not relevant in the case. The Policies also provide
"Extra Expense" coverage for expenses sustained following physical
loss or physical damage and until the premises are restored. They
provide "Civil Authority" coverage when property other than the
Plaintiffs' property suffers damage that leads to an action of
civil authority prohibiting access to the Plaintiffs' property.
And, they provide "Ingress and Egress" coverage if Plaintiffs are
unable to access ingress or egress at their property due to
physical damage or physical loss at a neighboring property and
there is no prohibition of access by civil authority.
From March 2020 onwards, the Plaintiffs suspended business
operations following orders issued by the States of New York and
Connecticut, which initially required restaurants to close their
dine-in facilities and permitted operation only for take-out and
delivery orders. The Civil Orders were later modified to permit
limited outdoor dining and then limited indoor dining. Plaintiffs
suffered business losses as a result.
The Plaintiffs each made claims for coverage from the Defendant for
the losses resulting from, and additional expenses related to, the
COVID-19 pandemic. The Defendant denied coverage on both claims.
The Plaintiffs are now seeking a review of the Court's Opinion and
Order dated April 23, 2021, granting Defendant's motion to dismiss
and denying Plaintiffs' request for oral argument as moot.
The appellate case is captioned as Rye Ridge Corp. v. The
Cincinnati Insurance Company, Case No. 21-1323, in the United
States Court of Appeals for the Second Circuit, filed on May 20,
2021.[BN]
Plaintiffs-Appellants Rye Ridge Corp., a New York corporation, on
behalf of themselves and all others similarly situated, DBA Rye
Ridge Deli; and Haromar, Inc., a Connecticut corporation, on behalf
of themselves and all others similarly situated, DBA Rye Ridge
Deli, are represented by:
Gabriel A. Panek, Esq.
LIEFF, CABRASER, HEIMANN & BERNSTEIN, LLP
250 Hudson Street
New York, NY 10013
Telephone: (212) 355-9500
E-mail: gpanek@lchb.com
Defendant-Appellee Cincinnati Insurance Company, an Ohio
corporation, is represented by:
Edward Fogarty, Jr., Esq.
LITCHFIELD CAVO, LLP
420 Lexington Avenue
New York, NY 10170
Telephone: (212) 434-0100
E-mail: fogarty@litchfieldcavo.com
CITADEL: Faces Class Action Lawsuit Over COVID-19 Response
----------------------------------------------------------
Ryan J. Farrick at legalreader.com reports that a class action
lawsuit has been filed against The Citadel nursing home in North
Carolina, which, at one point, had the most recorded coronavirus
cases of any assisted living facility in the state.
WCNC.com reports that, since the beginning of the pandemic, The
Citadel suffered at least 189 individual coronavirus cases
alongside 18 coronavirus-related deaths.
The class action claims that part of the reason The Citadel was hit
so badly was because of "severe systematic understaffing." However,
the law firm behind the suit says the understaffing had far less to
do with the pandemic than the owner's business model, which
purportedly caused residents to be mistreated.
"Because of the Facility's dire conditions, it is no surprise that
The Citadel Salisbury became the site of one of the earliest and
largest COVID-19 outbreaks at any congregate care setting in North
Carolina, as confirmed by testing of numerous residents which
occurred on April 10, 2020," the lawsuit states.
Attorneys say the COVID situation in The Citadel was facilitated,
in large part, by the facility's change of ownership in early 2020.
Specifically, the lawsuit claims that the new ownership,
Portopiccolo, did not take any measures to ensure that patient
charts and medical documents carried over from prior management.
Portopiccolo, notes WCNC, controlled no nursing homes at the
beginning of 2016-but now operates more than 120 across the United
States.
The lawsuit suggests that Portopiccolo has "grown its enterprise by
reckless cost-cutting measures that have led to it owning
facilities predominately ranked as only one- or two-star by the
official U.S. government."
Kelly Moody Fesperman said she had been led to believe that her
father, Kenneth Moody, would be shielded from the outbreak when he
moved into The Citadel in 2020. However, The Citadel did not take
any special precautions, and Kenneth passed not long after he
arrived.
In fact, Kelly Moody says her father was not even quarantined when
he first arrived to The Citadel, even though she had been led to
believe he would be kept away from other residents.
"We were told we would be in a private room for two weeks, sort of
like a quarantine, so we assumed that would happen," told WCNC. "It
didn't happen. He was put into a room with a roommate. After he
passed away, we found out the roommate had COVID."
Moody died on April 21st; his daughter says she was not even
informed that he was sick until Kenneth was almost dead.
"[The doctor] said, ‘Your dad is dying,' and we didn't even know
he was sick," she said.
The lawsuit cites numerous other instances of apparent neglect: one
resident, Betty Deal, was allegedly denied her Parkinson's
medication more than 20 times; she, too, later tested positive for
coronavirus.
The class action alleges that "part of Defendants' for-profit
private-equity business model was to cut costs and reduce staff to
minimum numbers." Attorneys say this model was inherently reckless,
negligent, and intentional-leading to disastrous effects after
coronavirus struck.
The lawsuit is requesting compensatory damages for the plaintiffs.
[GN]
CITY NATIONAL: Noe Appeals Case Dismissal to 4th Circuit
--------------------------------------------------------
Plaintiff Brenda C. Noe filed an appeal from a court ruling entered
in the lawsuit entitled BRENDA C. NOE, on behalf of herself and all
others similarly situated, Plaintiff v. CITY NATIONAL BANK OF WEST
VIRGINIA, Defendant, Case No. 3:19-cv-00690, in the United States
District Court for the Southern District of West Virginia at
Huntington.
As reported in the Class Action Reporter, Judge Robert C. Chambers
of the U.S. District Court for the Southern District of West
Virginia, Huntington Division, granted the Defendant's motion to
dismiss or stay the case pending arbitration.
The putative class action arises out of the Defendant's practice of
assessing more than one non-sufficient funds fee ("NSF fee") for a
single attempted transaction. According to the Amended Complaint,
the Plaintiff attempted to purchase $52.10 worth of items at
Cashland in July 2018. City National rejected the payment due to
insufficient funds and charged the Plaintiff a $36 NSF fee. Weeks
later, Cashland re-submitted the transaction to City National two
more times without the Plaintiff's knowledge, and City National
assessed a $36 NSF fee each time. In total, City National charged
the Plaintiff $108 in NSF fees for a single attempted purchase of
$52.10.
This pattern repeated in May 2019 after the Plaintiff attempted a
payment to Walmart for $25.13. Pursuant to its NSF fee policy, City
National charged the Plaintiff a $36 fee that same day. Walmart
then resubmitted the charge to City National four more times,
resulting in a total charge of $180 for an attempted transaction of
$25.13.
On Sept. 20, 2019, the Plaintiff initiated the action on behalf of
herself and all similarly situated customers, claiming that the
Defendant's NSF fee practices breach contractual promises or result
in unjust enrichment. She also alleges violations of the West
Virginia Consumer Credit and Protection Act.
The Plaintiff is now seeking a review of the Court's Memorandum
Opinion and Order dated April 21, 2021, and Judgment dated April
21, 2021, granting Defendant's motion and dismissing the case
without prejudice, pending arbitration.
The appellate case is captioned as Brenda Noe v. City National Bank
of West Virginia, Case No. 21-1597, in the United States Court of
Appeals for the Fourth Circuit, filed on May 19, 2021.[BN]
Plaintiff-Appellant BRENDA C. NOE, on behalf of herself and all
others similarly situated, is represented by:
James Graham Bordas, III, Esq.
Jason Edward Causey, Esq.
BORDAS & BORDAS, PLLC
1358 National Road
Wheeling, WV 26003-0000
Telephone: (304) 242-8410
E-mail: jbordasiii@bordaslaw.com
jcausey@bordaslaw.com
- and -
Edward Adam Webb, Esq.
WEBB KLASE & LEONARD, LLC
1900 The Exchange, SE
Atlanta, GA 30339
Telephone: (770) 444-0773
Defendant-Appellee CITY NATIONAL BANK OF WEST VIRGINIA is
represented by:
Dallas Floyd Kratzer, III, Esq.
STEPTOE & JOHNSON PLLC
41 South High Street
Columbus, OH 43215
Telephone: (614) 458-9827
E-mail: dallas.kratzer@steptoe-johnson.com
- and -
Ancil Glenn Ramey, Esq.
STEPTOE & JOHNSON PLLC
825 3rd Avenue
Huntington, WV 25701
Telephone: (304) 526-8133
E-mail: ancil.ramey@steptoe-johnson.com
CONTEXTLOGIC INC: Bernstein Liebhard Reminds of July 16 Deadline
----------------------------------------------------------------
Bernstein Liebhard, a nationally acclaimed investor rights law
firm, reminds investors of the deadline to file a lead plaintiff
motion in a securities class action lawsuit that has been filed on
behalf of investors who purchased or acquired the securities of
ContextLogic, Inc. ("ContextLogic" or the "Company") (NASDAQ: WISH)
from December 16, 2020 through May 12, 2021 (the "Class Period").
The lawsuit filed in the United States District Court for the
Northern District of California alleges violations of the
Securities Act of 1933 and the Securities Exchange Act of 1934.
If you purchased ContextLogic securities, and/or would like to
discuss your legal rights and options please visit ContextLogic
Shareholder Class Action Lawsuit or contact Joseph R. Seidman, Jr.
toll free at (877) 779-1414 or Seidman@bernlieb.com
The complaint alleges that, during the Class Period, defendants
made materially false and misleading statements regarding the
Company's business. Specifically, Defendants' registration
statement and prospectus issued in connection with the Company's
initial public offering ("IPO") contained statements which were
materially false and misleading because they failed to disclose and
misrepresented the following adverse facts that existed at the time
of the IPO: (a) that ContextLogic's 4Q20 monthly active users
("MAUs") had declined materially and were not then growing; and (b)
that as a result of the foregoing, defendants materially overstated
the Company's business metrics and financial prospects.
On May 12, 2021, when ContextLogic announced 1Q21 financial results
for the interim period ended March 31, 2021, it disclosed that its
MAUs had declined another 7% to just 101 million. The Company's
forward sales guidance also fell short, with its 2Q21 revenue
guidance of just $715 million to $730 million coming in
significantly less than the $759 million the market had been led to
expect and far less than the guidance of $735 to $750 million
provided for 1Q21.
On this news, the market price of ContextLogic common stock
declined $3.36 per share, or 29%, to close at $8.11 per share on
May 13, 2021, on unusually high trading volume.
If you wish to serve as lead plaintiff, you must move the Court no
later than July 16, 2021. A lead plaintiff is a representative
party acting on behalf of other class members in directing the
litigation. Your ability to share in any recovery doesn't require
that you serve as lead plaintiff. If you choose to take no action,
you may remain an absent class member.
If you purchased ContextLogic securities, and/or would like to
discuss your legal rights and options please visit
https://www.bernlieb.com/cases/contextlogicinc-wish-shareholder-class-action-lawsuit-fraud-stock-401/apply/
or contact Joseph R. Seidman, Jr. toll free at (877) 779-1414 or
Seidman@bernlieb.com
Since 1993, Bernstein Liebhard LLP has recovered over $3.5 billion
for its clients. In addition to representing individual investors,
the Firm has been retained by some of the largest public and
private pension funds in the country to monitor their assets and
pursue litigation on their behalf. As a result of its success
litigating hundreds of lawsuits and class actions, the Firm has
been named to The National Law Journal's "Plaintiffs' Hot List"
thirteen times and listed in The Legal 500 for ten consecutive
years.
ATTORNEY ADVERTISING. (C) 2021 Bernstein Liebhard LLP. The law firm
responsible for this advertisement is Bernstein Liebhard LLP, 10
East 40th Street, New York, New York 10016, (212) 779-1414. The
lawyer responsible for this advertisement in the State of
Connecticut is Michael S. Bigin. Prior results do not guarantee or
predict a similar outcome with respect to any future matter.
Contact Information
Joseph R. Seidman, Jr.
Bernstein Liebhard LLP
https://www.bernlieb.com
(877) 779-1414
Seidman@bernlieb.com [GN]
CONTEXTLOGIC INC: Bronstein Gewirtz Reminds of July 16 Deadline
---------------------------------------------------------------
Bronstein, Gewirtz & Grossman, LLC notifies investors that a class
action lawsuit has been filed against ContextLogic, Inc.
("ContextLogic" or the "Company") (NASDAQ:WISH) and certain of its
officers, on behalf of shareholders who purchased or otherwise
acquired ContextLogic securities between December 16, 2020 through
May 12, 2021 (the "Class Period"). Such investors are encouraged to
join this case by visiting the firm's site: www.bgandg.com/wish.
This class action seeks to recover damages against Defendants for
alleged violations of the federal securities laws under the
Securities Exchange Act of 1934.
The Complaint alleges that throughout the Class Period, Defendants
made materially false and misleading statements to the market in
the registration statement and prospectus issued in connection with
its initial public offering ("IPO") and specifically that: (1)
ContextLogic's 4Q20 monthly active users ("MAUs") had declined
materially and were not then growing; and (2) consequently,
defendants materially overstated the Company's business metrics and
financial prospects.
A class action lawsuit has already been filed. If you wish to
review a copy of the Complaint you can visit the firm's site:
www.bgandg.com/wish or you may contact Peretz Bronstein, Esq. or
his Investor Relations Analyst, Yael Hurwitz of Bronstein, Gewirtz
& Grossman, LLC at 212-697-6484. If you suffered a loss in
ContextLogic you have until July 16, 2021 to request that the Court
appoint you as lead plaintiff. Your ability to share in any
recovery doesn't require that you serve as a lead plaintiff.
Bronstein, Gewirtz & Grossman, LLC is a corporate litigation
boutique. Our primary expertise is the aggressive pursuit of
litigation claims on behalf of our clients. In addition to
representing institutions and other investor plaintiffs in class
action security litigation, the firm's expertise includes general
corporate and commercial litigation, as well as securities
arbitration. Attorney advertising. Prior results do not guarantee
similar outcomes.
Contact:
Bronstein, Gewirtz & Grossman, LLC
Peretz Bronstein or Yael Hurwitz
212-697-6484 | info@bgandg.com [GN]
CONTEXTLOGIC INC: Gainey McKenna Reminds of July 16 Deadline
------------------------------------------------------------
Gainey McKenna & Egleston announces that a class action lawsuit has
been filed against ContextLogic Inc. ("ContextLogic") (NASDAQ:
WISH) in the United States District Court for the Northern District
of California on behalf of those who: (1) purchased or otherwise
acquired publicly traded ContextLogic securities between December
16, 2020 and May 12, 2021, inclusive (the "Class Period"); and/or
(2) purchased or otherwise acquired ContextLogic common stock
pursuant and/or traceable to the offering documents issued in
connection with the Company's initial public offering conducted on
or about December 16, 2020 (the "IPO" or "Offering").
The Complaint alleges that the Offering documents and Defendants
made false and/or misleading statements and/or failed to disclose
that: (1) the Company's fourth quarter 2020 monthly active users
("MAUs") had declined materially and were not then growing; and (2)
as a result of the foregoing, Defendants materially overstated the
Company's business metrics and financial prospects. When the true
details entered the market, the lawsuit claims that investors
suffered damages.
Investors who purchased or otherwise acquired shares of
ContextLogic during the Class Period should contact the Firm prior
to the July 16, 2021 lead plaintiff motion deadline. A lead
plaintiff is a representative party acting on behalf of other class
members in directing the litigation. If you wish to discuss your
rights or interests regarding this class action, please contact
Thomas J. McKenna, Esq. or Gregory M. Egleston, Esq. of Gainey
McKenna & Egleston at (212) 983-1300, or via e-mail at
tjmckenna@gme-law.com or gegleston@gme-law.com.
Please visit our website at http://www.gme-law.comfor more
information about the firm.[GN]
CORREVIO PHARMA: Class Settlement in Feierstein Wins Final Approval
-------------------------------------------------------------------
Judge Valerie Caproni of the U.S. District Court for the Southern
District of New York enters judgment approving the class action
settlement in the case, JOSH FEIERSTEIN, Individually and On Behalf
of All Others Similarly Situated, Plaintiff v. CORREVIO PHARMA
CORP., MARK H.N. CORREVIO CORRIGAN, WILLIAM HUNTER, JUSTIN A. RENZ,
and SHEILA M. GRANT, Defendants, Case No. 1:19-cv-11361-VEC
(S.D.N.Y.).
The Parties have entered into a Stipulation and Agreement of
Settlement dated Sept. 3, 2020, that provides for a complete
dismissal with prejudice of the claims asserted against the
Defendants in the Action on the terms and conditions set forth in
the Stipulation, subject to the approval of the Court.
By order dated Nov. 20, 2020, the Court: (a) preliminarily approved
the Settlement; (b) certified the Settlement Class solely for
purposes of effectuating the Settlement; (c) ordered that notice of
the proposed Settlement be provided to the potential Settlement
Class Members; (d) provided the Settlement Class Members with the
opportunity either to exclude themselves from the Settlement Class
or to object to the proposed Settlement; and (e) scheduled a
hearing regarding final approval of the Settlement.
The Court conducted a hearing on May 14, 2020, to consider, among
other things, (a) whether the terms and conditions of the
Settlement are fair, reasonable and adequate to the Settlement
Class, and should therefore be approved; and (b) whether a judgment
should be entered dismissing the Action with prejudice as against
the Defendants.
Having reviewed and considered the Stipulation, all papers filed
and proceedings held herein in connection with the Settlement, all
oral and written comments received regarding the Settlement, and
the record in the Action, and good cause appearing therefor, Judge
Caproni affirms the Court's determinations in the Preliminary
Approval Order certifying, for the purposes of the Settlement only,
the Action as a class action pursuant to Rules 23(a) and (b)(3) of
the Federal Rules of Civil Procedure on behalf of the Settlement
Class consisting of all persons and entities who or which purchased
shares of Correvio stock between Sept. 5, 2018 and Dec. 10, 2019,
inclusive, and were damaged thereby.
Pursuant to, and in accordance with, Rule 23 of the Federal Rules
of Civil Procedure, the Judge fully and finally approves the
Settlement set forth in the Stipulation in all respects (including,
without limitation: the amount of the Settlement; the Releases
provided for therein; and the dismissal with prejudice of the
claims asserted against Defendants in the Action), and finds that
the Settlement is, in all respects, fair, reasonable and adequate
to the Settlement Class. The Parties are directed to implement,
perform and consummate the Settlement in accordance with the terms
and provisions contained in the Stipulation.
The Action and all of the claims asserted against Defendants in the
Action by the Lead Plaintiffs and the other Settlement Class
Members are dismissed with prejudice. The Parties will bear their
own costs and expenses, except as otherwise expressly provided in
the Stipulation.
Separate orders will be entered regarding approval of the motion of
the Lead Counsel for an award of attorneys' fees and reimbursement
of Litigation Expenses. Such orders will in no way affect or delay
the finality of the Judgment and will not affect or delay the
Effective Date of the Settlement.
Without further approval from the Court, the Lead Plaintiffs and
the Defendants are authorized to agree to and adopt such amendments
or modifications of the Stipulation or any exhibits attached
thereto to effectuate the Settlement that: (a) are not materially
inconsistent with this Judgment; and (b) do not materially limit
the rights of Settlement Class Members in connection with the
Settlement. Without further order of the Court, the Lead
Plaintiffs and the Defendants may agree to reasonable extensions of
time to carry out any provisions of the Settlement.
There is no just reason to delay the entry of the Judgment as a
final judgment in the Action. Accordingly, the Clerk of the Court
is expressly directed to immediately enter the final judgment in
the Action.
The Clerk of Court is respectfully directed to close the open
motion at docket entry 61.
The Clerk is further directed to close the case.
A full-text copy of the Court's May 19, 2021 Judgment is available
at https://tinyurl.com/3v3w8a6y from Leagle.com.
CRAB ADDISON: Hart's Bid for Sanctions in Labor Suit Partly Granted
-------------------------------------------------------------------
In the case, CHRISTOPHER HART, et al., Plaintiffs v. CRAB ADDISON,
INC. d/b/a JOE'S CRAB SHACK, IGNITE RESTAURANT GROUP, INC., RAYMOND
A. BLANCHETTE, III, KEVIN COTTINGIM, and RODNEY MORRIS, Defendants,
Case No. 13-CV-6458 CJS (W.D.N.Y.), Judge Charles J. Siragusa of
the U.S. District Court for the Western District of New York
granted in part and denied in part the Plaintiffs' motion for
sanctions.
The case was a proposed collective/class action asserting claims
under the Fair Labor Standards Act ("FLSA") and the minimum-wage
statutes of states including New York, Maryland, Missouri, Illinois
and Arizona. Those claims were settled years ago, and the only
matters remaining involve motions for sanctions, filed by the
Plaintiffs, against two law firms, Epstein, Becker & Green, P.C.
and Fisher & Phillips, LLP, and two attorneys at Fisher Phillips,
Brian Gershengorn and Melissa Osipoff, who previously represented
the defendant Ignite Restaurant Group, Inc.
Now before the Court are Objections to a Report and Recommendation
("R&R") by Magistrate Judge Marian W. Payson granting in part and
denying in part the Plaintiff's motion for sanctions and
recommending an award of sanctions against Gershengorn and
Osipoff.
In sum, Judge Payson recommended that the Court grants in part and
denies in part, the Plaintiff's renewed motion for sanctions. In
that regard, the R&R recommends that the application be granted as
against Gershengorn and Osipoff in two respects: First, that
pursuant to Fed. R. Civ. P. 16(f), Gershengorn and Osipoff be
required to reimburse the Plaintiffs for reasonable attorney fees
and costs incurred between May 17, 2016 and June 6, 2016 to prepare
for, and attend, a court-ordered evidentiary hearing on June 6,
2016, at which Gershengorn and Osipoff failed to produce a witness;
and, second, that pursuant to 28 U.S.C. Section 1927 and the
Court's inherent authority, Gershengorn and Osipoff each be
required to pay $3,000 to the Clerk of the Court, and to reimburse
the Plaintiffs' counsel for their reasonable attorney fees and
costs in making the sanctions motion, as a sanction for making
false representations to the Court. Otherwise, the R&R recommends
that the sanctions motion be denied.
On May 17, 2019, Gershengorn and Osipoff filed their Objections to
the R&R. With regard to the recommended sanctions under Rule
16(f), Gershengorn and Osipoff argue that they were not provided
proper notice of the sanctionable conduct, and that such conduct is
not properly punishable under Rule 16(f) in any event. With regard
to the recommended sanction under 28 U.S.C. Secton 1927 and the
Court's inherent power, they argue that they did not have proper
notice of the alleged misrepresentations made to the Court, and
that their statements were not made in bad faith. Indeed, they
contend that the statements "were not even misleading in their
actual context." Additionally, Gershengorn and Osipoff contend
that the temporal scope of the attorney-fee sanction for their
alleged misrepresentations was too broad.
On Aug. 30, 2019, the Plaintiffs filed their opposition to the
objections, and on Sept. 13, 2019, Gershengorn and Osipoff filed a
reply.
Judge Siragusa has carefully considered the parties' submissions
and the entire record relating to the renewed motion for sanctions.
The parties disagree as to the proper standard of review that the
Court should apply, with Gershengorn and Osipoff maintaining that
it is the de novo standard, while the Plaintiffs contend that it is
the "clearly erroneous or contrary to law" standard.
However, assuming arguendo that the subject motion for sanctions is
"dispositive of a claim or defense" and that the portions of the
R&R which have been objected to must therefore be reviewed de novo,
Judge Siragusa nevertheless concurs with Magistrate Judge Payson's
findings and conclusions and concludes, finds, based on his own de
novo review, that the objections lack merit, and that the R&R
should be affirmed and adopted in all respects.
For these reasons, Judge Siragusa denied the Objections and
affirmed and adopted the Report and Recommendation in its entirety.
The Plaintiffs' motion for sanctions is granted in part and denied
in part as indicated in the R&R.
A full-text copy of the Court's May 19, 2021 Decision & Order is
available at https://tinyurl.com/4j7p9xw6 from Leagle.com.
CREDIT CONTROL: Court Denies Bid to Strike Class Claims in Schultz
------------------------------------------------------------------
In the case, ROBERT A. SCHULTZ JR., on behalf of himself and those
similarly situated, Plaintiff v. CREDIT CONTROL, LLC, and JOHN DOES
1 to 10, Defendants, Civil Action No. 2:18-cv-03474-CLW (D.N.J.),
Judge Cathy L. Waldor of the U.S. District Court for the District
of New Jersey granted in part and denied in part Defendant Credit
Control, LLC's motion seeking to strike Plaintiff Schultz's class
allegations, or in the alternative, to set a deadline for the
Plaintiff to move for preliminary settlement approval.
The Plaintiff filed the Fair Debt Credit Protection Act ("FDCPA")
class action in March 2018. Broadly, he alleges that CC, a
collection agency, violated the FDCPA "by threatening to add
interest to New Jersey consumers when the creditor of the account
ceased assessing interest." In November 2018, the Court held a
settlement conference at which a settlement in principle was
reached. The settlement was memorialized in a class action
settlement agreement ("CASA"), which was executed in August 2019.
The source of CC's motion is an FDCPA provision which states that
the amount recoverable in a class action against a debt collector
is "not to exceed the lesser of $500,000 or 1 per centum of the net
worth of the debt collector". The parties do not dispute the rule
applies in the case. To this end, the CASA states that the
Defendant has represented that its net worth is approximately $3.2
million. The Plaintiff has relied on its representation as to its
net worth and considers same to be a material term in negotiating
the terms of this Settlement Agreement. Cognizant of the 1 per
cent limit on recovery, the parties settled the matter for
$29,000.
Most directly at issue is the accuracy of CC's net worth valuation.
The parties explain that because CC's financial statements are
audited at the close of the calendar year, at the time the
settlement was negotiated in November 2018, CC's most recent
audited financial statements were nearly a year old. As a result,
at the settlement conference, the parties relied on an unaudited
balance sheet reflecting the company's valuation at the close of
the third quarter of 2018.
CC represents (and the Plaintiff does not dispute) that CC provided
the Plaintiff with copies of updated audited financial statements
before the CASA was executed, and a certification from CC's
Controller shortly thereafter. After the CASA was signed, the
Plaintiff requested from CC additional information concerning
distributions made to CC's shareholders between the filing of the
action and the settlement conference. According to the Plaintiff,
"these distributions artificially lowered the Defendant's net worth
by half, allowing Defendant to represent a contrived valuation
which falsely lowered its class liability under the FDCPA." He
contended then that due diligence requires that he explore the
distributions' effect on CC's net value before asking the Court to
approve the $29,000 settlement.
CC largely rejected the Plaintiff's requests for information,
stating that it had provided all information required under the
CASA. It did, however, produce a declaration from its CEO
explaining the distributions at issue. The Plaintiff has not
invoked the CASA's provision permitting him to depose the
individuals who prepared or certified the audited financial
statements.
The CASA states that the Class Counsel will file the applications
for preliminary and final approval of the settlement; however, it
does not provide a timeframe for these applications. The Plaintiff
has refrained from doing so, citing the issues as reason for the
delay. Faced with this impasse, CC now asks the Court to (i)
strike the Plaintiff's class allegations on the ground that class
counsel's claimed due diligence in fact demonstrates that the
Plaintiff is not adequately representing the interests of the
class; or alternatively (ii) set a deadline by which the Plaintiff
must move for preliminary approval of the CASA.
Discussion
A. Motion to Strike Class Allegations
CC's motion implicates Rule 23 and Rule 12(f), the latter of which
allows a court to "strike from a pleading an insufficient defense
or any redundant, immaterial, impertinent, or scandalous matter"
upon a motion "by a party either before responding to the pleading
or, if a response is not allowed, within 21 days after being served
with the pleading." Substantively, its argument grows from Rule
23(a)(4)'s requirement that "the representative parties will fairly
and adequately protect the interests of the class." CC asserts
that counsel's delay in seeking settlement approval demonstrates
counsel is acting to further his own interests (i.e. running up
fees) to the detriment of the class, which awaits settlement
approval and payment.
Judge Waldor opines that the argument fails for a variety of
reasons. First, she says CC's cited authority concerns conflicts
between the representative parties and the absent class members;
not between the counsel and the class. While a conflict between
the counsel and the class members is a recognized concern, it does
not warrant the relief CC seeks. Instead, it is the province of a
challenge to class certification (which CC has agreed to for
purposes of settlement) or settlement approval (which is not before
the Court), or a reduction in the class counsel's fee award.
Striking class allegations simply is not the proper remedy to
address CC's conflict allegations, nor does CC cite any authority
that it is. More fundamentally, CC provides no case law supporting
the notion that the conduct described amounts to a failure by
counsel to protect the class's interests. Finally, the motion to
strike is untimely under Rule 12(f). This portion of CC's motion
therefore is denied.
B. Motion to Set a Deadline for Settlement Approval
Judge Waldor agrees with CC that the Plaintiff should be compelled
to move the case toward resolution. While the Plaintiff's interest
in conducting due diligence as to CC's net worth is reasonable
enough, the Plaintiff cannot avoid the fact that he signed -- and
therefore, absent vacatur, is bound by -- a settlement agreement
that expressly incorporates the material fact that CC's net worth
is approximately $3.2 million.
Because the Plaintiff was in possession of CC's audited financial
records when he signed the CASA, he was then fully equipped to
conduct the due diligence he now claims is standing in the way of
his moving for settlement approval. He similarly could have
refrained from signing off on CC's valuation before verifying it.
Additionally, for reasons unknown, the Plaintiff has not deposed
the individuals involved in preparing and certifying CC's financial
statements.
Pragmatically, an issue arises because the CASA is less than clear
when it comes to the Plaintiff challenging CC's valuation. On the
one hand, the parties expressly agreed to the $3.2 million
valuation as a material term in the CASA. On the other, the CASA
accommodates the Plaintiff's right to challenge this figure. The
result is somewhat gray: Is CC's valuation $3.2 million, or is this
an open question?
In view of the above, Judge Waldor finds the most direct and
equitable route toward resolution to be as follows. Per the CASA,
the Plaintiff may notice the deposition of "person(s) involved in
the preparation of the information contained in CC's Controller's
certification" to inquire about the valuation matters at issue.
Thereafter, the Plaintiff will either (i) move for preliminary
approval of the CASA; or (ii) seek leave to vacate the CASA an
reopen discovery. If he does the latter, it is in this context
that the Court will provide the Plaintiff his requested
"opportunity to have the Court address the Defendant's true net
worth." Doing so outside this arena would entail improperly
upending the CASA.
Finally, the Judge notes that "New Jersey courts generally refuse
to vacate settlement agreements absent a demonstration of fraud,
mutual mistake, or other compelling circumstances." As a result,
if the Plaintiff intends to vacate the CASA, the Court will expect
him to establish that his reliance on CC's claimed valuation was
the result of such extenuating circumstances warranting vacatur.
Disposition
An Order consistent with the Opinion follows.
A full-text copy of the Court's May 19, 2021 Opinion is available
at https://tinyurl.com/9ytts4np from Leagle.com.
CUYAHOGA COUNTY, OH: Jackson Suit v. CCCC & Officials Dismissed
---------------------------------------------------------------
In the case, TABATHA JACKSON, et al., Plaintiffs v. CUYAHOGA
COUNTY, et al., Defendants, Case No. 1:20-CV-02649 (N.D. Ohio),
Judge Pamela A. Barker of the U.S. District Court for the Northern
District of Ohio issued Memorandum of Opinion and Order granting:
(i) Defendant Kenneth Mills' Motion to Dismiss;
(ii) Defendants Clifford Pinkney's and Eric Ivey's Motion for
Judgment on the Pleadings; and
(iii) Defendants Cuyahoga County's, Ivey's, Pinkney's, and
Randy Pritchett's Motion to Strike Class Allegations.
Plaintiffs Tabatha Jackson and Phyllis Davis filed the putative
class action pursuant to 42 U.S.C. Section 1983. According to the
Complaint, both Plaintiffs are residents of Cuyahoga County and
African American women. The Plaintiffs allege that, at all
relevant times, they were held in the Cuyahoga County Corrections
Center, but do not specify when or for how long they were held at
the Cuyahoga County Corrections Center ("CCCC"). The putative
class action, as well as the Plaintiffs' individual claims, arise
out of alleged harm suffered by the Plaintiffs and others while at
the CCCC.
The Plaintiffs bring their claims against five Defendants: Cuyahoga
County, Clifford Pinkney, Kenneth Mills, Eric Ivey, and Randy
Pritchett. They bring the action against Pinkney, Mills, Ivey, and
Pritchett in their individual, rather than official, capacities.
The Plaintiffs allege that Defendant Cuyahoga County is an Ohio
political subdivision responsible for the CCCC. They allege that
Cuyahoga County "is a 'person' under 42 U.S.C. Section 1983 and is
responsible for the conduct of its agents, employees and officials
pursuant to the doctrine of respondeat superior."
The Plaintiffs allege that Defendant Pinkney was the Cuyahoga
County Sheriff until August 2019. As the former sheriff, the
Plaintiffs allege that, at all relevant times, Pinkney "was
responsible for the CCCC's operation. Defendant Mills was Cuyahoga
County's director of regional corrections until he resigned in
November 2018 due to his impending termination. The Plaintiffs
allege that at all relevant times, Mills was responsible for the
CCCC's operation.
Defendant Ivey was the warden of CCCC from 2017 until February
2019, when he was demoted to associate warden due to an alleged
nepotism violation. According to the Plaintiffs, Ivey resigned as
associate warden in the fall of 2019 after he pleaded guilty to
falsification and obstruction of justice in connection with the
death of an inmate" at CCCC. They allege that at all relevant
times, Ivey was responsible for the Cuyahoga County Corrections
Center's operation. Defendant Pritchett is a corrections officer
at CCCC. According to the Plaintiffs, the Individual Defendants
were, at all relevant times, in uniform and acting under color of
state law.
The Plaintiffs bring a single class claim against Defendants
Cuyahoga County, Pinkney, Mills, and Ivey, pursuant to the Eighth
and Fourteenth Amendments. In Class Claim One, the Plaintiffs
allege that "the conditions in the Cuyahoga County Corrections
Center in Cleveland, Ohio are unsanitary, inhumane and
unconstitutional." The Plaintiffs allege that "Defendants Cuyahoga
County, Pinkney, Mills and Ivey overcrowded the Cuyahoga County
Corrections Center and forced inmates to sleep in noisy conditions
and on thin mats approximately two feet wide, making sleeping, a
basic human need, difficult." They also allege that the Defendants
served CCCC inmates spoiled food on moldy trays and that some of
the food had dead or alive bugs in it. They allege that the
Defendants provided cloudy, inconsumable water to the inmates, that
urine and feces polluted the floors of the CCCC, and that the CCCC
was infested with bugs, including cockroaches. According to the
Plaintiffs, every female CCCC inmate, including Jackson and Davis,
had to live in these "unsanitary, inhumane and unconstitutional
conditions."
The Plaintiffs seek to establish two subclasses.
The first is an injunctive relief subclass comprised of: All female
inmates who are currently held or who may be in the future held at
the Cuyahoga County Corrections Center and subjected to the
aforementioned unsanitary, inhumane and unconstitutional conditions
that Defendants Cuyahoga County, Pinkney, Mills and Ivey
negligently, intentionally, maliciously, willfully, wantonly,
and/or recklessly created, maintained and/or allowed to exist
pursuant to their policies, practices and/or customs. Defendants
Cuyahoga County, Pinkney, Mills and Ivey's policy, practice and/or
custom includes the failure to adequately train, supervise, monitor
and discipline Cuyahoga County Corrections Center personnel who
engage in constitutional violations.
The second subclass is a monetary relief subclass comprised of: All
female inmates who were held at the Cuyahoga County Corrections
Center and subjected to the aforementioned unsanitary, inhumane and
unconstitutional conditions that Defendants Cuyahoga County,
Pinkney, Mills and Ivey negligently, intentionally, maliciously,
willfully, wantonly, and/or recklessly created, maintained and/or
allowed to exist pursuant to their policies, practices and/or
customs from the time the conduct began through the time of
judgment. Defendants Cuyahoga County, Pinkney, Mills and Ivey's
policy, practice and/or custom includes the failure to adequately
train, supervise, monitor and discipline Cuyahoga County
Corrections Center personnel who engage in constitutional
violations. This Subclass seeks economic, noneconomic, nominal and
punitive monetary damages.
The Plaintiffs attach the United States Marshals Service's October
30 - November 1, 2018 CCCC quality assurance report to their
Complaint. They expressly incorporate the report "by reference" in
their Complaint. According to them, the U.S. Marshals report
describes "the Cuyahoga County Corrections Center as one of the
worst jails in the country."
In addition to the Plaintiffs' Class Claim One, the Plaintiffs
bring three individual claims. They also incorporate the U.S.
Marshals report throughout each of their individual claims one
through three.
The Plaintiffs bring Individual Claim One against Defendants
Cuyahoga County, Mills, Pinkney, and Ivey, on their individual
behalf. Individual Claim One is identical to their classwide
conditions of confinement claim. The Plaintiffs allege that
Cuyahoga County, Mills, Pinkney, and Ivey subjected the Plaintiffs
to the same deplorable conditions listed.
The Plaintiffs bring Individual Claim Two against Defendants
Cuyahoga County, Mills, Pinkney, and Ivey. They allege that
Cuyahoga County, Mills, Pinkney, and Ivey were deliberately
indifferent to Jackson's and Davis' medical needs.
Jackson alone brings Individual Claim Three against Defendants
Cuyahoga County, Mills, Pinkney, Ivey, and Pritchett. Jackson
alleges that Defendant Randy Pritchett "used excessive and
unconstitutional force" on Jackson on Dec. 10, 2018.
The Plaintiffs filed their Complaint in the Cuyahoga County Court
of Common Pleas on Oct. 23, 2020. On Nov. 25, 2020, Defendants
Cuyahoga County, Pinkney, Ivey, and Pritchett filed a Notice of
Removal in the Court.
Mills's Motion and Pinkney's and Ivey's Motion are substantively
identical. Each Defendant, in his individual capacity, moves the
Court to dismiss the Plaintiffs' individual-capacity claims against
him.
Analysis
I. Mills' Motion to Dismiss and Pinkney's and Ivey's Motion for
Judgment on the Pleadings
Mills moves to dismiss the Plaintiffs' Complaint for failure to
state a claim under Fed. R. Civ. P. 12(b)(6). Pinkney and Ivey
move for judgment on the pleadings pursuant to Fed. R. Civ. P.
12(c).
1. Monell Liability
In their Class Claim and all three of their Individual Claims, the
Plaintiffs attempt to assert liability under Monell v. Dep't of
Soc. Servs., 436 U.S. 658 (1978), against Mills, Pinkney, and Ivey
in their individual capacities.
Judge Berker agrees with Mills, Pinkney, and Ivey that the
Plaintiffs' attempt to bring Monell claims against them in their
individual capacities fails. In Monell, the Supreme Court
concluded that Congress intended "municipalities and other local
government units to be included among those persons to whom Section
1983 applies." Hence, the Plaintiffs' individual Monell claims
against Mills, Pinkney, and Ivey cannot stand. Accordingly, to the
extent that the Plaintiffs purport to allege Monell claims against
Mills, Pinkney, and Ivey in their individual capacities throughout
the Complaint, such claims are dismissed.
2. Class Claim One and Individual Count One: Conditions of
Confinement
In their Class Claim One and Individual Count One, the Plaintiffs
allege that Mills, Pinkney, and Ivey are liable in their individual
capacities for the unconstitutional conditions of confinement at
CCCC.
Judge Barker dismisses Class Claim One and Individual Claim One as
to Mills, Pinkney, and Ivey in their individual capacities. She
finds that aside from these conclusory allegations, the Plaintiffs
offer no facts that plausibly connect Mills's, Pinkney's, or Ivey's
own conduct with the alleged squalid conditions in CCCC. Moreover,
the Plaintiffs do not attempt to distinguish Mills's, Pinkney's, or
Ivey's conduct from one another's conduct. The Plaintiffs do not
plausibly allege any specific conduct on Mills's, Pinkney's, or
Ivey's parts that they implicitly authorized, approved, or
knowingly acquiesced in the allegedly unconstitutional conduct at
issue.
While the Plaintiffs "need not set down in detail" all of the
particularities of their claims against the moving Defendants, the
Judge opines that the Plaintiffs must at least allege some facts
related to their individual capacity supervisory liability claims
against Mills, Pinkney, and Ivey. As written, the Plaintiffs'
Complaint fails to do so.
3. Individual Count Two: Deliberate Medical Indifference
In Individual Claim Two, the Plaintiffs allege that Mills, Pinkney,
and Ivey deprived them of the right to receive adequate medical
care and attention as jail inmates, in violation of the Eighth and
Fourteenth Amendments. They allege that Mills, Pinkney, and Ivey
were deliberately indifferent to their medical needs, including
Jackson's need to use a wheelchair and Davis' need to treat her
depression and anxiety.
Judge Barker concludes that the Plaintiffs' deliberate medical
indifference claim fails for the same reasons that their Class
Claim One and Individual Claim One fail, namely that the
Plaintiffs' Complaint is insufficient and also that Plaintiffs fail
to plead individual supervisory liability under Section 1983.
4. Individual Count Three: Excessive Force
In Individual Count Three, Jackson alone alleges that on Dec. 10,
2018, Defendant Pritchett used excessive and unconstitutional force
against her when he grabbed her by the arms and slammed her stomach
side down onto a desk, threw her into a steel pole, and then
forcefully handcuffed her, despite knowing that Jackson had been
shot in the back, stomach, and arm and required the use of a
wheelchair. Jackson alleges that as a direct and proximate result
of Mills's, Pinkney's, and Ivey's actions and inactions, Jackson
suffered injuries and damages stemming from Pritchett's use of
excessive force.
Judge Barker concludes that, for the same reasons discussed ,
Plaintiff Jackson's individual-capacity Excessive Force claim
against Mills, Pinkney, and Ivey is "too thin and generalized."
She says the Plaintiffs fail to state any individual-capacity
claims for which relief can be granted against Mills, Pinkney, or
Ivey. Accordingly, she grants Mills's Motion and dismisses all
individual-capacity claims asserted against him. Because she
dismisses all claims with prejudice against Mills, the Judge need
not decide whether he is entitled to qualified immunity.
Additionally, she grants Pinkney's and Ivey's Motion and dismisses
all individual-capacity claims asserted against them.
II. Cuyahoga County's Motion to Strike Class Allegations
Judge Barker concludes that the Plaintiffs lack standing to seek
injunctive relief in the instant matter and, therefore, their
putative class claim for injunctive relief fails. She says no
amount of potential discovery would cure the Plaintiffs' lack of
standing to pursue injunctive relief against Cuyahoga County.
Accordingly, she grants Cuyahoga County's Motion to Strike
Plaintiffs' injunctive relief subclass.
The Judge also concludes that the Plaintiffs' proposed definition
of its monetary relief subclass, as currently written, is
problematic for all of the reasons discussed. Accounting for the
possibility that the Court might reach such a conclusion, the
Plaintiffs request permission to amend their monetary relief
subclass definition so that the case may proceed on its merits.
Accordingly, the Judge strikes the Plaintiffs' current proposed
monetary relief subclass definition but grant their request for
leave to amend the definition of their proposed monetary relief
subclass only.
The Plaintiffs will have 14 days to file an amended complaint that
incorporates a revised monetary relief subclass definition.
Cuyahoga County will have 14 days from the date of filing of the
Plaintiffs' amended complaint to file any opposition and/or motion
to strike thereto. The Plaintiffs will then have seven days from
the date of filing of any opposition in which to file a reply in
support of their revised class definition.
Because she strikes the Plaintiffs' current proposed class
definition as impermissibly fail-safe, the Judge declines to
address the remaining Fed. R. Civ. P. 23(a) or 23(b)(3) factors at
this time.
Conclusion
Accordingly, for the reasons she set forth, Judge Barker granted
Defendant Mills' Motion to Dismiss and Defendants Pinkney's and
Ivey's Motion for Judgment on the Pleadings. Mills, Pinkney, and
Ivey are dismissed from the matter.
The Judge also granted Defendant Cuyahoga County's Motion to Strike
Class Allegations. The Plaintiffs are granted 14 days in which to
file an amended complaint that incorporates a new proposed monetary
relief subclass definition. Defendant Cuyahoga County is granted
14 days from the date of filing of the Plaintiffs' amended
complaint to file any opposition and/or motion to strike the new
monetary relief subclass definition. The Plaintiffs are granted
seven days from the date of filing of the Defendant's Opposition in
which to file any reply in support of their new proposed
definition.
A full-text copy of the Court's May 20, 2021 Memorandum of Opinion
& Order is available at https://tinyurl.com/4ec62utb from
Leagle.com.
DANIMER SCIENTIFIC: Bernstein Liebhard Reminds of July 13 Deadline
------------------------------------------------------------------
Bernstein Liebhard, a nationally acclaimed investor rights law
firm, announces that a securities class action lawsuit has been
filed on behalf of investors who purchased or acquired the
securities of Danimer Scientific, Inc. ("Danimer Scientific" or the
"Company") (NYSE: DNMR) from October 5, 2020 through May 3, 2021
(the "Class Period"). The lawsuit filed in the United States
District Court for the Eastern District of New York alleges
violations of the Securities Exchange Act of 1934.
If you purchased Danimer Scientific securities, and/or would like
to discuss your legal rights and options please visit Danimer
Scientific Shareholder Class Action Lawsuit or contact Joseph R.
Seidman toll free at (877) 779-1414 or seidman@bernlieb.com
The complaint alleges that, throughout the Class Period, defendants
made false and misleading statements and failed to disclose that:
(i) Danimer Scientific had deficient internal controls; (ii) as a
result, Danimer Scientific had misrepresented, among other things,
its operations' size and regulatory compliance; (iii) defendants
had overstated Nodax's biodegradability, particularly in oceans and
landfills; and (iv) as a result, Danimer Scientific's public
statements were materially false and misleading at all relevant
times.
On March 20, 2021, the Wall Street Journal published an article
stating, among other things, that Danimer Scientific's "many claims
about Nodax are exaggerated and misleading." On this news, the
Company's stock price fell $6.43 per share, or almost 13%, to close
at $43.55 per share on March 22, 2021, thereby injuring investors.
On April 22, 2021, Spruce Point Capital Management ("Spruce Point")
published a report noting various inconsistencies with Danimer's
historical and present claims regarding the size of its operations,
Nodax's degradability, and the Company's expected profitability. On
this news, Danimer's stock price fell $2.01 per share, or 8.04%, to
close at $22.99 per share on April 22, 2021, further injuring
investors.
Finally, on May 4, 2021, Spruce Point published an additional
report alleging that Danimer Scientific had "wildly overstated" its
production figures, pricing, and financial projections based on
documents obtained through the Commonwealth of Kentucky's
Department of Environmental Protection, casting serious doubt on
the integrity of the Company's internal controls. On this news,
Danimer's stock price fell $1.49 per share, or 6.31%, to close at
$22.14 per share on May 4, 2021, further injuring investors.
If you wish to serve as lead plaintiff, you must move the Court no
later than July 13, 2021. A lead plaintiff is a representative
party acting on behalf of other class members in directing the
litigation. Your ability to share in any recovery doesn't require
that you serve as lead plaintiff. If you choose to take no action,
you may remain an absent class member.
If you purchased Danimer Scientific securities, and/or would like
to discuss your legal rights and options please visit
https://www.bernlieb.com/cases/danimerscientificinc-dnmr-shareholder-class-action-lawsuit-fraud-stock-402/apply/
or contact Joseph R. Seidman toll free at (877) 779-1414 or
seidman@bernlieb.com
Since 1993, Bernstein Liebhard LLP has recovered over $3.5 billion
for its clients. In addition to representing individual investors,
the Firm has been retained by some of the largest public and
private pension funds in the country to monitor their assets and
pursue litigation on their behalf. As a result of its success
litigating hundreds of lawsuits and class actions, the Firm has
been named to The National Law Journal's "Plaintiffs' Hot List"
thirteen times and listed in The Legal 500 for ten consecutive
years.
ATTORNEY ADVERTISING. (C) 2021 Bernstein Liebhard LLP. The law firm
responsible for this advertisement is Bernstein Liebhard LLP, 10
East 40th Street, New York, New York 10016, (212) 779-1414. The
lawyer responsible for this advertisement in the State of
Connecticut is Michael S. Bigin. Prior results do not guarantee or
predict a similar outcome with respect to any future matter.
Contact Information
Joseph R. Seidman
Bernstein Liebhard LLP
https://www.bernlieb.com
(877) 779-1414
seidman@bernlieb.com [GN]
DANIMER SCIENTIFIC: Frank R. Cruz Files Securities Fraud Lawsuit
----------------------------------------------------------------
The Law Offices of Frank R. Cruz announces that it has filed a
class action lawsuit in the United States District Court for the
Eastern District of New York captioned Skistimas v. Danimer
Scientific, Inc., et al., (Case No. 21-cv-02824) on behalf of
persons and entities that purchased or otherwise acquired Danimer
Scientific Inc. ("Danimer" or the "Company") (NYSE: DNMR)
securities between October 28, 2020 and May 4, 2021, inclusive (the
"Class Period"). Plaintiff pursues claims under Sections 10(b) and
20(a) of the Securities Exchange Act of 1934 (the "Exchange Act").
Investors are hereby notified that they have until July 13, 2021 to
move the Court to serve as lead plaintiff in this action.
If you are a shareholder who suffered a loss, click
https://www.frankcruzlaw.com/cases/danimer-scientific-inc/ to
participate.
March 20, 2021, The Wall Street Journal published an article
entitled "Plastic Straws That Quickly Biodegrade in the Ocean? Not
Quite, Scientists Say" addressing, among other things, Danimer's
claims that Nodax, a plant-based plastic that Danimer markets,
breaks down far more quickly than fossil-fuel plastics. The article
alleges that according to several experts on biodegradable
plastics, "many claims about Nodax are exaggerated and misleading."
According to the article, Jason Locklin, the expert who co-authored
the study touted by Danimer as validating its material, stated that
Danimer's marketing is "sensationalized" and that making broad
claims about Nodax's biodegradability "is not accurate" and is
"greenwashing."
On this news, the Company's stock price fell $6.43 per share, or
roughly 13%, to close at $43.55 per share on March 22, 2021.
On April 22, 2021, Spruce Point Capital Management ("Spruce Point")
published a research report entitled "When the Tide Goes Out, What
Will Wash Ashore?" In addition to the concerns about Danimer's
product biodegradability claims, the report found "multiple
conflicting sources of Danimer's facility sizes and production
capacity" and "inconsistencies between reported figures and city
filings for Kentucky facility capital costs." The report also
raised doubts about the strength of the Company's purported
partnerships with Pepsi and Nestlé because Pepsi recently sold its
equity stake in Danimer and "both the top Pepsi and Nestlé
executives with close relationships to Danimer recently resigned."
On this news, the Company's stock price fell $2.01, or 8%, to close
at $22.99 per share on April 22, 2021, on unusually heavy trading
volume.
On May 4, 2021, Spruce Point published a follow-up report. Citing
information obtained via a Freedom of Information Act ("FOIA")
request from the Kentucky Department of Environmental Protection,
the report alleged that "Danimer's production figures, its pricing,
and rosy financial projections are wildly overstated" and that its
Kentucky facility received a notice of compliance violations from
the Division for Air Quality. Moreover, "Danimer's PHA average
selling price appears to be 30% - 42% below management's claims."
On this news, the Company's stock price fell $4.48, or 20%, over
three consecutive trading sessions to close at $17.66 per share on
May 6, 2021, on unusually heavy trading volume.
The complaint filed alleges that throughout the Class Period,
Defendants made materially false and/or misleading statements, as
well as failed to disclose material adverse facts about the
Company's business, operations, and prospects. Specifically,
Defendants failed to disclose to investors: (1) that biodegradable
materials such as Nodax could take years to break down; (2) that,
as a result, the Company's marketing claims that Nodax products
could biodegrade within months were exaggerated and misleading; (3)
that monthly biopolymer production and natural gas usage at the
Company's Kentucky and Georgia facilities were materially
overstated; (4) that Danimer faced compliance violations for its
Kentucky facility from the Division of Air Quality; and (5) that,
as a result of the foregoing, Defendants' positive statements about
the Company's business, operations, and prospects were materially
misleading and/or lacked a reasonable basis.
Follow us for updates on Twitter: twitter.com/FRC_LAW.
If you purchased Danimer securities during the Class Period, you
may move the Court no later than July 13, 2021 to ask the Court to
appoint you as lead plaintiff. To be a member of the Class you need
not take any action at this time; you may retain counsel of your
choice or take no action and remain an absent member of the Class.
If you purchased Danimer securities, have information or would like
to learn more about these claims, or have any questions concerning
this announcement or your rights or interests with respect to these
matters, please contact Frank R. Cruz, of The Law Offices of Frank
R. Cruz, 1999 Avenue of the Stars, Suite 1100, Los Angeles,
California 90067 at 310-914-5007, by email to
info@frankcruzlaw.com, or visit our website at
www.frankcruzlaw.com. If you inquire by email please include your
mailing address, telephone number, and number of shares purchased.
This press release may be considered Attorney Advertising in some
jurisdictions under the applicable law and ethical rules.
View source version on businesswire.com:
https://www.businesswire.com/news/home/20210520005427/en/
Contacts
The Law Offices of Frank R. Cruz, Los Angeles
Frank R. Cruz, 310-914-5007
fcruz@frankcruzlaw.com
www.frankcruzlaw.com [GN]
DEPUY SYNTHES: Knee Replacement System "Defective," Lambert Claims
------------------------------------------------------------------
DAVID LAMBERT, individually and on behalf all others similarly
situated, Plaintiff v. DEPUY SYNTHES SALES, INC. D/B/A DEPUY
SYNTHES JOINT RECONSTRUCTION; MEDICAL DEVICE BUSINESS SERVICES,
INC. F/K/A DEPUY ORTHOPAEDICS INC.; DEPUY IRELAND UNLIMITED
COMPANY, Defendants, Case No. 2021CP1002477 (S.C. Ct. Com. Pl., 9th
Jud. Cir., Charleston Cty., May 27, 2021) is a class action against
the Defendants for strict liability, breach of express warranty,
breach of implied warranty of fitness for a particular purpose,
breach of implied warranty of merchantability, negligence, and
negligent misrepresentation.
The case arises from the Defendants' alleged production,
distribution, and marketing of defective Attune total knee
replacement system. The Plaintiff received a right total knee
arthroplasty on August 13, 2015 using the Attune total knee
replacement system. On September 9, 2019, the Plaintiff went to his
physician complaining of severe knee pain and instability. The
Plaintiff's surgeon discovered that the tibial component was
grossly loose and removed completely from the cement leaving almost
perfect mold of the cement. The debonding of the tibial
implant-cement interface was due to the defective nature of the
Defendants' Attune knee system. As a result of the Defendants'
alleged negligence and omissions, the Plaintiff and Class members
were required to undergo knee revision surgery to remove and
replace the defective Attune device.
DePuy Synthes Sales, Inc., doing business as DePuy Synthes Joint
Reconstruction, is a medical devices company based in
Massachusetts.
Medical Device Business Services, Inc., formerly known as DePuy
Orthopaedics Inc., is a medical devices company, with its principal
place of business at 700 Orthopaedic Drive, Warsaw, Indiana.
DePuy Ireland Unlimited Company is a medical devices company, with
its principal place of business at Loughbeg Industrial Estate,
Ringaskiddy CO Cork, Ireland. [BN]
The Plaintiff is represented by:
Nikki Shutt, Esq.
BURNETTE SHUTT & MCDANIEL, PA
Post Office Box 1929
Columbia, SC 29202
Telephone: (803) 904-7912
Facsimile: (803) 904-7910
E-mail: Nsutt@BurnetteShutt.law
DIEBOLD NIXDORF: Pension Fund Appeals Securities Suit Dismissal
----------------------------------------------------------------
Plaintiff Indiana Laborers Pension and Welfare Funds filed an
appeal from a court ruling entered in In re Diebold Nixdorf, Inc.
Securities Litigation, Case No. 19-cv-2180, in the U.S. District
Court for the Southern District of New York (New York City).
As reported in the Class Action Reporter, the lawsuit is a federal
securities class action on behalf of a class consisting of all
persons other than Defendants who purchased or otherwise acquired
Diebold securities between May 4, 2017 and July 4, 2017, both dates
inclusive (the "Class Period"), seeking to recover damages caused
by Defendants' violations of the federal securities laws and to
pursue remedies under Sections 10(b) and 20(a) of the Securities
Exchange Act of 1934 (the "Exchange Act") and Rule 10b-5
promulgated thereunder, against the Company and certain of its top
officials.
The complaint stated that throughout the Class Period, Defendants
made materially false and misleading statements regarding the
Company's business, operational and compliance policies.
Specifically, Defendants made false and/or misleading statements
and/or failed to disclose that: (i) the Company was experiencing
delays in systems rollouts as well as a longer customer decision
making process and order-to-revenue conversion cycle; (ii) the
foregoing issues were negatively impacting the Company's services
business and operations; and (iii) as a result, the Company's
public statements were materially false and misleading at all
relevant times.
The Plaintiff now seeks a review of the District Court's Opinion
and Order dated March 30, 2021 and Judgment dated April 28, 2021,
granting Defendant's motion to dismiss the case without prejudice.
The appellate case is captioned as In re Diebold Nixdorf, Inc.
Securities Litigation, Case No. 21-1373, in the United States Court
of Appeals for the Second Circuit, filed on May 27, 2021.[BN]
Plaintiff-Appellant Indiana Laborers Pension and Welfare Funds is
represented by:
Brian Oliver O'Mara, Esq.
ROBBINS GELLER RUDMAN & DOWD LLP
655 West Broadway
San Diego, CA 92101
Telephone: (619) 231-1058
E-mail: bomara@rgrdlaw.com
Defendants-Appellees Diebold Nixdorf, Incorporated, Andreas Mattes,
and Christopher A. Chapman are represented by:
David M.J. Rein, Esq.
SULLIVAN & CROMWELL LLP
125 Broad Street
New York, NY 10004
Telephone: (212) 558-3035
E-mail: reind@sullcrom.com
EBIX INC: Clerk to Update Docket to Reflect Saraf as Lead Plaintiff
-------------------------------------------------------------------
In the case, RAHUL SARAF, individually and on behalf of all others
similarly situated, Plaintiff v. EBIX, INC., et al., Defendants,
Case No. 21-CV-1589 (JMF) (S.D.N.Y.), Judge Jesse M. Furman of the
U.S. District Court for the Southern District of New York ordered
the Clerk of Court to update the docket to reflect the appointment
of Rahul Saraf as the Lead Plaintiff, to conform the docket to the
caption of the Order.
On Feb. 22, 2021, Christine Teifke filed the complaint in the
putative class action lawsuit. On May 11, 2021, the Court
appointed Saraf as the Lead Plaintiff pursuant to 15 U.S.C.
Sections 78u-4(a)(3)(B).
A full-text copy of the Court's May 19, 2021 Order is available at
https://tinyurl.com/rt69464v from Leagle.com.
EMERGENT BIO: Levi & Korsinsky Reminds of June 18 Deadline
----------------------------------------------------------
The following statement is being issued by Levi & Korsinsky, LLP:
To: All persons or entities who purchased or otherwise acquired
securities of Emergent Biosolutions Inc. ("Emergent Bio") (NYSE:
EBS) between July 6, 2020 and March 31, 2021. You are hereby
notified that a securities class action lawsuit has been commenced
in the United States District Court for the District of Maryland.
To get more information go to:
https://www.zlk.com/pslra-1/emergent-biosolutions-inc-loss-submission-form?prid=15944&wire=5
or contact Joseph E. Levi, Esq. either via email at
jlevi@levikorsinsky.com or by telephone at (212) 363-7500. There is
no cost or obligation to you.
Emergent Biosolutions Inc. NEWS - EBS NEWS
CASE DETAILS: The complaint alleges that throughout the class
period Defendants issued materially false and/or misleading
statements and/or failed to disclose that: (i) Emergent's Baltimore
plant had a history of manufacturing issues increasing the
likelihood for massive contaminations; (ii) these longstanding
contamination risks and quality control issues at Emergent's
facility led to a string of FDA citations; (iii) the Company
previously had to discard the equivalent of millions of doses of
COVID-19 vaccines after workers at the Baltimore plant deviated
from manufacturing standards; and (iv) as a result of the
foregoing, Defendants' public statements about Emergent's ability
and capacity to mass manufacture multiple COVID-19 vaccines at its
Baltimore manufacturing site were materially false and/or
misleading and/or lacked a reasonable basis.
WHAT THIS MEANS TO SHAREHOLDERS: If you suffered a loss in Emergent
Bio you have until June 18, 2021 to request that the Court appoint
you as lead plaintiff. Your ability to share in any recovery
doesn't require that you serve as a lead plaintiff.
NO COST TO YOU: If you purchased Emergent Bio securities during the
Class Period date OF between July 6, 2020 and March 31, 2021, you
may be entitled to compensation without payment of any out of
pocket fees or costs through a contingency fee arrangement.
HOW TO JOIN THE CLASS ACTION: Complete this brief submission form
https://www.zlk.com/pslra-1/emergent-biosolutions-inc-loss-submission-form?prid=15944&wire=5
or call 212-363-7500 to speak to Joseph E. Levi, Esq. to discuss
this case.
WHY LEVI & KORSINSKY: Levi & Korsinsky have a proven track record
of winning cases worth hundreds of millions of dollars for
shareholders over a 20-year period. We represent and fight for
shareholders who have been wronged by Corporations.
Levi & Korsinsky is a nationally recognized firm with offices in
New York, California, Connecticut, and Washington D.C. The Firm's
Founding Partners, Joseph Levi and Eduard Korsinsky have been
representing shareholders and institutional clients for almost 20
years and have achieved remarkable results for clients in the U.S.
and internationally. The firm, with more than 90 employees, is
committed to fostering, cultivating and preserving a culture of
diversity, equity and inclusion for employees and those that we
represent. Our attorneys have extensive expertise representing
investors in securities litigation with a track record of
recovering hundreds of millions of dollars in cases. Levi &
Korsinsky was ranked in Institutional Shareholder Services' ("ISS")
SCAS Top 50 Report for 7 years in a row as a top securities
litigation firm in the United States. The SCAS Top 50 Report
identifies the top plaintiffs' securities law firms in the country,
and year after year, ISS has recognized Levi & Korsinsky as a
leading firm in the area of securities class action litigation.
CONTACT:
Levi & Korsinsky, LLP
Joseph E. Levi, Esq.
Ed Korsinsky, Esq.
55 Broadway, 10th Floor
New York, NY 10006
jlevi@levikorsinsky.com
Tel: (212) 363-7500
Fax: (212) 363-7171
www.zlk.com [GN]
ENDO INTERNATIONAL: Court Certifies Class in Pelletier Suit
-----------------------------------------------------------
In the case, ALEXANDRE PELLETIER, Individually and On Behalf of All
Others Similarly Situated v. ENDO INTERNATIONAL PLC, RAJIV KANISHKA
LIYANAARCHCHIE DE SILVA, SUKETU P. UPADHYAY, AND PAUL V.
CAMPANELLI, Case No. 17-cv-5114 (E.D. Pa.), Judge Michael M.
Beylson of the U.S. District Court for the Eastern District of
Pennsylvania grants the Plaintiffs' motion to certify class.
The securities class action alleges corporate misrepresentations.
The issue is whether facts common to the class "predominate" over
individual issues.
According to the Memorandum, in the opera world, misrepresentations
are common, whether Mozart's ingenious disguises of Papagena in the
Magic Flute and Despina in Cosi Fan Tutte but do not impact any
class and are quickly remedied. However, tragedies can involve
class impact. Consider Verdi's Don Carlo, where Spain's King
Philip, in an effort to secure a treaty between Spain and France,
usurps the engagement of his son, the title character Don Carlo, to
the French princess Elizabeth, who must instead marry Phillip.
However, it soon appears that Phillip uses this treaty to tighten
his dictatorial grip on the Flemish people, and they surely
represent a class. The issue of whether Phillip's domination over
the Flemish people "predominates" over the more dramatic but
individualized ensuing palace intrigues can be debated.
The Plaintiffs have invoked the Private Securities Litigation
Reform Act ("PSLRA") to allege that Endo and the Individual
Defendants artificially inflated Endo's revenues in the generic
pharmaceuticals market through unsustainable, noncompetitive
pricing practices and relied on these price increases as part of
its strategic plan. Unilateral price inflation is inherently
unsustainable, especially in an industry like pharmaceutical
generics where the sellers compete only on price. When making
noncompetitive price increases, participation in the market lasts
only as long as the other sellers also raise their prices. Each
seller risks being undercut by any competitor and losing all
revenue from the market.
Through a series of alleged misrepresentations, Endo attributed its
revenue growth to other factors and obscured the extent to which it
relied on these short-term noncompetitive practices. In doing so,
the Plaintiffs argue that the Defendants misled the public into
believing that Endo had the potential for long-term profitability,
affecting Endo's stock prices.
In the motion to dismiss, the Court permitted the Plaintiffs to
continue on their allegations that were independent of price-fixing
theories. The surviving claims are those that allege
misrepresentations or omissions regarding one or more of the
following issues: (1) Market Conditions, (2) Sources of Revenue,
(3) Pricing Decisions (and the bases for making those decisions)
and (4) Competitive Environment.
The Plaintiffs have moved for class certification. They propose
the following class definition for class certification: "All
persons and entities who purchased or otherwise acquired the
ordinary shares of Endo from March 2, 2015 through February 27,
2017, inclusive (the Class Period) and were damaged thereby."
The Defendants have raised a litany of challenges to class
certification. These challenges fall roughly into four categories:
(1) Class Leadership, (2) Class Definition, Predominance under the
Basic Presumption, and (4) the Classwide Damages Model. While many
of the Defendants' arguments raise significant issues with which
the Plaintiffs will need to contend in later stages of the
litigation, Judge Beylson nonetheless largely agrees with the
Plaintiffs at this stage. With minor alterations to the class
definition to reflect discussion from a recent hearing, the Judge
grants the Plaintiffs' motion to certify this class.
To ensure that the class definition reflects the parties' intended
meaning, Judge Beylson makes both a modification and a
clarification now. As proposed, the MissPERS carveout states:
"Also excluded from the Class are claims released in the settlement
in MissPER." The Judge will supplement that language: "Also
excluded from the Class are claims released in the settlement in
MissPERS, regardless of whether the purchaser/acquirer has sought
compensation under the related settlement."
Additionally, the Judge will certify the class with the
understanding that the MissPERS carveout does not remove from the
litigation all persons who own or owned shares subject to the
MissPERS settlement. Instead, the MissPERS carveout simply
precludes otherwise-included Pelletier class members from seeking
damages or asserting claims in the case to the extent those claims
were released in MissPERS. The Plaintiffs' discussed hypothetical
buyer, therefore, can still seek damages in the litigation for the
second tranche of Endo stock.
To ensure that there are no ongoing concerns regarding the language
of "and were damaged thereby," the Judge will also remove that
language from the class definition.
For these reasons, and based on the Court's finding that the
proposed class, the Lead Plaintiffs, and the class counsel satisfy
the standards of Rule 23(a) and 23(b)(3), Judge Beylson grants the
Plaintiffs' motion to certify the class with the following class
definition: "All persons and entities who purchased or otherwise
acquired the ordinary shares of Endo from March 2, 2015 through
February 27, 2017, inclusive."
Excluded from the Class are (i) Defendants and any affiliates or
subsidiaries thereof; (ii) present and former officers and
directors of Endo and its subsidiaries or affiliates, and their
immediate family members (as defined in Item 404 of SEC Regulation
S-K, 17 C.F.R. Section 229.404, Instructions (1)(a)(iii) &
(1)(b)(ii)); (iii) Defendants' liability insurance carriers, and
any affiliates or subsidiaries thereof; (iv) any entity in which
any Defendant has or has had a controlling interest; (v) Endo's
employee retirement and benefits plan(s); and (vi) the legal
representatives, heirs, estates, agents, successors, or assigns of
any person or entity described in the preceding five categories.
Also excluded from the Class are claims released in the settlement
in Public Employees' Retirement System of Mississippi v. Endo
International plc, et al., No. 2017-02081-MJ (Ct. Com. Pl. Chester
Cnty., Pa.), regardless of whether the purchaser/acquirer has
sought compensation under the related settlement, pursuant to the
Notice of Pendency of Class Action, Proposed Settlement, and Motion
for Attorneys' Fees and Expenses issued in that case by Order of
the Court of Common Pleas of Chester County, Pennsylvania.
An appropriate order follows.
A full-text copy of the Court's May 20, 2021 Memorandum is
available at https://tinyurl.com/sntjubpz from Leagle.com.
ERGATTA INC: Fischler Seeks Blind People's Equal Website Access
---------------------------------------------------------------
BRIAN FISCHLER, individually and on behalf of all others similarly
situated, Plaintiff v. ERGATTA, INC., Defendant, Case No.
1:21-cv-03024 (E.D.N.Y., May 27, 2021) is a class action against
the Defendant for violations of the Americans with Disabilities
Act, the New York State Human Rights Law, and the New York City
Human Rights Law.
According to the complaint, the Defendant has failed to design,
construct, maintain, and operate its website to be fully accessible
to and independently usable by the Plaintiff and other blind or
visually-impaired persons. The Defendant's website,
www.ergatta.com, allegedly contains access barriers which hinder
the Plaintiff and Class members to enjoy the benefits of its online
goods, content, and services offered to the general public through
the website. These access barriers include, but not limited to: (a)
images are not properly labeled, (b) tables are not properly
labeled with row and column headers, (c) links use general text
like "read more" with no surrounding text explaining the link
purpose, (d) frames do not have a title, (e) webpages have markup
errors, and (f) some headings are empty.
The Plaintiff and Class members seek permanent injunction to cause
a change in the Defendant's corporate policies, practices, and
procedures so that the Defendant's website will become and remain
accessible to blind and visually-impaired individuals.
Ergatta, Inc. is an online retailer of rowing machines,
headquartered in New York. [BN]
The Plaintiff is represented by:
Douglas B. Lipsky, Esq.
Christopher H. Lowe, Esq.
LIPSKY LOWE LLP
420 Lexington Avenue, Suite 1830
New York, NY 10017-6705
Telephone: (212) 392-4772
E-mail: doug@lipskylowe.com
chris@lipskylowe.com
FIRST CONNECTICUT: Karp Appeals Denied Class Cert. Bid to 4th Cir.
------------------------------------------------------------------
Plaintiff Selwyn Karp filed an appeal from a court ruling entered
in the lawsuit entitled SELWYN KARP, individually and on behalf of
all others similarly situated v. FIRST CONNECTICUT BANCORP, INC.,
et al., Case No. 1:18-cv-02496-RDB, in the United States District
Court for the District of Maryland at Baltimore.
As reported in the Class Action Reporter on April 23, 2021, the
Hon. Judge Richard D. Bennett entered an order holding that:
1. the Lead Plaintiff's Motion for Summary Judgment, as
publicly redacted, is denied;
2. the Defendants' Cross Motion for Summary Judgment, as
publicly redacted, is granted;
3. the Lead Plaintiff's Motion to Certify Class and Appoint
Class Representative and Class Counselis denied as moot;
4. the Defendants' Motion for Other Relief to Exclude the
Opinions and Testimony of Plaintiff's Expert M. Travis Keath, as
publicly redacted, is denied as moot;
5. pursuant to Rule 58(a) Judgment is entered in favor of the
Defendants on all counts of the Plaintiffs' Consolidated Amended
Complaint;
6. the Clerk of the Court shall close the case and the
consolidated case of Lagace v. First Connecticut Bancorp, Inc.,
RDB-18-2541; and
7. the Clerk of the Court shall transmit a copy of the Order
and accompanying Memorandum Opinion to counsel of record.
The lawsuit alleges violation of the Securities and Exchange Act.
On June 18, 2018, First Connecticut and People's United entered
into an Agreement and Plan of Merger (the "Merger Agreement"),
pursuant to which First Connecticut will merge with and into
People's United, with People's United continuing as the surviving
corporation.
Pursuant to the terms of the Merger Agreement, each share of First
Connecticut common stock issued and outstanding will be converted
into the right to receive 1.725 shares of People's United common
stock.
On July 25, 2018, to convince First Connecticut's public common
shareholders to vote in favor of the Proposed Transaction,
Defendants authorized the filing of a materially incomplete and
misleading Form S-4 Registration Statement with the SEC, in
violation of Sections 14(a) and 20(a) of the Exchange Act.
In particular, the Proxy contains materially incomplete and
misleading information concerning: (i) financial projections for
First Connecticut, People's United, and the Synergies expected to
result from the Proposed Transaction; (ii) the valuation analyses
performed by First Connecticut's financial advisor, Piper Jaffray &
Co., in support of their fairness opinion; and (iii) the background
process leading to the Proposed Transaction.
The Plaintiff now seeks a review of the order entered by Judge
Bennett, granting, among other things, summary judgment in favor of
Defendants.
The appellate case is captioned as Selwyn Karp v. First Connecticut
Bancorp, Inc., Case No. 21-1571, in the United States Court of
Appeals for the Fourth Circuit, filed on May 12, 2021.[BN]
Plaintiff-Appellant SELWYN KARP, Individually and on Behalf of All
Others Similarly Situated, is represented by:
Thomas J. McKenna, Esq.
GAINEY MCKENNA & EGLESTON
501 5th Avenue
New York, NY 10017
Telephone: (212) 983-1300
E-mail: tjmckenna@gme-law.com
- and -
Thomas Joseph Minton, Esq.
GOLDMAN & MINTON, PC
3600 Clipper MIll Road
Baltimore, MD 21211
Telephone: (410) 783-7575
E-mail: tminton@charmcitylegal.com
- and -
Juan E. Monteverde, Esq.
MONTEVERDE & ASSOCIATES, PC
350 5th Avenue
New York, NY 10118
Telephone: (212) 971-1341
E-mail: jmonteverde@monteverdelaw.com
Defendants-Appellees FIRST CONNECTICUT BANCORP, INC., JOHN J.
PATRICK, JR., RONALD A. BUCCHI, JOHN A. GREEN, JAMES T. HEALEY,
JR., PATIENCE P. MCDOWELL, KEVIN S. RAY, and MICHAEL A. ZIEBKA are
represented by:
Elizabeth Gingold Clark, Esq.
Timothy J. Fitzmaurice, Esq.
Robert R. Long, IV, Esq.
ALSTON & BIRD, LLP
1 Atlantic Center
1201 West Peachtree Street
Atlanta, GA 30309-3424
Telephone: (404) 881-7132
E-mail: elizabeth.clark@alston.com
tim.fitzmaurice@alston.com
robert.long@alston.com
- and -
Emily Seymour Costin, Esq.
ALSTON & BIRD, LLP
950 F Street, NW
Washington, DC 20004
Telephone: (202) 239-3695
E-mail: emily.costin@alston.com
- and -
George Stewart Webb, Jr., Esq.
VENABLE, LLP
750 East Pratt Street
Baltimore, MD 21202
Telephone: (410) 244-7400
E-mail: gswebb@Venable.com
FREEDOM MORTGAGE: Chittick Appeals Ruling in RESPA Suit to 4th Cir.
-------------------------------------------------------------------
Plaintiffs STACY P. CHITTICK, et al., filed an appeal from a court
ruling entered in the lawsuits entitled Stacy P. Chittick,
individually and on behalf of all others similarly situated v.
Freedom Mortgage Corporation and NYCB Mortgage Company, LLC, Case
No. 1:18-cv-01034-AJT-MSN; Rodney W. Harrell, on behalf of himself
and all similarly situated persons, Plaintiff, v. Freedom Mortgage
Corporation, Defendant, Case No. 1:18-cv-00275-AJT-TCB; and BARBARA
FRANCESKI, Plaintiff, v. FREEDOM MORTGAGE CORPORATION and NYCB
MORTGAGE COMPANY, LLC, Defendants, Case No. 1:21-cv-00138-AJT-MSN,
in the United States District Court for the Eastern District of
Virginia at Alexandria.
The lawsuits are brought over alleged violation of the Real Estate
Settlement Procedures Act of 1974 ("RESPA") and a breach of
contract by Defendants in relation to payment of property taxes.
The Plaintiffs are seeking a review of the Court's Order dated May
7, 2021, denying Plaintiffs' Motion for Class Certification.
The appellate case is captioned as Stacy Chittick v. Freedom
Mortgage Corporation, Case No. 21-187, in the United States Court
of Appeals for the Fourth Circuit, filed on May 21, 2021.[BN]
Plaintiffs-Petitioners STACY P. CHITTICK, individually and on
behalf of all others similarly situated; RODNEY W. HARRELL,
individually and on behalf of all others similarly situated; and
BARBARA FRANCESKI, individually and on behalf of all others
similarly situated, are represented by:
John J. Beins, Esq.
BEINS GOLDBERG, LLP
2 Wisconsin Circle, Suite 700
Chevy Chase, MD 20815
Telephone: (240) 235-5040
E-mail: jbeins@beinsgoldberg.com
- and -
Justin Patrick Keating, Esq.
BEINS AXELROD, PC
1717 K Street NW
Washington, DC 20006
Telephone: (202) 328-7222
E-mail: jkeating@beinsaxelrod.com
Defendant-Respondent FREEDOM MORTGAGE CORPORATION is represented
by:
Travis Aaron Sabalewski, Esq.
Justin Michael Sizemore, Esq.
HOLLAND & KNIGHT, LLP
1650 Tysons Boulevard
McLean, VA 22102
Telephone: (703) 720-8075
E-mail: tsabalewski@reedsmith.com
GEICO GENERAL: Green Appeals Insurance Suit Ruling to Del. Sup. Ct.
-------------------------------------------------------------------
Plaintiffs Yvonne Green and Rehabilitation Associates, P.A. filed
an appeal from a court ruling entered in the lawsuit styled YVONNE
GREEN, WILMINGTON PAIN & REHABILITATION CENTER, and REHABILITATION
ASSOCIATES, P.A., on behalf of themselves and all others similarly
situated, Plaintiffs v. GEICO GENERAL INSURANCE COMPANY, Defendant,
Case No. N17C-03-242 EMD CCLD, in the Superior Court of the State
of Delaware, in and for New Castle County.
As reported in the Class Action Reporter on May 25, 2021, the
Superior Court of Delaware denied the Plaintiffs' Motion for Relief
Related to Declaratory Judgment.
The case is a class action assigned to the Complex Commercial
Litigation Division of the Court. Yvonne Green, Wilmington Pain &
Rehabilitation Center ("WPRC"), and Rehabilitation Associates, P.A.
("RA") sued on behalf of themselves and all others similarly
situated. The Plaintiffs filed suit against GEICO, alleging that
GEICO uses two computerized rules, the Geographic Reduction Rule
("GRR") and the Passive Modality Rule ("PMR") to evaluate insurance
claims submitted by insureds or their assignees to GEICO.
The civil action involves breach of contract and declaratory
judgment claims brought by the Plaintiffs against GEICO. The
Plaintiffs alleged that GEICO violated the policies and Delaware
law by using the Rules to process no-fault personal injury
protection ("PIP") claims.
The Plaintiffs now seek a review of the May 25 order entered by the
Superior Court of Delaware.
The appellate case is captioned as YVONNE GREEN and REHABILITATION
ASSOCIATES, P.A., on behalf of themselves and all others similarly
situated, Plaintiffs-Appellants, v. GEICO GENERAL INSURANCE
COMPANY, Defendant-Appellee, Case No. 166,2021, in the Supreme
Court of the State of Delaware, filed on May 25, 2021.[BN]
Plaintiffs-Appellants YVONNE GREEN and REHABILITATION ASSOCIATES,
P.A., on behalf of themselves and all others similarly situated,
are represented by:
Richard H. Cross, Jr., Esq.
Christopher P. Simon, Esq.
Michael L. Vild, Esq.
CROSS & SIMON, LLC
1105 North Market Street, Suite 901
Wilmington, DE 19801
Telephone: (302) 777-4200
Facsimile: (302) 777-4224
E-mail: rcross@crosslaw.com
csimon@crosslaw.com
mvild@crosslaw.com
Defendant-Appellee GEICO GENERAL INSURANCE COMPANY is represented
by:
Paul A. Bradley, Esq.
MARON MARVEL BRADLEY ANDERSON & TARDY LLC
1201 North Market Street, Suite 900
Wilmington, DE 19899-0288
GOVERNMENT EMPLOYEES: Has Until June 7 to Respond to Class Cert Bid
-------------------------------------------------------------------
In the class action lawsuit captioned as JAMES LEE CONSTRUCTION,
INC., a Montana Corp., JAMES B. LEE, and TRACY D. LEE, husband and
wife, v. GOVERNMENT EMPLOYEES INSURANCE COMPANY, et. al., Case No.
9:20-cv-00068-DWM (D. Mont.), the Hon. Judge Donald W. Molloy
entered an order granting the Defendants unopposed motion for an
extension of time to file a response to the plaintiffs' motion for
class certification.
The defendants' response shall now be due no later than June 7,
2021.
The Government Employees Insurance Company is an American auto
insurance company with headquarters in Chevy Chase, Maryland. It is
the second largest auto insurer in the United States, after State
Farm.
A copy of the Court's order dated May 14, 2021 is available from
PacerMonitor.com at https://bit.ly/3i0NXCq at no extra
charge.[CC]
GRUPO TELEVISA: Faces Securities Class Action Over Unfair Scheme
----------------------------------------------------------------
Debra Cassens Weiss at abajournal.com reports that plaintiffs law
firm Robbins Geller Rudman & Dowd has been kicked off a securities
class action alleging that investors lost money when a Mexico-based
media company concealed a scheme to bribe soccer officials for
broadcasting rights.
U.S. District Judge Louis L. Stanton of the Southern District of
New York ousted the law firm because it failed to disclose that its
pension-fund client had invested in a Canadian fund that earned a
profit by shorting shares of the defendant, Grupo Televisa SAB,
according to Reuters and Law360.
Stanton said Robbins Geller had described its pension plan client
as a typical investor in a brief without revealing that the
Canadian fund made more money through its shorted position than the
pension fund lost in its Grupo Televisa SAB investment.
The misleading brief had led to Robbins Geller's appointment as
lead counsel in the case, Stanton said. The pension plan client was
removed as lead plaintiff last June after the short investment came
to light.
Robbins Geller represented the Colleges of Applied Arts and
Technology Pension Plan, which invested in Grupo Televisa SAB's
American depositary receipts, as well as Arrowstreet Capital, which
shorted the American depositary receipts. The short position earned
about $11 million for the pension plan's share of Arrowstreet
Capital, while the investment in the American depositary receipts
resulted in an alleged loss of $968,000.
Grupo Televisa SAB has denied paying bribes to officials of the
Federation Internationale de Football Association, known as FIFA.
The class action contends that Grupo Televisa SAB's American
depositary receipts shares lost value after the bribery scandal
came to light.
Robbins Geller had argued that the short position was too remote to
the pension plan's holdings to be material, and Arrowstreet
Capital's gains from the short position only offset other losses.
As a result, net profits flowing to the pension plan from
Arrowstreet Capital's short sales came to little or nothing.
Stanton rejected the argument.
"Robbins Geller's decision not to disclose the Arrowstreet trades,
and thus to assure the lucrative lead counsel position, was knowing
and intentional," Stanton said. "Robbins Geller's willingness to
submit so misleading a brief, in order to obtain a result for its
client which it predictably might not obtain if all relevant facts
were addressed, disqualifies it from continuing as counsel in this
case."
Darren Robbins of Robbins Geller told Reuters that Stanton's
interpretation of needed disclosure was "unprecedented," and the
firm will appeal. [GN]
GRUPO TELEVISA: Robbins Geller Disqualified From Securities Suit
----------------------------------------------------------------
In the case, In re GRUPO TELEVISA SECURITIES LITIGATION, Case No.
18 Civ. 1979 (LLS) (S.D.N.Y.), Judge Louis L. Stanton of the U.S.
District Court for the Southern District of New York disqualified
Robbins Geller Rudman & Down LLP from continuing as counsel in the
case.
Under the Private Securities Litigation Reform Act of 1995
("PSLRA"), it is the responsibility of the court to approve lead
plaintiffs that it determines are "most capable of adequately
representing the interests of class members" 15 U.S.C.
78u-4(a)(3)(B)(i), adopting the rebuttable presumption that the
most adequate plaintiff is the one who "has the largest financial
interest in the relief sought by the class." One of the
prerequisites of a class action is that "the claims or defenses of
the representative parties are typical of the claims or defenses of
the class."
During the class period, Plaintiff Colleges of Applied Arts and
Technology Pension Plan ("CAAT") held a long position of Televisa
ADR's on which it claims losses of $968,000. The other class
members, at the same market prices, would have suffered losses of a
similar nature, in smaller amounts.
But CAAT had something other class members did not. Through its
investment in Arrowstreet (Canada) Global World Alpha Extension
Fund I, which had shorted Televisa's ADR's, CAAT's share had a
short position of 460, 710 ADR's (437,633 for the 3-months)
totaling over $10.94 million, roughly three times what CAAT had
lost in its own long position.
The extraordinary circumstance that CAAT's interest in the short
sales by Arrowstreet could enrich CAAT's overall economic position
more than it was injured by large losses in CAAT's own long
holdings of Televisa ADR's was certainly unique among the
candidates for Lead Plaintiff.
As experienced practitioners of securities law, Robbins Geller is
well familiar with the pervading principle that it is fraudulent to
"omit to state a material fact necessary in order to make the
statements, in the light of the circumstances under which they were
made, not misleading." Yet, when Robbins Geller signed and filed
its May 4, 2018 Memorandum in support of CAAT's motion for
appointment "as Lead Plaintiff and approval of selection of
counsel" (i.e. Robbins Geller), it made no mention whatever of
CAAT's dramatic good fortune in Arrowstreet's short sales of
Televisa.
Robbins Geller's presentation was successful. The Court appointed
CAAT as the Lead Plaintiff on May 17, 2018, and appointed Robbins
Geller to the lucrative position of the Lead Counsel. Two years
later, when CAAT's investment in the Arrowstreet fund whose
profitable short sales of Televisa fortuitously surfaced, CAAT was
revealed to be remarkably atypical of the class, and was deposed as
the Lead Plaintiff.
Robbins Geller earnestly argues that it did not disclose to the
Court CAAT's returns from its Arrowstreet investment because they
are immaterial. They arise from transactions in which CAAT itself
did not participate, from Arrowstreet's independent investment
decisions which CAAT had nothing to do with, and in "units" of
Arrowstreet's portfolio whose losses in other holdings might more
than offset the gains from Televisa's short sales, resulting in no
net gain to CAAT. Robbins Geller and its expert cite cases
disallowing such "third party" transactions from consideration in
calculations of damages and other settings, and proclaim Robbins
Gellers's good faith in omitting any mention of the thus
irrelevant, remote matter of the short sales of Televisa securities
in CAAT's investment in the Arrowstreet fund.
Judge Stanton opines that those arguments may apply when the issue,
as in the cases Robbins Geller and its expert cites, is about legal
title or property rights in the claims, or of standing to sue for
losses, or of "determining how best to calculate compensable
losses." They are far off the point when the issue is an
applicant's qualifications to be Lead Plaintiff.
The Judge holds that Robbins Geller's decision not to disclose the
Arrowstreet trades, and thus to assure the lucrative Lead Counsel
position, was knowing and intentional. Robbins Geller omitted to
state material facts necessary in order to make the statements in
its memorandum, in light of the circumstances under which they were
made, not misleading. In the world of securities law, that is a
definition of fraud.
Robbins Geller's willingness to submit so misleading a brief, in
order to obtain a result for its client which it predictably might
not obtain if all relevant facts were addressed, disqualifies it
from continuing as counsel in the case. Robbins Geller is
dismissed from further service in the case, save facilitation of
its replacement by its successor.
Further activities in the case are stayed for 30 days to allow the
Lead Plaintiff to obtain other counsel.
A full-text copy of the Court's May 19, 2021 Opinion is available
at https://tinyurl.com/3ayp4n43 from Leagle.com.
HERFF JONES: Ahn Sues Over Failure to Protect Customers' Info
-------------------------------------------------------------
JUSTIN AHN, KEVIN BERSCH, LEIGHTON BLACKWOOD and KRISTIN WALKER,
individually and on behalf of all others similarly situated,
Plaintiffs v. HERFF JONES, LLC, Defendant, Case No. 3:21-cv-00727
(D. Conn., May 27, 2021) is a class action against the Defendant
for negligence, breach of implied contract, declaratory judgment,
unjust enrichment, and violations of the New York General Business
Law, California's Unfair Competition Law, California Consumer
Privacy Act, California's Consumers Legal Remedies Act.
The case arises from the Defendant's failure to protect the
personally identifiable information (PII) of its customers
following a data breach in May 2021. The Defendant also failed to
warn its customers of its inadequate information security practices
and its inefficient monitoring of its websites and ecommerce
platforms for security vulnerabilities and incidents. As a result
of the Defendant's negligence and omissions, the Plaintiffs and
Class members incurred fraudulent charges and some had their
accounts frozen, the suit contends.
Herff Jones, LLC is a company that sells and rents products related
to school graduation, with its principal place of business located
at 4625 W. 62nd Street, Indianapolis, Indiana. [BN]
The Plaintiffs are represented by:
Gary M. Klinger, Esq.
MASON LIETZ & KLINGER LLP
227 W. Monroe Street, Suite 2100
Chicago, IL 60606
Telephone: (202) 429-2290
Facsimile: (202) 429-2294
E-mail: gklinger@masonllp.com
- and –
Carl V. Malmstrom, Esq.
FREEMAN & HERZ LLC
111 W. Jackson Blvd., Suite 1700
Chicago, IL 60604
Telephone: (312) 984-0000
Facsimile: (212) 545-4653
E-mail: malmstrom@whafh.com
- and –
M. Anderson Berry, Esq.
CLAYEO C. ARNOLD, A PROFESSIONAL LAW CORP.
865 Howe Avenue
Sacramento, CA 95825
Telephone: (916) 777-7777
Facsimile: (916) 924-1829
E-mail: aberry@justice4you.com
HERFF JONES: Quintana Sues Over Data Breach
-------------------------------------------
Connie Quintana, on behalf of herself and all others similarly
situated, Plaintiffs, v. Herff Jones, LLC, Defendant, Case No.
21-cv-01350 (S.D. Ind., May 26, 2021), seeks all monetary and
non-monetary relief allowed by law, including restitution of all
profits stemming from unfair, unlawful and fraudulent business
practices, declaratory and injunctive relief, reasonable attorneys'
fees and costs under California Code of Civil Procedure,
California's Customer Records Act and California's Consumer Privacy
Act.
Herff Jones manufactures and sells educational recognition and
achievement products and motivational materials with production
facilities across the United States and Canada. Quintana purchased
her graduation wardrobe from it's website and used one of her
payment cards to make this purchase. She then received a
notification from her university informing her that Herff Jones had
sustained a data breach and that she should be on the lookout for
suspicious activity on her payment card that she used at Herff
Jones. [BN]
Plaintiff is represented by:
Gary E. Mason, Esq.
David K. Lietz, Esq.
MASON LIETZ & KLINGER LLP
5101 Wisconsin Avenue NW, Suite 305
Washington, DC 20016
Phone: (202) 429-2990
Fax: (202) 429-2294
Email: gmason@masonllp.com
dlietz@masonllp.com
- and -
Aaron Siri, Esq.
Mason A. Barney, Esq.
SIRI & GLIMSTAD LLP
200 Park Avenue, Seventeenth Floor
New York, NY 10166
Phone: (212) 532-1091
Email: aaron@sirillp.com
mbarney@sirillp.com
- and -
Gary M. Klinger, Esq.
MASON LIETZ & KLINGER LLP
227 W. Monroe Street, Suite 2100
Chicago, IL 60606
Phone: (202) 429-2290
Fax: (202) 429-2294
Email: gklinger@masonllp.com
HIUYIN LAM: Chen Sues Over Unpaid Overtime for Delivery Persons
---------------------------------------------------------------
GUANGFU CHEN and PEIZHENG FAN, on behalf of themselves and all
others similarly situated, Plaintiffs v. HIUYIN LAM a/k/a Hiu Yin
Lam and a/k/a Wendy Lam; JESSICA "DOE", Defendants, Case No.
1:21-cv-04757 (S.D.N.Y., May 27, 2021) is a class action against
the Defendants for violations of the Fair Labor Standards Act and
the New York Labor Law by failing to compensate the Plaintiffs and
all others similarly situated delivery persons overtime pay for all
hours worked in excess of 40 hours in a workweek and failing to
reimburse business related expenses.
The Plaintiffs were employed by the Defendants as delivery persons
at Matsu Japanese Fusion restaurant located at 411 E. 70th St., New
York, New York. [BN]
The Plaintiffs are represented by:
John Troy, Esq.
Aaron Schweitzer, Esq.
TROY LAW, PLLC
41-25 Kissena Boulevard, Suite 103
Flushing, NY 11355
Telephone: (718) 762-1324
HOLIDAY HOSPITALITY: Aaron Hotel Sues Over IHG Franchise System
---------------------------------------------------------------
AARON HOTEL GROUP, LLC, on behalf of itself and all others
similarly situated, Plaintiff v. HOLIDAY HOSPITALITY FRANCHISING,
LLC, SIX CONTINENTS HOTELS, INC. d/b/a INTERCONTINENTAL HOTELS
GROUP and IHG OWNERS ASSOCIATION, INC., Defendants, Case No.
3:21-cv-00727 (D. Conn., May 27, 2021) is a class action against
the Defendants for breach of contract, breach of fiduciary duty,
declaratory judgment, and violations of the Connecticut Unfair
Trade Practices Act and the Sherman Act.
The case arises from the Defendants' alleged engagement in
fraudulent, anticompetitive, and discriminatory business practices
in connection with InterContinental Hotels Group (IHG) hotel
franchise system. Under the Defendants' franchise scheme,
franchisees are required to use certain mandated vendors and
suppliers for the purchase of goods and services necessary to run a
hotel. The Defendants force its franchisees to frequently undertake
expensive renovations, remodeling and construction as part of a
Property Improvement Plan (PIP), and in so doing manipulates and
shortens the warranty periods on mandated products the franchisees
must purchase. Furthermore, the above-market priced products which
the Defendants force franchisees to purchase through the IHG
marketplace and related programs is frequently of inferior quality.
As a result of the Defendants' unfair and deceptive acts or
practices, the Plaintiff and Class members have been injured and
have suffered monetary damages, the suit alleges.
Aaron Hotel Group, LLC is a hotel company located in Windsor Locks,
Connecticut.
Holiday Hospitality Franchising, LLC is an affiliate of
InterContinental Hotels Group, which offers and sells Holiday Inn
brand franchises.
Six Continents Hotels, Inc., doing business as InterContinental
Hotels Group, is a hotel company with its principal place of
business in Georgia.
IHG Owners Association, Inc. is an association of franchise hotel
owners based in Georgia. [BN]
The Plaintiff is represented by:
Justin E. Proper, Esq.
WHITE AND WILLIAMS, LLP
1650 Market Street
One Liberty Place, Suite 1800
Philadelphia, PA 19103-7395
Telephone: (215) 864-7165
E-mail: properj@whiteandwilliams.com
- and –
Andrew P. Bleiman, Esq.
Mark Fishbein, Esq.
MARKS & KLEIN, LLP
1363 Shermer Road, Suite 318
Northbrook, IL 60062
Telephone: (312) 206-5162
Facsimile: (732) 219-0625
E-mail: andrew@marksklein.com
mark@ marksklein.com
- and –
Justin M. Klein, Esq.
MARKS & KLEIN, LLP
63 Riverside Avenue
Red Bank, NJ 07701
Telephone: (732) 747-7100
Facsimile: (732) 219-0625
E-mail: justin@marksklein.com
HOUSTON WIRE: Misleads Stockholders to Approve Merger, Franchi Says
-------------------------------------------------------------------
ADAM FRANCHI, on behalf of himself and all others similarly
situated, Plaintiff v. HOUSTON WIRE & CABLE COMPANY, ROY W. HALEY,
MARGARET S. LAIRD, DAVID NIERENBERG, JAMES L. POKLUDA, III,
SANDFORD W. ROTHE, WILLIAM H. SHEFFIELD, and G. GARY YETMAN,
Defendants, Case No. 1:21-cv-00771-UNA (D. Del., May 27, 2021) is a
class action against the Defendants for violations of Sections
14(a) and 20(a) of the Securities Exchange Act of 1934.
According to the complaint, the Defendants authorized the issuance
of a false and misleading proxy statement with the U.S. Securities
and Exchange Commission (SEC), which recommends Houston Wire &
Cable's stockholders to vote in favor of the proposed acquisition
of Houston Wire by Omni Cable, LLC. Specifically, the proxy
statement allegedly fails to provide Houston Wire's stockholders
with material information or provides them with materially
misleading information concerning: (i) certain financial
projections; (ii) the data and inputs underlying the financial
valuation analyses that support the fairness opinion provided by
the company's financial advisor, Johnson Rice & Company, LLC; and
(iii) the background of the proposed transaction, including the
reasons why the board did not obtain a fairness opinion from its
second financial advisor, William Blair & Company, LLC. It is
imperative that the material information omitted from the proxy
statement is disclosed to the company's stockholders prior to the
forthcoming stockholder vote so that they can properly exercise
their corporate suffrage rights, says the suit.
Houston Wire & Cable Company is a wire and cable provider based in
Houston, Texas. [BN]
The Plaintiff is represented by:
Brian D. Long, Esq.
LONG LAW, LLC
3828 Kennett Pike, Suite 208
Wilmington, DE 19807
Telephone: (302) 729-9100
E-mail: BDLong@longlawde.com
ILLINOIS: Bid to Reconsider Bailey's Intervention in Ross Denied
----------------------------------------------------------------
In the case, DEMETRIUS ROSS, on behalf of himself and all others
similarly situated, Plaintiffs v. GREG GOSSETT, et al., Defendants,
Case No. 15-CV-309-SMY (S.D. Ill.), Judge Staci M. Yandle of the
U.S. District Court for the Southern District of Illinois denied
non-party Dennis L. Bailey's Motion for Extension of Time and
Motion for Reconsideration.
Mr. Bailey previously sought to intervene in the case. However,
his request was denied because his claim alleging a deprivation of
property while he was incarcerated by the Illinois Department of
Corrections is unrelated to the class action lawsuit. In his
motion for reconsideration, Bailey now asserts that he suffered the
same injuries during the same institutional shakedowns that are at
the heart of the case.
Judge Yandle holds that pursuant to Federal Rule of Civil Procedure
24(b)(1)(B), on timely motion, the court may permit anyone to
intervene who has a claim or defense that shares with the main
action a common question of law or fact. Even if Bailey does have
similar claims, as a purported class member, he may intervene in
the lawsuit and protect his individual interests only if class
certification is denied. Class certification was granted on March
26, 2020; accordingly, Bailey's motions are denied.
A full-text copy of the Court's May 19, 2021 Order is available at
https://tinyurl.com/yeas24pr from Leagle.com.
JIANPU TECHNOLOGY: Glancy Named Lead Counsel in Africa Class Suit
-----------------------------------------------------------------
In the case, ENRIQUE AFRICA, individually and on behalf of all
others similarly situated, Plaintiff v. JIANPU TECHNOLOGY INC., et
al., Defendants, Case No. 21-CV-1419 (JMF) (S.D.N.Y.), Judge Jesse
M. Furman of the U.S. District Court for the Southern District of
New York appointed the Plaintiff as the Lead Plaintiff, and his
counsel, Glancy Prongay & Murray LLP, as the Lead Counsel.
On Feb. 17, 2021, Plaintiff Michael Guttentag filed a putative
class action lawsuit on behalf of purchasers of Jianpu securities
between May 29, 2018, and Feb. 16, 2021. The Complaint alleges
violations of Sections 10(b) and 20(a) of the Securities Exchange
Act of 1934, 15 U.S.C. Section 78a et seq., and Rule 10b-5,
promulgated thereunder. The same day that Guttentag filed the
Complaint, he also published notice of the lawsuit, in accordance
with the Private Securities Litigation Reform Act ("PSLRA"), 15
U.S.C. Section 78u-4(a)(3)(A).
On April 19, 2021, three motions were filed seeking appointment as
lead plaintiff: one by Enrique Africa; one by Xiaoming Zhou; and
one by Yan Qin Li. On April 28, 2021, Li filed a notice of
non-opposition to the competing lead plaintiff motions, and the
Court later deemed Li's motion withdrawn. On May 13, 2021, the
Court held a telephone conference on the record to address the
remaining two competing lead plaintiff motions, after which it
reserved judgment.
The PSLRA directs courts to presume that the most adequate lead
plaintiff is the movant who, "in the determination of the court,
has the largest financial interest in the relief sought by the
class" and "otherwise satisfies the requirements of Rule 23 of the
Federal Rules of Civil Procedure." The statute does not define
"largest financial interest," but "courts have generally relied on"
four factors identified in Lax v. First Merchants Acceptance Corp.,
Nos. 97-CV-2715 et al., 1997 WL 461036 (N.D. Ill. Aug. 11, 1997),
commonly known as "the Lax factors." The four factors are: "(1)
the number of shares purchased; (2) the number of net shares
purchased; (3) total net funds expended by the plaintiffs during
the class period; and (4) the approximate losses suffered by the
plaintiffs."
Mr. Zhou claims the largest loss -- $48,944.84 -- of any movant.
But Africa argues that the vast majority of Zhou's losses should
not be considered because, following the Supreme Court's decision
in Dura Pharmaceuticals, Inc. v. Broudo, 544 U.S. 336 (2005),
courts have recognized that "losses resulting from in-and-out
transactions, which took place during the class period, but before
the misconduct identified was ever revealed to the public are not
to be included in loss calculations for purposes of selecting lead
plaintiff." "When these transactions are removed from Zhou's loss
calculation," Africa argues, "Zhou's loss is only $2.61," far less
than Africa's $2,307.37.
Mr. Zhou, in turn, notes that "numerous courts have held that
partial corrective disclosures enable a plaintiff to prove that it
was harmed notwithstanding the fact it sold its shares prior to the
complete disclosure of the alleged fraud,'" and that such "partial
corrective disclosures are alleged throughout the Complaint." In
the alternative, he also argues it is "not settled case law that
being in-and-out automatically disqualified movants from lead
plaintiff appointment." At the May 13th conference, Africa argued
that the partial corrective disclosures alleged in the Complaint
have no bearing on Zhou's losses because they occurred months
before Zhou first purchased any Jianpu shares in October 2020.
Judge Furman finds that Africa has the larger financial interest in
the relief sought by the class. He also finds that Africa
satisfies the requirements of Rule 23 of the Federal Rules of Civil
Procedure. Significantly, as part of a PSLRA lead plaintiff
motion, the moving plaintiff must make only a preliminary showing
that the adequacy and typicality requirements under Rule 23 have
been met. Africa satisfies the typicality requirement because he
claims to have suffered losses from the Defendants' alleged
misconduct during the class period, and he satisfies the adequacy
requirement because his interests are aligned with those of the
class and he has retained experienced counsel.
Accordingly, Africa is appointed as the Lead Plaintiff, and Glancy
Prongay & Murray LLP -- his counsel -- is appointed as the Lead
Counsel. Per the Court's Order of March 17, 2021, the Lead Counsel
and the Defendant will confer and file a joint letter no later than
one week from the date of the Memorandum Opinion and Order
proposing a schedule going forward.
The Clerk of Court is directed to update the docket to reflect the
appointment of Africa as the Lead Plaintiff, to conform the docket
to the caption of the Memorandum Opinion and Order, and to
terminate ECF Nos. 15 and 18.
A full-text copy of the Court's May 19, 2021 Memorandum Opinion &
Order is available at https://tinyurl.com/anj5zdc6 from
Leagle.com.
JOHNSON & JOHNSON: High Court Won't Hear Appeal on $2.1BB Verdict
-----------------------------------------------------------------
Johnson and Johnson suffered a setback June 1 after the United
States Supreme Court declined to review a $2.1 billion verdict in a
litigation alleging that talc in the Company's baby powder products
cause cancer.
In June last year, the Missouri Court of Appeals reversed in part
and affirmed in part a July 2018 verdict of $4.7 billion in Ingham
v. Johnson & Johnson, et al., No. ED 207476 (Mo. App.), reducing
the overall award to $2.1 billion and, with additional interest as
of April 4, 2021, as the Company pursues further appeal, is
approximately $2.5 billion.
An application for transfer of the case to the Missouri Supreme
Court was subsequently denied. On November 3, 2020, the Missouri
Supreme Court announced its decision not to hear the Company's
appeal of the Ingham verdict.
In March 2021, the Company filed a petition for certiorari, seeking
a review of the Ingham decision by the United States Supreme Court.
In April 2021, the Plaintiffs filed their opposition to the
petition.
On Tuesday, the Company said it will make a $2.5 billion payment,
which includes total accrued interest, in June 2021.
The Company added it has recorded a reserve consistent with the
Ingham verdict, which was reflected in its 2020 fiscal year-end
results.
In its most recent quarterly report on Form 10-Q for the
three-month period ended April 4, 2021, the Company said it
continues to believe that it has strong legal grounds for the
appeal of Ingham verdict, as well as other talc verdicts that it
has appealed.
"Notwithstanding the Company's confidence in the safety of its talc
products, in certain circumstances the Company has and may settle
cases. The Company has established an accrual for defense costs and
reserves for the resolution of certain cases and claims, including
the Ingham decision currently on appeal, in connection with product
liability litigation associated with body powders containing talc,"
the Company added.
Personal injury claims alleging that talc causes cancer have been
made against Johnson & Johnson Consumer Inc. and Johnson & Johnson
arising out of the use of body powders containing talc, primarily
JOHNSON'S(R) Baby Powder. The number of pending personal injury
lawsuits continues to increase, and the Company continues to
receive information with respect to potential costs and the
anticipated number of cases. Lawsuits primarily have been filed in
state courts in Missouri, New Jersey and California, and suits have
also been filed outside the United States. The majority of cases
are pending in federal court, organized into a multi-district
litigation (MDL) in the United States District Court for the
District of New Jersey. In the MDL, the parties sought to exclude
experts through Daubert motions. In April 2020, the Court issued
rulings that limit the scope of testimony, including some theories
and testing methods, for certain plaintiff expert witnesses and
denied plaintiffs' attempt to limit the scope of testimony of
certain of the Company's witnesses. With this ruling made,
case-specific discovery has begun per the Court's directive.
In talc cases that previously have gone to trial, the Company has
obtained a number of defense verdicts, but there also have been
verdicts against the Company, many of which have been reversed on
appeal.
As of April 4, 2021, the Company disclosed $172.5 billion in total
assets against $106.7 billion in total liabilities. It posted $6.2
billion in net earnings for the quarter, up from $5.8 billion for
the same quarter last year.
KPMG LLP: Seeks Sixth Circuit Review in Cosby Securities Suit
-------------------------------------------------------------
Defendant KPMG LLP filed an appeal from a court ruling entered in
the lawsuit entitled LEWIS COSBY, ERIC MONTAGUE, and MARTIN
ZIESMAN, as Co-Trustee for the Carolyn K. Ziesman Revocable Trust,
on behalf of themselves and all others similarly situated,
Plaintiffs v. KPMG, LLP, Defendant, Case No. 3:16-cv-00121, in the
United States District Court for the Eastern District of Tennessee
at Knoxville.
The lawsuit is a securities action, whereby Plaintiffs allege
claims pursuant to Section 10(b) of the Securities Exchange Act and
Rule 10b-5 and Section 11 of the Securities Act. Plaintiffs'
Section 10 claim alleges that Defendant fraudulently concealed
material information about Miller Energy Resources, Inc., which
caused Miller Energy to misstate and omit material facts in its
financial reports. With respect to the Section 11 claim, Plaintiffs
allege that the offering documents for the securities were
materially misleading. Defendant KPMG is an accounting firm that
Miller Energy retained as its independent auditor on February 1,
2011.
As reported in the Class Action Reporter on May 19, 2021, Judge
Thomas A. Varlan of the U.S. District Court for the Eastern
District of Tennessee overruled the parties' objections to
Magistrate Judge Debra C. Poplin's order.
The Magistrate Judge granted in part and denied in part the
Defendant's motion to exclude the reports and testimony of Chad
Coffman, Plaintiffs' expert, regarding the purported efficiency of
the markets for Miller Energy's securities and whether damages can
be calculated on a class-wide basis.
On May 21, 2019, Defendant KPMG filed the motion to exclude. On
Dec. 10, 2019, Judge Poplin held a hearing regarding the motion to
exclude, among other motions. She then issued an order granting in
part and denying in part the Defendant's motion. Both parties filed
objections to Judge Poplin's Order, responses to each other's
objections, and replies.
The Defendant now seeks a review of the Court's Order dated May 7,
2021 on a motion to stay proceedings pending appeal. The Court
directed the Clerk of Court to lift the stay in this matter. In
light of the Court's decision to lift the stay, the jury trial in
this matter has been set for Tuesday, February 8, 2022, and the
final pretrial conference has been set for Tuesday, February 1,
2022.
The appellate case is captioned as In re: KPMG LLP, Case No.
21-505, in the United States Court of Appeals for the Sixth
Circuit, filed on May 21, 2021.[BN]
Defendant-Petitioner KPMG LLP is represented by:
Gregory G. Ballard, Esq.
MCDERMOTT, WILL & EMERY
340 Madison Avenue, 14th Floor
New York, NY 10173-1922
Telephone: (212) 547-5587
E-mail: gballard@mwe.com
- and -
Paul Savage Davidson, Esq.
WALLER
511 Union Street, Suite 2700
Nashville, TN 37219
Telephone: (615) 244-6380
E-mail: paul.davidson@wallerlaw.com
Plaintiffs-Respondents LEWIS COSBY, ERIC MONTAGUE, and MARTIN
ZIESMAN, as Co-Trustee for the Carolyn K. Ziesman Revocable Trust,
on behalf of themselves and all others similarly situated, are
represented by:
Gordon Ball, Esq.
W. GORDON BALL, ATTORNEY AT LAW
7001 Old Kent Drive
Knoxville, TN 37919
Telephone: (865) 525-7028
E-mail: gball@gordonball.com
- and -
Laura Posner, Esq.
COHEN, MILSTEIN, SELLERS & TOLL
88 Pine Street, Fourteenth Floor
New York, NY 10022
Telephone: (212) 220-2925
- and -
Steven J. Toll, Esq.
COHEN, MILSTEIN, HAUSFELD & TOLL
1301 Fifth Avenue, Suite 2905
Seattle, WA 98101-0000
Telephone: (202) 408-4600
E-mail: stoll@cohenmilstein.com
KRISHNA SCHAUMBURG: Summary Judgment in Sekura Suit Affirmed
------------------------------------------------------------
In the case, WEST BEND MUTUAL INSURANCE COMPANY, Appellant v.
KRISHNA SCHAUMBURG TAN, INC., et al., Appellees, Case No. 125978
(Ill.), the Supreme Court of Illinois affirms the entry of summary
judgment for Krishna.
Klaudia Sekura filed a class-action lawsuit against Krishna, a
tanning salon and franchisee of L.A. Tan, and alleged that Krishna
(1) violated the Biometric Information Privacy Act (Act) (740 ILCS
14/1, et seq. (West 2018)) provisions relating to the collection of
biometric identifiers and biometric information when it scanned
Sekura's and its other customers' fingerprints and (2) violated the
Act's provisions relating to the disclosure of biometric
identifiers and information when it disclosed biometric information
containing her fingerprints "to an out-of-state third-party vendor,
SunLync."
Ms. Sekura purchased a membership from Krishna that gave her access
to L.A. Tan's tanning salons. Sekura's membership required Sekura
to provide Krishna with her fingerprints.
Ms. Sekura filed a three-count class-action lawsuit against Krishna
and alleged in count I that Krishna violated the Act as follows:
"Krishna systematically and automatically collected, used, stored,
and disclosed their customers' biometric identifiers or biometric
information without first obtaining the written release required by
740 ILCS 14/15(b)(3). Specifically, Krishna Tan systematically
disclosed Plaintiff's and the Class's biometric identifiers and
biometric information to SunLync, an out-of-state *** vendor.
Krishna Tan does not provide a publicly available retention
schedule or guidelines for permanently destroying its customers'
biometric identifiers and biometric information as specified by the
Act."
In count II, Sekura alleged that Krishna was unjustly enriched
because Krishna failed to comply with the Act and that Krishna
should not be allowed to retain the money Sekura paid to Krishna.
In count III, Sekura alleged that Krishna was negligent when it
breached its duty of reasonable care by violating the Act. S
ekura's prayer for relief sought "statutory damages of $1,000 for
each of Krishna Tan's violations of the Act pursuant to 740 ILCS
14/20(1) (West 2020)."
Krishna tendered Sekura's lawsuit to West Bend, its insurer, and
requested a defense. West Bend filed a declaratory judgment action
against Krishna and Sekura contending that it did not owe a duty to
defend Krishna against Sekura's lawsuit. When West Bend and
Krishna filed cross-motions for summary judgment, Sekura joined
Krishna's motion for summary judgment but sought alternative
relief. The trial court entered a judgment for Krishna. West Bend
appealed, and the appellate court affirmed the trial court's
decision.
The appellate court found that the common understandings and
dictionary definitions of publication clearly include both a
limited sharing of information with a single party and the broad
sharing of information to multiple recipients that the court viewed
as a publication under Valley Forge. The appellate court held that
the allegations in Sekura's complaint fall within or potentially
within West Bend's policies and, therefore, West Bend has a duty to
defend Krishna. The appellate court also held that the violation
of statutes exclusion does not bar coverage to Krishna because of
the exclusion's title and because the TCPA and CAN-SPAM Act are two
statutes that are listed in the exclusion and both regulate methods
of communication. It further held that the violation of statutes
exclusion "applies to statutes that govern certain methods of
communication, i.e., e-mails, faxes, and phone calls." Therefore,
the appellate court affirmed the decision of the trial court.
The Supreme Court allowed West Bend's petition for leave to
appeal.
The Supreme Court finds, based on its review of dictionaries,
treatises, and the Restatement, that the term "publication" has at
least two definitions and means both the communication of
information to a single party and the communication of information
to the public at large. If a term has multiple reasonable
definitions or is subject to more than one reasonable
interpretation within the context in which it appears, as in West
Bend's policies, the term is ambiguous.
Therefore, because the term "publication" in West Bend's policies
has more than one definition, the term is ambiguous and will be
strictly construed against the insurer who drafted the policies.
Accordingly, the Supreme Court adopts the construction used by
Krishna and the appellate court and construes the term publication
in West Bend's policies to include a communication with a single
party, like SunLync.
Because West Bend's policy does not define the phrase "right of
privacy," the Supreme Court agains look to dictionary definitions.
Courts define the right to secrecy as the right to keep certain
information confidential. The Act protects a secrecy interest --
in the case, the right of an individual to keep his or her personal
identifying information like fingerprints secret. Under the Act,
disclosing a person's biometric identifiers or information without
their consent or knowledge necessarily violates that person's right
to privacy in biometric information. Accordingly, the Supreme
Court finds that Sekura's assertion that Krishna shared her
biometric identifiers and information with SunLync alleges a
potential violation of Sekura's right to privacy within the purview
of West Bend's policies.
Having construed the terms in West Bend's policies, the Supreme
Court determines whether the allegations in Sekura's complaint fall
within or potentially within West Bend's policies' coverage for a
personal injury or an advertising injury. First, it finds that the
allegations in Sekura's complaint that Krishna shared her biometric
identifiers and information with SunLync allege or potentially
allege that Sekura suffered a personal injury that comes within the
purview of West Bend's policies. Second, it finds that the
allegations in Sekura's complaint alleging that Krishna shared
Sekura's biometric identifiers and information with SunLync fall
within or potentially within the definition for the term
publication in West Bend's policies. Finally, it finds that the
allegations in Sekura's complaint that Krishna shared her biometric
identifiers and information with SunLync fall within or potentially
within the term "right of privacy" in West Bend's policies.
Therefore, the Supreme Court holds the allegations in Sekura's
complaint fall within or potentially within West Bend's policies'
coverage for personal injury or advertising injury because Sekura's
complaint contained allegations that alleged Krishna shared
biometric identifiers and information with SunLync, which was
potentially a publication that violated Sekura's right to privacy.
Accordingly, it holds West Bend has a duty to defend Krishna.
Next, the Supreme Court considers whether the violation of statutes
exclusion in West Bend's policies bars coverage to Krishna. West
Bend maintains the exclusion bars coverage because it applies to
statutes that "prohibit the communicating of information" and the
Act limits the communication of information.
The Supreme Court finds that since the Act is not a statute of the
same kind as the TCPA and the CAN-SPAM Act and since the Act does
not regulate methods of communication, the violation of statutes
exclusion does not apply to the Act. It also holds that the
violation of statutes exclusion in West Bend's policies does not
bar West Bend from providing coverage to Krishna for Sekura's
complaint. Accordingly, it holds that West Bend has a duty to
defend Krishna against Sekura's lawsuit.
Finally, because it has found that West Bend has a duty to defend
Krishna in the case and that the violation of statutes exclusion
does not bar West Bend from defending Krishna, the Supreme Court
finds there is no need to determine whether the data compromise
endorsement applies. Courts of review will not decide moot or
abstract questions, will not review cases merely to establish
precedent, and will not render advisory opinions. Moreover, courts
in Illinois will not consider issues where the result will not be
affected regardless of how those issues are decided. Therefore,
the Supreme Court does not address the remaining issue.
In conclusion, the Supreme Court finds that the allegations in
Sekura's complaint fall within or potentially within West Bend's
polices' coverage because the underlying complaint alleges that
Sekura suffered a nonbodily personal injury or advertising injury
(emotional upset, mental anguish, and mental injury); Krishna's
alleged sharing of Sekura's biometric identifiers and biometric
information with SunLync constitutes a "publication" within the
purview of West Bend's policies; and Krishna's alleged sharing of
Sekura's biometric identifiers and biometric information
(fingerprints) with SunLync potentially violated Sekura's right to
privacy. Finally, it finds that the violation of statutes
exclusion in West Bend's policies does not apply to the Act.
Accordingly, the Supreme Court holds West Bend has a duty to defend
Krishna in Sekura's lawsuit. It affirms the judgment of the
appellate court, which affirmed the judgment of the circuit court.
A full-text copy of the Court's May 20, 2021 Opinion is available
at https://tinyurl.com/499pfcrk from Leagle.com.
LIMETREE BAY: Toxic Chemical Releases Prompt Class Action Lawsuit
-----------------------------------------------------------------
A group of residents, property owners and visitors to the island of
St. Croix have filed class action claims against a local oil
refinery, alleging that the facility owned by Limetree Bay Ventures
routinely emits dangerous airborne chemicals and endangers their
health.
The litigation seeks the formation of two classes, one for the
funding of a long-term, court-supervised medical monitoring
program, and a second class for compensation for negligence and
nuisance claims among property owners.
According to the lawsuit, there have been ongoing airborne chemical
releases from the refinery for the past 18 months, affecting
communities in the western portion of the 84 square-mile island.
The Virgin Island Department of Health and private testing labs
have documented emissions that include hydrogen sulfides, sulfur
dioxide, sulfur oxides and oil droplets. The lawsuit states that
concentrations of such chemicals in the atmosphere can result in
adverse health conditions, including respiratory distress, skin
conditions, mental impairment and cancer.
In addition, the airborne releases have created a foul odor,
causing residents to experience headaches, coughing, nausea and
other symptoms. At one point, the intense smell forced the closure
of three neighboring schools for multiple days.
"The people of these communities have suffered from any number of
concerning and potentially deadly effects from the reckless
reopening of this facility," says Warren Burns of Burns Charest
LLP, which filed the proposed class action. "The problems with this
refinery should be fixed, and the needs of those who have suffered
from those problems should be addressed."
Limetree Bay Ventures acquired the 55-year-old refinery in 2018,
more than 10 years after the facility was shut down by its previous
owners. According to the lawsuit, the project faced multiple delays
and mounting financial pressures before resuming full operations in
February 2021.
St. Croix is the largest of the U.S. Virgin Islands, located 65
miles southeast of Puerto Rico. Last month officials with the U.S.
Environmental Protection Agency indicated that the agency would
"send experts and staff to the facility to conduct a joint
investigation" with territory officials.
The lawsuit is Helen Shirley et al. v. Limetree Bay Ventures et
al., Case No. SX-2021-CV-00411 in the Superior Court of the Virgin
Islands.
Burns Charest represents clients in large, complex class actions;
antitrust cases; oil and gas royalty disputes; environmental
pollution cases; mass torts; and asbestos exposure
claims. The firm has offices in Dallas, New Orleans and
Washington, D.C. To learn more,
visit http://www.burnscharest.com. [GN]
LIMETREE REFINERY: Faces 2nd Class Action Over Toxic Emissions
--------------------------------------------------------------
Patricia Borns at stthomassource.com reports that a second lawsuit
was filed seeking damages from Limetree Bay and its investment
partners for St. Croix residents affected by the toxic emissions
and since the facility resumed operations in February after eight
mothballed years.
Unlike a previous lawsuit filed seeking medical monitoring as well
as nuisance damages, the plaintiffs represented by attorney John
Dema seek compensation solely for the lost use and enjoyment of
their property.
"Limetree's operations have limited residents' ability to use their
homes, have polluted the cisterns of many area homes preventing
residents from using their water, have caused residents to
experience a host of nuisance-level discomforts (e.g., odor,
burning eyes, nose and throat, headaches, nausea, worry) and have
otherwise impeded the residents' use and enjoyment of their homes,"
the complaint alleges.
The plaintiffs, who live in Strawberry Hill, "seek to represent all
individuals who have resided in the neighborhoods north, northwest,
west and southwest of the Limetree complex on or after January 1,
2020."
Both lawsuits have been filed in the Superior Court's Complex
Litigation Section, which as assigned a judge, the Honorable
Alphonso G. Andrews Jr. after more than a year without one.
With more plaintiffs and cases possible in the near future, the
court may eventually need to create a steering committee with a
lead attorney for them all. [GN]
LOU TAGE: Faces Enriquez Wage-and-Hour Suit in E.D. New York
------------------------------------------------------------
JOSE ENRIQUEZ, on behalf of himself and all others similarly
situated, Plaintiff v. LOU TAGE INC. d/b/a ROBKE'S COUNTRY INN,
LOUIS SELVAGGIO and LOUIS SELVAGGIO, JR., Defendants, Case No.
2:21-cv-03023 (E.D.N.Y., May 27, 2021) is a class action against
the Defendants for violations of the Fair Labor Standards Act and
the New York Labor Law including failure to pay wages for all hours
worked, failure to issue timely payment of wages, failure to
furnish accurate wage statements for each pay period, failure to
provide a wage notice upon employment, and unjust enrichment.
Mr. Enriquez worked for the Defendants as a server from January
2020 until March 7, 2021.
Lou Tage Inc., doing business as Robke's Country Inn, is an owner
and operator of a restaurant, with its principal place of business
at 427 Fort Salonga Road, Northport, New York. [BN]
The Plaintiff is represented by:
David D. Barnhorn, Esq.
Peter A. Romero, Esq.
LAW OFFICE OF PETER A. ROMERO PLLC
490 Wheeler Road, Suite 250
Hauppauge, NY 11788
Telephone: (631) 257-5588
MIDDLE KENTUCKY: Class in Campbell Suit Conditionally Certified
---------------------------------------------------------------
In the case, ALBERTA CAMPBELL, on behalf of herself and others
similarly situated, Plaintiff v. MIDDLE KENTUCKY COMMUNITY ACTION
PARTNERSHIP, INC., Defendant, Case No. 5:20-CV-222-REW (E.D. Ky.),
Judge Robert E. Weir of the U.S. District Court for the Eastern
District of Kentucky, Central Division, Lexington, granted in part
the Plaintiff's motion for conditional class certification of a
Fair Labor Standards Act collective.
Plaintiff Campbell initiated the putative collective action against
Defendant Middle Kentucky on behalf of herself and other workers.
The Plaintiff claims violations of state and federal overtime
laws.
Middle Kentucky is a non-profit that provides services to
low-income families in Eastern Kentucky. A portion of the services
offered includes transportation services; Transportation Drivers,
as Middle Kentucky employees, pick up clients and transport them to
various locations, including "doctor offices, clinics, and
hospitals." The Plaintiff was employed as a Transportation Driver
for Middle Kentucky from June 2015 until November 2019.
Campbell claims that Middle Kentucky did not pay her overtime for
any time she worked over forty hours per week. In lieu of
overtime, Campbell claims that Middle Kentucky required her to
"bank" her overtime hours to be used for vacation time in the
future. Similarly, Campbell claims that the company miscategorized
her as an overtime exempt worker while her job duties actually "did
not include exempt work." Campbell seeks payment and additional
liquidated damages for all unpaid overtime wages under 29 U.S.C
Section 216 (Count I), and under KRS 337.285 (Count II).
Campbell pleads that her FLSA2 claim is "typical of the experiences
of Class Members," with respect to her pay and job duties. She
claims that Middle Kentucky "has a common pay policy and/or pay
practice" of mischaracterizing Transportation Drivers as exempt and
then failing to pay them the proper overtime wage.
Ms. Campbell seeks conditional certification of a collective
defined as: "Current and former Transportation Drivers who worked
for Defendant from three years prior to the filing of this lawsuit
to the present."
In support, the Plaintiff attaches her own declaration, as well as
a declaration of former Middle Kentucky Transportation Driver
Robert Back, and a declaration of former Middle Kentucky
Transportation Driver Jaimie Gross. Generally, the DE
17-3-document suite coincides with and lends support to Campbell's
pleaded allegations, in particular as to similarity.
Ms. Campbell seeks only notice-stage certification. The Defendant
strenuously advocates for a more demanding standard. It points the
Court to various district court decisions that have, on the facts
and postures presented in those cases, "held the moving party to `a
higher standard of proof," quoting Anderson v. McCarthy Burges &
Wolff, Inc., No. 1:14-CV-617, 2015 WL 224936, at *2-3 (N.D. Ohio
Jan. 15, 2015)).
Judge Weir for several reasons, finds the Sixth Circuit's published
endorsement of the lenient notice-stage standard controlling.
First, the Defendant cites to no Circuit precedent approving a
modified or "modest plus" rubric at this stage of discovery.
Second, as the Court of Appeals often explains that Congress passed
the FLSA with broad remedial intent to address unfair methods of
competition in commerce that cause labor conditions detrimental to
the maintenance of the minimum standard of living necessary for
health, efficiency, and general well-being of workers. The
provisions of the statute are remedial and humanitarian in purpose,
and must not be interpreted or applied in a narrow, grudging
manner.
Turning to the class certification, Judge Weir finds that Campbell,
under the applicable lenient standard, has shown sufficient
similarity between herself and other Middle Kentucky Transportation
Drivers to justify certification of the collective. He holds that
the balance of the Defendant's arguments against certification is
of the sort that is appropriate for consideration during the
second-stage, and not during the initial 'notice' stage. Thus, the
Judge, for now, declines any limitation of the proposed collective
based on such challenges.
For these reasons, Judge Weir initially certifies, and
provisionally authorizes notice to a collective comprised of: "All
current and former Transportation Drivers who worked for Defendant
and who worked for or received their last paycheck from Defendant
at a time on or after May 20, 2018."
Given the authorization and preliminary certification, Judge Weir
must determine if the proposed notice is fair and accurate to
properly inform prospective Plaintiffs of the action.
As to Notice Form, the Judge holds that (i) the notice should
include, at bullet point 2, the proposed language that the
Defendant sought in good faith to comply with the requirements of
the FLSA; (ii) the Plaintiff must accurately identify potential
obligations attending an opt-in choice; (iii) the notice should
include conspicuous language that opt-in members may seek their own
counsel as an alternative to authorizing the Plaintiff's counsel to
represent them; and (iv) the notice should be amended to remove the
bold emphasis on the anti-retaliation paragraph.
The Judge finds no merit in the balance of the Defendant's
contentions regarding the notice's form. He does not find the
Defendant's contention regarding the caption heading nor the
amendment of the notice to address only full-time employees
meritorious; these points warrant no modification.
With respect to Opt-in Form, the Judge holds that the Plaintiff
must amend the opt-in form to account for notice accuracy.
Accordingly, the Plaintiff will amend the opt-in consent to include
as an alternative to the broad consent an option for opt-ins to
consent only to the action with space for interlineal initialing to
reflect an opt-in's choice.
Regarding notice mechanics, the Judge authorizes the Plaintiff to
send the notice and opt-in consent forms to former Transportation
Drivers via first class mail and email. Dual notification is not
appropriate for current drivers. It is especially true if the
Defendant does not object to posting the notice on its premises.
Finally, the Plaintiff requests that the Court order Defendant to
produce contact information (names, addresses, phone numbers,
social security numbers, and e-mail addresses) for putative
collective members. The Defendant objects, claiming the request is
overly burdensome and unnecessary.
The Judge harmonizes the identification sought to the notice
mechanics. Thus, the Defendant will produce names, addresses, and
e-mail addresses for putative collective members to the Plaintiff
within 14 days of the Order. For verification purposes, the
Defendant also will provide social security numbers, though the
Judge orders that the Plaintiff's counsel must hold them as
confidential and may use them only for purposes of administration
of the case.
For these reasons, Judge Weir granted in part and conditionally
certified a collective defined as: "All current and former
Transportation Drivers who worked for Defendant and who worked for
or received their last paycheck from Defendant at a time on or
after May 20, 2018."
To ensure accurate identification of individuals within the defined
collective, the Defendant, within 14 days, provide the Plaintiff
the names, last known addresses, social security numbers, and
e-mail addresses of putative class members.
Within 14 days of initial identification, the parties will file
either: (I) a joint status report attaching an agreed list of
notice recipients (redacted, per Fed. R. Civ. P. 5.2, as
appropriate), or (II) if the parties are unable to agree, separate
reports (not to exceed 5 pages) addressing any unresolved disputes,
attaching proposed notice lists, and including any documentation
relevant to the disputed recipients.
Within 14 days of the Order, the Plaintiff shall, via Notice of
Filing, file a Proposed Notice and Proposed Opt-In Form modified to
reflect the Court's findings and directions in the Order. Within 4
days of such filing, the Defendant will file either: (I) a notice
of non-opposition to the modified proposals, or (II) objections
(not to exceed three pages) identifying any provision of the
revised notice and opt-in form Defendant views as inconsistent with
this Order or binding precedent. To be clear, it is not an
invitation for Defendant to rehearse arguments the Court has
rejected or lodge fresh complaints premised on non-binding contrary
authority. The Plaintiff may respond (subject to a like three-page
limitation) within three days of the Defendant's objections, if
any.
Judge Weir provisionally authorized notice to the conditionally
certified collective under the mechanics approved in the Order.
However, he withheld final approval of notice mailing pending
finalization of the recipient list, opt-in form, and notice
content.
A full-text copy of the Court's May 20, 2021 Opinion & Order is
available at https://tinyurl.com/eyt55tp6 from Leagle.com.
NATIONWIDE MUTUAL: Depasquale Appeals Insurance Suit Dismissal
--------------------------------------------------------------
Plaintiffs Alisha Depasquale, et al., filed an appeal from a court
ruling entered in the lawsuit entitled ALISHA DEPASQUALE and
TRAYTON COX, individually and on behalf of all others similarly
situated v. NATIONWIDE MUTUAL INSURANCE COMPANY, Case No.
2:20-cv-05370, in the U.S. District Court for the Southern District
of Ohio at Columbus.
As reported in the Class Action Reporter on Nov. 25, 2020, the
lawsuit is a civil action seeking relief arising from the
Plaintiffs' contract with Nationwide for travel insurance.
According to the complaint, the Plaintiffs and others across the
United States purchased travel insurance from Nationwide to protect
their travel from cancellations, interruptions, missed connections,
delay, and certain emergencies. The Plaintiffs expected
Nationwide's form travel insurance policy to provide reimbursement
for trips in the event that those trips were prohibited from taking
place. However, despite collecting premium payments from the
Plaintiffs and other similarly situated travelers, Nationwide is
now refusing to pay legitimate travel cancellation claims.
The Plaintiffs were scheduled to travel from Portland, Oregon to
Los Cabos, Mexico on April 3, 2020 and return to Portland on April
7, 2020. But due to the COVID-19 Civil Authority Orders and Travel
Advisories, the Plaintiffs were unable to travel internationally,
and could not complete their intended trip.
The Plaintiffs now seek a review of the Court's Memorandum Opinion
and Order, and Judgment dated May 6, 2021, granting Defendant
Nationwide's motion to dismiss and denying as moot Defendant
Nationwide's motion to strike Plaintiffs' Class Action
Allegations.
The appellate case is captioned as Alisha Depasquale, et al v.
Nationwide Mutual Insurance, Case No. 21-3467, in the United States
Court of Appeals for the Sixth Circuit, filed on May 20, 2021.[BN]
Plaintiffs-Appellants ALISHA DEPASQUALE and TRAYTON COX,
individually and on behalf of all others similarly situated, are
represented by:
Jeffrey S. Goldenberg, Esq.
GOLDENBERG SCHNEIDER
4445 Lake Forest Drive, Suite 490
Cincinnati, OH 45242
Telephone: (513) 345-8291
E-mail: jgoldenberg@gs-legal.com
Defendant-Appellee NATIONWIDE MUTUAL INSURANCE COMPANY is
represented by:
Aneca E. Lasley, Esq.
SQUIRE PATTON BOGGS
41 S. High Street, Suite 2000
Columbus, OH 43215
Telephone: (614) 365-2700
E-mail: aneca.lasley@squirepb.com
NATIONWIDE REAL: Valdes Appeals TCPA Suit Dismissal to 9th Circuit
------------------------------------------------------------------
Plaintiff Jorge Valdes filed an appeal from a court ruling entered
in the lawsuit entitled Jorge Valdes, individually on behalf of all
others similarly situated v. NATIONWIDE REAL ESTATE EXECUTIVES,
INC., a California corporation, Case No. 8:20-cv-01734-DOC-KES, in
the U.S. District Court for the Central District of California,
Santa Ana.
As reported in the Class Action Reporter on Sep. 22, 2020, the
lawsuit is brought to stop the Defendant from directing its
realtors to violate the Telephone Consumer Protection Act by making
unsolicited, autodialed calls to consumers without their consent
and to consumers whose phone numbers are registered on the National
Do Not Call registry.
According to the complaint, the Plaintiff was not looking to
purchase or sell a property. The Plaintiff does not have a prior
business relationship with the Defendant and never consented to
calls from any NREE agents. Simply put, the Defendant did not
obtain the Plaintiff's prior express written consent to place any
solicitation telephone calls to him through autodialed phone
calls.
The unauthorized telephone calls from the Defendant harmed the
Plaintiff in the form of annoyance, nuisance, and invasion of
privacy, according to the complaint. The calls also disturbed the
Plaintiff's use and enjoyment of his cellular phone, in addition to
the wear and tear on the phone's hardware (including the phone's
battery) and the consumption of memory on the phone.
Mr. Valdes now seeks a review of the Court's Order dated April 22,
2021, granting Defendant's motion to dismiss the case.
The appellate case is captioned as Jorge Valdes v. NREE, Case No.
21-55530, in the United States Court of Appeals for the Ninth
Circuit, filed on May 21, 2021.
The briefing schedule in the Appellate Case states that:
-- Appellant Jorge Valdes Mediation Questionnaire was due on May
28, 2021;
-- Appellant Jorge Valdes opening brief is due on July 20,
2021;
-- Appellee Nationwide Real Estate Executives, Inc. answering
brief is due on August 19, 2021; and
-- Appellant's optional reply brief is due 21 days after service
of the answering brief.[BN]
Plaintiff-Appellant JORGE VALDES, individually on behalf of all
others similarly situated, is represented by:
Rachel Kaufman, Esq.
KAUFMAN P.A.
400 NW 26th Street
Miami, FL 33127
Telephone: (305) 773-6641
E-mail: rachel@kaufmanpa.com
Defendant-Appellee NATIONWIDE REAL ESTATE EXECUTIVES, INC., a
California corporation, is represented by:
Paul A. Grammatico, Esq.
KABAT CHAPMAN & OZMER LLP
333 S. Grand Avenue, Suite 2225
Los Angeles, CA 90071
Telephone: (213) 493-3988
E-mail: pgrammatico@kcozlaw.com
NAVIENT CORPORATION: Bernstein Litowitz Reminds of July 9 Deadline
------------------------------------------------------------------
SUMMARY NOTICE OF PENDENCY OF CLASS ACTION
This notice is for:
(1) All persons and entities who purchased or otherwise acquired
Navient Corporation's ("Navient") common stock or Navient call
options, or sold Navient put options, from April 17, 2014 through
September 29, 2015, inclusive-and who were damaged thereby (the
"Exchange Act Class"); and
(2) All persons and entities who purchased or otherwise acquired
Navient's 5.000% Senior Notes due 2020 (CUSIP 63938CAA6), 5.875%
Senior Notes due 2024 (CUSIP 63938CAB4), and 5.875% Senior Notes
due 2021 (CUSIP 63938CAC2) (collectively, "Navient Senior Notes")
from November 6, 2014 through December 28, 2015, inclusive-and who
were damaged thereby (the "Securities Act Class," and together with
the Exchange Act Class, the "Classes").
For the avoidance of doubt, the Exchange Act Class includes all
persons and entities who received shares as part of Navient's
formation through a spin-off from Sallie Mae.
YOU ARE HEREBY NOTIFIED, pursuant to Rule 23 of the Federal Rules
of Civil Procedure and an Order of the United States District Court
for the District of Delaware, that the above-captioned action (the
"Action") has been certified to proceed as a class action on behalf
of the Classes as defined above.
In the Action, Lead Plaintiffs allege that Defendants, in violation
of the federal securities laws, made numerous false or misleading
statements about the business operations and financial results of
Navient, one of the country's largest servicers of student loans,
which caused the prices of Navient securities to be artificially
inflated and caused damages to investors when they ultimately
learned the truth about Defendants' prior misrepresentations.
Defendants deny all of Lead Plaintiffs' allegations, and deny any
wrongdoing or violation of law. Please note: at this time, there is
no judgment, settlement, or monetary recovery. Trial in this Action
is currently scheduled for January 24, 2022.
IF YOU ARE A MEMBER OF ONE OR BOTH OF THE CERTIFIED CLASSES (A
"CLASS MEMBER"), YOUR RIGHTS WILL BE AFFECTED BY THIS ACTION. A
full printed Notice of Pendency of Class Action (the "Notice") is
currently being mailed to persons who have been identified as
potential Class Members. If you have not yet received the full
printed Notice, you may obtain a copy of the Notice by downloading
it from www.NavientSecuritiesLitigation.com or by contacting the
Notice Administrator at:
Navient Securities Litigation
c/o JND Legal Administration
P.O. Box 91402
Seattle, WA 98111
1-833-358-1847
Inquiries, other than requests for the Notice, may be made to the
following representatives of Class Counsel:
Jeremy P. Robinson, Esq.
Jesse L. Jensen, Esq.
BERNSTEIN LITOWITZ
BERGER & GROSSMANN LLP
1251 Avenue of the Americas
New York, NY 10020
1-800-380-8496
If you are a Class Member, you have the right to decide whether to
remain a member of the Class(es) of which you are a member. If you
want to remain a Class Member, you do not need to do anything at
this time other than to retain your documentation reflecting your
transactions and holdings in Navient securities. If you are a Class
Member and do not exclude yourself from the Class(es) of which you
are a member, you will be bound by the proceedings in this Action,
including all past, present, and future orders and judgments of the
Court, whether favorable or unfavorable. If you move, or if the
Notice was mailed to an old or incorrect address, please send the
Notice Administrator written notification of your new address.
If you ask to be excluded from the Exchange Act Class, you will not
be bound by any order or judgment entered in this Action with
respect to the Exchange Act Class, however you will not be eligible
to receive a share of any money which might be recovered for the
benefit of the Exchange Act Class. Similarly, if you ask to be
excluded from the Securities Act Class, you will not be bound by
any order or judgment entered in this Action with respect to the
Securities Act Class, however you will not be eligible to receive a
share of any money which might be recovered for the benefit of the
Securities Act Class. To exclude yourself from the Exchange Act
Class, the Securities Act Class, or both Classes, you must submit a
written request for exclusion postmarked no later than July 9,
2021, in accordance with the instructions set forth in the full
printed Notice.
Please note: If you decide to exclude yourself, you may be
time-barred from asserting claims covered by the Action by a
statute of repose and your claims could be dismissed.
Further information regarding this notice may be obtained by
writing to the Notice Administrator at the address provided
above.[GN]
NYC MEDICAL: Court Certifies Classes in Lawrence FLSA-NYLL Suit
---------------------------------------------------------------
In the case, KEYLEE LAWRENCE, COURTNEY BRACCIA, BRIA WARNER, and
WENDY ROSADO, individually and on behalf of all others similarly
situated, Plaintiffs v. NYC MEDICAL PRACTICE, P.C. d/b/a Goals
Aesthetics and Plastic Surgery, and SERGEY VOSKIN, M.D.,
Defendants, Case No. 1:18-cv-8649-GHW (S.D.N.Y.), Judge Gregory H.
Woods of the U.S. District Court for the Southern District of New
York granted in part the Plaintiffs' motions to certify a
collective action.
The Plaintiffs have filed motions asking the Court to certify a
collective action under 29 U.S.C. Section 216(b) to pursue their
Fair Labor Standards Act claims and a class action under Fed. R.
Civ. P. 23 to pursue their New York Labor Law claims.
In 2018, four employees of a New York plastic surgery practice
filed suit against their employer, alleging that it had violated
various provisions of the FLSA and NYLL. In 2018, the Plaintiffs
worked for NYC Medical. NYC Medica conducts business under the
name Goals Aesthetics and Plastic Surgery. Goals' sole shareholder
is physician Sergey Voskin. Lawrence and Warner worked as
receptionists. Braccia and Rosado were patient coordinators.
Goals is in the business of performing cosmetic plastic surgery,
body contouring, anti-aging techniques, facial rejuvenation
processes, and other aesthetic procedures.
The Plaintiffs assert that during the time that they worked for
Goals, the Defendants required them to work more than 10 hours in a
single day and more than 40 hours per week. Lawrence and Warner
recall that they worked at least 45 hours per week. Warner also
worked through her lunch break at least three days per week, and
Goals deducted time for lunch breaks that Warner did not take.
Braccia and Rosado recalled that they worked at least 60 hours per
week. They frequently worked at home during the evenings and on
weekends. Braccia worked through lunch almost daily. She was also
required to check out at night and then continue to work at her
desk.
The Plaintiffs state that the Defendants failed to pay them
overtime for all overtime hours worked. The Defendants also
required the Plaintiffs to work off-of-the-clock, and the
Plaintiffs did not receive compensation for this time. The
Defendants forced the Plaintiffs to maintain false time records,
which understated the number of hours that they worked each week.
They also manipulated the Plaintiffs' time records.
On Sept. 25, 2018, the Plaintiffs filed a hybrid putative class and
collective action under the FLSA and the NYLL on behalf of
themselves and a purported collective and class of all other
similarly situated individuals. The Complaint alleges that the
Defendants violated the FLSA and NYLL by (i) failing to compensate
them for all hours worked each work week; (ii) requiring the
Plaintiffs to submit false time records that understated the true
number of hours that they worked; (iii) failing to properly
compensate them for all hours worked in a work week in excess of
40; and (iv) failing to compensate them at a rate of 1.5 times
their regular rate of pay for all hours in a workweek in excess of
40. The Plaintiffs also allege additional violations of the NYLL.
The Court held an initial pre-trial conference on Sept. 18, 2019.
The parties began discovery shortly after that conference. Fact
discovery was completed on Aug. 25, 2020. Discovery is now
closed.
On Oct. 26, 2020, the Plaintiffs filed motions for certification of
a collective action pursuant to 29 U.S.C. Section 216(b) and
certification of a class action pursuant to Fed. R. Civ. P. 23.
The Defendants filed their opposition to both motions on Dec. 31,
2020. The Plaintiffs filed their reply on Jan. 19, 2021.
Discussion
A. FLSA Collective Action
The Plaintiffs move for certification of an FLSA collective action,
relying on the depositions of Sergey Voskin, Kylee Lawrence,
Courtney Braccia, and April Robbins-Bobyn, and declarations of
Robbins-Bobyn, Bria Warner, and Wendy Rosado.
They seek certification of a collective comprised of "all current
and former receptionists and patient coordinators employed by Goals
and/or predecessor companies, who during the period of September
25, 2015 to present were not paid overtime compensation for all
hours in a workweek in excess of 40."
The Plaintiffs also seek court-facilitated notice of the action and
the Court's approval of their proposed notice and consent form.
They ask the Court to order posting of the notice and consent forms
in the Defendants' offices and to authorize the dissemination of
these documents to members of the proposed collective. To
facilitate the process, the Plaintiffs seek the production of all
available contact information, including telephone numbers and
email addresses, for all individuals within the definition of the
proposed collective.
Judge Woods concludes that the Plaintiffs have demonstrated that
they are similarly situated to other receptionists and patient
coordinators employed by Goals. But the Plaintiffs have failed to
establish that they are similarly situated to receptionists and
patient coordinators employed by predecessors of Goals.
The Plaintiffs propose that the time period for the collective run
from September 2015 to the present. The FLSA has a two-year
statute of limitations except in the case of willful violations,
for which the statute of limitations is three years. The Second
Circuit has explained that "a violation is willful for purposes of
the FLSA limitations provision only if the employer knowingly
violates or shows reckless disregard for the provisions of the
Act."
Judge Woods finds that the Plaintiffs have made allegations that
the Defendants willfully violated the FLSA by requiring employees
to work additional hours and manipulating time-keeping equipment.
The Plaintiffs have not at any point in the litigation requested
that the statute of limitations be tolled. Accordingly, the
appropriate start date for the collective period is three years
prior to the date of filing of the motion for collective
certification. Accordingly, the proposed collective is redefined
to consist of "all current and former receptionists and patient
coordinators employed by Goals during the period of Oct. 26, 2017
to Oct. 26, 2020."
B. Rule 23 Class Certification
The Plaintiffs move for certification of a class action, pursuant
to Fed. R. Civ. P. 23, for their claims under NYLL that they were
not paid overtime for all hours worked in a workweek in excess of
40. They define the proposed class as "All current and former
employee receptionists and patient coordinators of Goals and/or
predecessor companies, who during the period of September 25, 2015
to present, were not paid overtime compensation at a rate of 1.5
times their regular rate of pay, for all hours in a workweek in
excess of 40."
Judge Woods certifies the proposed class with some modifications.
He finds that the Plaintiffs' proposed class represents a
"fail-safe" and will not certify it as defined. Certifying the
Plaintiffs' proposed class would permit them to litigate without
risking an adverse judgment, given that putative class members
either "win and are in the class, which by definition cannot lose
its claim," or they "lose and are outside the class, and thus are
not bound by an adverse action." Accordingly, the Judge removes
the phrase "who were not paid overtime compensation at a rate of
1.5 times their regular rate of pay, for all hours in a workweek in
excess of 40" from the proposed class definition.
The Judge next considers whether the modified class set forth
should be certified pursuant to Rules 23(a) and (b)(3). He finds
that (i) the class satisfies the numerosity requirement; (ii) the
Plaintiffs have not established commonality among members of the
proposed class of "receptionists and patient coordinators of Goals
and/or predecessor companies," but have established commonality
among "receptionists and patient coordinators of Goals" in a
variety of ways; (iii) the Defendants do not argue that Plaintiffs
fail to meet the typicality requirement; (iv) the attorneys of the
Blau Leonard Law Group, LLC have the requisite experience and
qualifications to represent the class; (v) the class
representatives satisfy the adequacy requirement; (vi) the
predominance requirement is satisfied; and (vii) the Plaintiffs
have met the superiority requirement.
The Judge also finds that ascertainability requirement is satisfied
for the Plaintiffs' proposed class, as modified, of receptionists
and patient coordinators employed by Goals, with one additional
modification. He modifies the endpoint to be the date the
Plaintiffs filed their motion for class certification: Oct. 26,
2020.
Conclusion
Judge Woods granted in part the Plaintiffs' FLSA Motion and the
Plaintiffs' Rule 23 Motion, with the following modifications to the
proposed class and collective: The Plaintiffs are granted
certification for a collective consisting of all current and former
receptionists and patient coordinators employed by NYC Medical
Practice, P.C. d/b/a Goals Aesthetics and Plastic Surgery, from
Oct. 26, 2017, to Oct. 26, 2020.
The Defendants are directed to provide to the Plaintiffs, within 10
days, the names, addresses, phone numbers, email addresses, dates
of employment, and job positions/titles for all individuals within
the definition of the FLSA collective action, in a readable digital
form. The form and content of the Notice of Lawsuit with
Opportunity to Join must be revised to conform with the Order.
The parties are directed to meet and confer regarding revisions to
the Plaintiffs' proposed notice and consent forms and, if possible,
to submit mutually acceptable revised forms to the Court within
seven days of the date of the Order. If the parties cannot reach
agreement regarding the content of the notice and consent forms,
they should instead submit their respective proposals, together
with a joint letter describing the differences between their
proposals, within the same time period.
The Plaintiffs are directed, within 14 days following the
Defendants' disclosure of the collective contact information, to
distribute and transmit the Notice of Lawsuit with Opportunity to
Join and Consent to Sue to all individuals within the definition of
the FLSA collective action, by first class U.S. Mail and
electronically by personal and business email.
The Judge approved and set a 60-day period, to begin on the date
that the Notice of Lawsuit with Opportunity to Join and Consent to
Sue is first sent, for each individual within the definition of the
FLSA collective action, to opt in to the case.
The Plaintiffs are also granted certification for a class
consisting of all current and former receptionists and patient
coordinators employed by NYC Medical Practice, P.C. d/b/a Goals
Aesthetics and Plastic Surgery, from 2015 to Oct. 26, 2020.
The Plaintiffs are designated to serve as the representative of the
class and of the collective members who opt into the case. Their
counsel is approved to serve as attorneys of the class and of
collective members who opt into the case.
A full-text copy of the Court's May 20, 2021 Memorandum Opinion &
Order is available at https://tinyurl.com/3c4nzbbv from
Leagle.com.
PARAGON INDUSTRIES: $3.75M Class Settlement in Castro Gets Final OK
-------------------------------------------------------------------
In the case, ELIZABETH CASTRO, individually, and on behalf of
similarly situated members of the general public and other
aggrieved employees pursuant to the California Private Attorneys
General Act, Plaintiff v. PARAGON INDUSTRIES, INC., a California
Corporation d/b/a as BEDROSIANS, Defendant, Case No.
1:19-cv-00755-DAD-SKO (E.D. Cal.), Judge Dale A. Drozd of the U.S.
District Court for the Eastern District of California grants the
Plaintiff's unopposed motion for final approval of a class and
collective action settlement and for an award of attorneys' fees,
costs, and an incentive award.
The Court previously granted preliminary approval of the settlement
in the action on April 27, 2020. On Nov. 2, 2020, the Plaintiff
filed both the pending unopposed motions for attorneys' fees and
for final approval of the class and collective action settlement.
As of the date of the hearing on Nov. 30, 2020, no objections to
the settlement had been received nor filed with the Court, and no
class members have opted out of the settlement.
Between the granting of preliminary approval and the final fairness
hearing, the Court became aware that the mediator involved in the
settlement of the action was Of Counsel the firm representing
Defendant Paragon Industries, Inc. in this action, a fact that had
not been divulged to the Court. At the hearing on the pending
motions, the Court identified this and several other areas of
concern and directed the parties to submit supplemental briefing
addressing those concerns, which the parties did on Dec. 31, 2020.
However, the parties' supplemental briefing did not fully address
all of the Court's concerns, and on March 29, 2021, the Court
provided the parties one final opportunity to support the pending
motion for approval of the proposed settlement agreement. After
the granting of an extension of time, the Plaintiff filed a further
supplemental declaration in support of the motions on April 26,
2021.
On Nov. 20, 2020, Judge Drozd held a final fairness hearing, at
which the class counsel and the defense counsel appeared
telephonically.
The parties have agreed to a $3.75 million gross settlement,
allocated as follows: (1) up to $1,312,500 for attorneys' fees and
up to $55,000 for litigation costs; (2) up to $15,000 as an
incentive award for the Plaintiff, (3) $75,000 in civil PAGA
penalties; (4) an estimated $15,000 for settlement administration
costs; (5) approximately $95,000 in employer payroll taxes and
contributions; and (6) the remainder of the funds being allocated
to the class and collective Net Settlement Fund. The class counsel
estimates that the gross settlement amount is approximately 20% of
the maximum potential damages for the claims, which is estimated as
$18,355,095; however, the class counsel further asserts that a
risk-adjusted, discounted "reasonable" value of the claims is
$3,633,519.85.
Eighty percent of the Net Settlement Fund will be allocated to the
Class Settlement and the remaining 20% will be allocated to the
FLSA Settlement. The Net Class Settlement Fund will be distributed
to class members on a pro rata basis, by dividing each individual's
number of weeks of employment at any time during the Settled Period
out of the number of Workweeks worked by all class members. The
Net FLSA Settlement Fund will similarly be distributed to FLSA
Members on a pro rata basis, based upon each FLSA Member's number
of Workweeks out of to the total number of Workweeks worked by all
FLSA Members.
Based on the Plaintiff's current estimate of the Net Class
Settlement, the average individual class members are expected to
recover $1,070.62 with the highest gross class payment currently
estimated to be $4,469.70. The average FLSA Members are estimated
to recover $267.66 and the highest FLSA payment is estimated to be
$1,117.43. The Private Attorneys General Act, California Labor
Code Section 2698, et seq. ("PAGA") penalties are approximately
$75,000, of which 75%, or $56,250 will be distributed to the LWDA,
and $18,750 will become part of the Net Settlement Fund. None of
the settlement will revert to the Defendant since checks that are
not cashed before their expiration will be cancelled with the funds
to be transmitted to California Rural Legal Assistance, Inc., a
non-profit organization.
Judge Drozd grants the Plaintiff's unopposed motion for final
approval of the class action settlement and approves the settlement
as fair, reasonable, and adequate. He granted in part the
Plaintiff's unopposed motion for attorneys' fees and costs and
incentive awards. Plaintiff Castro's counsel have failed to
provide persuasive reasons justifying the full requested $15,000
incentive award, which is outside the normal range of such awards.
The Judge awards the following sums: (i) the class counsel will
receive $1,031,250 in attorneys' fees and $24,659.23 in expenses;
(ii) Plaintiff Castro will receive $10,000 as service award; and
(iii) Phoenix Class Action Administration Solutions will receive
$13,000 in settlement administration costs and expenses.
The parties are directed to effectuate all terms of the settlement
agreement and any deadlines or procedures for distribution set
forth therein.
The action is dismissed with prejudice in accordance with the terms
of the parties' settlement agreement, with the Court specifically
retaining jurisdiction over this action for the purpose of
enforcing the parties' settlement agreement.
The Clerk of the Court is directed to close the case.
A full-text copy of the Court's May 20, 2021 Order is available at
https://tinyurl.com/dm8x43rk from Leagle.com.
POLARIS INDUSTRIES: Guzman Appeals Ruling in Fraud Suit to 9th Cir.
-------------------------------------------------------------------
Plaintiffs Paul Guzman, et al., filed an appeal from a court ruling
entered in the lawsuit entitled Paul Guzman and Jeremy Albright,
individually on behalf of themselves and all others similarly
situated, v. POLARIS INDUSTRIES, INC., a Delaware corporation;
POLARIS SALES, INC., a Minnesota corporation; POLARIS INDUSTRIES,
INC., a Minnesota corporation; and DOES 1 through 10, inclusive,
Case No. 8:19-cv-01543-FLA-KES, in the U.S. District Court for the
Central District of California, Santa Ana.
As previously reported in the Class Action Reporter, the lawsuit is
an action against Defendants on behalf of all persons who purchased
in California in the four years preceding this Complaint Polaris
Utility Terrain Vehicles ("UTV") that Polaris claimed, advertised,
marked, and certified that the vehicles' rollover protection system
("ROPS") complied with the department of Occupational Safety and
Health Administration ("OSHA") requirements/standards for
agricultural tractors.
According to the complaint, none of the Class Vehicles sold by
Polaris meet the OSHA requirements. Polaris has staved off federal
regulations by the U.S. Consumer Product Safety Commission ("CPSC")
in part by causing the adoption of newly created industry standards
as part of the self-regulation revolution. Even after adopting farm
tractor standards issued for worker safety on farms in the early
1970s, Polaris cheats and does not even meet those standards, it
adds.
Roof strength is a vital safety concern to consumers given the
strong likelihood of UTVs rolling over. The failure to meet all
applicable federal and state statutes, standards, regulations, and
self-adopted regulations, including OSHA requirements is material
information for consumers purchasing/leasing UTVs, such as the
Class Vehicles. Unless otherwise stated, Plaintiffs allege that any
violations by Polaris were knowing and intentional, and that
Polaris did not maintain procedures reasonably adapted to avoid any
such violation.
The Plaintiffs now seek a review of the Court's Order dated May 12,
2021, granting Defendants' motion for summary judgment, and
rendering moot the Plaintiffs' Motion for Class Certification and
Defendants' Ex Parte Application to Strike Plaintiffs' Class
Certification "Reply" Report and Plaintiffs' Use of Merits Reports
in Their Class Certification Reply Brief, and the remaining
portions of Plaintiffs' Motion Requesting Amendment of the
Scheduling Order to Continue Outstanding Motions, Discovery, and
Trial Deadlines by One Hundred Eighty Days.
The appellate case is captioned as Paul Guzman, et al. v. Polaris
Industries, Inc., et al., Case No. 21-55520, in the United States
Court of Appeals for the Ninth Circuit, filed on May 19, 2021.
The briefing schedule in the Appellate Case states that:
-- Appellants Jeremy Albright and Paul Guzman Mediation
Questionnaire was due on May 26, 2021;
-- Transcript shall be ordered by June 17, 2021;
-- Transcript is due on July 19, 2021;
-- Appellants Jeremy Albright and Paul Guzman opening brief is
due on August 26, 2021;
-- Appellees Does, Polaris Industries Inc and Polaris Sales,
Inc. answering brief is due on September 27, 2021; and
-- Appellant's optional reply brief is due 21 days after service
of the answering brief.[BN]
Plaintiffs-Appellants PAUL GUZMAN and JEREMY ALBRIGHT, individually
on behalf of themselves and all others similarly situated, are
represented by:
Todd M. Friedman, Esq.
LAW OFFICES OF TODD M. FRIEDMAN
21550 Oxnard Street, Suite 780
Woodland Hills, CA 91367
Telephone: (323) 306-4234
E-mail: tfriedman@toddflaw.com
Defendants-Appellees POLARIS INDUSTRIES INC, a Delaware
corporation; POLARIS SALES, INC., a Minnesota corporation; and
POLARIS INDUSTRIES INC, a Minnesota corporation, are represented
by:
Paul D. Collier, Esq.
KIRKLAND & ELLIS LLP
300 North LaSalle Street
Chicago, IL 60654
Telephone: (312) 862-2000
E-mail: pcollier@kirkland.com
- and -
Christopher William Keegan, Esq.
KIRKLAND & ELLIS LLP
555 California Street, 27th Floor
San Francisco, CA 94104
Telephone: (415) 439-1882
E-mail: chris.keegan@kirkland.com
- and -
David Andrew Klein, Attorney
KIRKLAND & ELLIS LLP
2049 Century Park East, 37th Floor
Los Angeles, CA 90067
Telephone: (310) 552-4200
E-mail: david.klein@kirkland.com
QUEBEC: Superior Court OKs Class Action Against Religious Order
---------------------------------------------------------------
montrealgazette.com reports that a class action suit against the
Saint-Vincent-de-Paul religious congregation seeking redress for
alleged sexual assaults committed since the 1940s has been
authorized by Quebec Superior Court.
The approval, issued, allows the applicant, now 61 years old, to
act as representative for all persons, including their heirs and
beneficiaries, who claim to have been sexually assaulted by a
leader, member or employee of the congregation.
The applicant, whose identity is protected by court order, alleges
that in the 1960s when he was 12, he was sexually assaulted by a
member of the order in Jonquière. He alleges further that the
congregation was aware of the abuse and tried to cover it up.
The request for the class action was filed in December 2019.
It is now possible to confidentially register in the class action
by contacting the law firm of Arsenault Dufresne Wee, which is also
conducting similar suits involving other religious institutions.
Those institutions include the congregation of Sainte-Croix and
Saint Joseph's Oratory, the Oblats de Marie Immaculée, the Clercs
de Saint-Viateur du Canada, the Frères des écoles chrétiennes
and the Frères de Saint-Gabriel du Canada. The firm has also
brought to court the dioceses of Montreal, Longueuil, Joliette,
Quebec City and Trois-Rivières.
The firm estimates all the proceedings involve 800 alleged
victims.
The 30-year limit for filing a lawsuit in connection with an
alleged sexual assault was abolished last year. [GN]
ROCKET COMPANIES: Rosen Law Firm Discloses Securities Class Action
------------------------------------------------------------------
Rosen Law Firm, a global investor rights law firm, announces it is
investigating potential securities claims on behalf of shareholders
of Rocket Companies, Inc. (NYSE: RKT) resulting from allegations
that Rocket may have issued materially misleading business
information to the investing public.
SO WHAT: If you purchased Rocket securities you may be entitled to
compensation without payment of any out of pocket fees or costs
through a contingency fee arrangement. The Rosen Law firm is
preparing a class action seeking recovery of investor losses.
WHAT TO DO NEXT: To join the prospective class action, go to
http://www.rosenlegal.com/cases-register-2099.htmlor call Phillip
Kim, Esq. toll-free at 866-767-3653 or email pkim@rosenlegal.com or
cases@rosenlegal.com for information on the class action.
WHAT IS THIS ABOUT: On May 5, 2021, after market hours, Rocket
reported closed loan origination volume fell quarter-over-quarter
and it forecast a further decline in the second quarter.
Following this news, Rocket's stock price fell $3.79 per share, or
over 16%, to close at $19.01 per share on May 6, 2021.
WHY ROSEN LAW: We encourage investors to select qualified counsel
with a track record of success in leadership roles. Often, firms
issuing notices do not have comparable experience or resources. The
Rosen Law Firm represents investors throughout the globe,
concentrating its practice in securities class actions and
shareholder derivative litigation. Rosen Law Firm has achieved the
largest ever securities class action settlement against a Chinese
Company. Rosen Law Firm was Ranked No. 1 by ISS Securities Class
Action Services for number of securities class action settlements
in 2017. The firm has been ranked in the top 4 each year since 2013
and has recovered hundreds of millions of dollars for investors. In
2019 alone the firm secured over $438 million for investors. In
2020, founding partner Laurence Rosen was named by law360 as a
Titan of Plaintiffs' Bar. Many of the firm's attorneys have been
recognized by Lawdragon and Super Lawyers.
Attorney Advertising. Prior results do not guarantee a similar
outcome.
Contacts
Laurence Rosen, Esq.
Phillip Kim, Esq.
The Rosen Law Firm, P.A.
275 Madison Avenue, 40th Floor
New York, NY 10016
Tel: (212) 686-1060
Toll Free: (866) 767-3653
Fax: (212) 202-3827
lrosen@rosenlegal.com
pkim@rosenlegal.com
cases@rosenlegal.com
www.rosenlegal.com [GN]
SELECT PORTFOLIO: Washington FDCPA Suit Transferred to E.D.N.Y.
---------------------------------------------------------------
The case styled INEZ CLARA WASHINGTON, individually and on behalf
of all others similarly situated v. SELECT PORTFOLIO SERVICING,
INC., Case No. 5:20-cv-01711, was transferred from the U.S.
District Court for the Central District of California to the U.S.
District Court for the Eastern District of New York on May 27,
2021.
The Clerk of Court for the Eastern District of New York assigned
Case No. 1:21-cv-02991-ENV-RLM to the proceeding.
The case arises from the Defendant's alleged breach of contract and
violations of the California's Unfair Competition Law and the Fair
Debt Collection Practices Act by charging and collecting illegal
payment processing fees when borrowers make their monthly mortgage
payments by telephone or online.
Select Portfolio Servicing, Inc. is a servicer of residential
mortgages in California, with its principal place of business
located in Utah. [BN]
The Plaintiff is represented by:
Hassan A. Zavareei, Esq.
Kristen G. Simplicio, Esq.
TYCKO & ZAVAREEI LLP
1828 L Street NW, Suite 1000
Washington, DC 20036
Telephone: (202) 973-0900
Facsimile: (202) 973-0950
E-mail: hzavareei@tzlegal.com
ksimplicio@tzlegal.com
- and –
Todd A. Walburg, Esq.
BAILEY & GLASSER LLP
475 14th Street, Suite 610
Oakland, CA 94612
Telephone: (510) 207-8633
Facsimile: (510) 463-0241
E-mail: twalburg@baileyglasser.com
SK UNITED: Court Conditionally Certifies Class in Riley Suit
------------------------------------------------------------
In the case, ROGER RILEY, individually, and on behalf of others
similarly situated Plaintiff v. SK UNITED CORP., Defendant, Case
No. 20-10577 (E.D. Mich.), Judge Paul D. Borman of the U.S.
District Court for the Eastern District of Michigan, Southern
Division, issued Opinion and order:
a. adopting Magistrate Judge R. Steven Whalen's Feb. 23, 2021
Report and Recommendation granting the Plaintiff's Motion
for Conditional Certification;
b. overruling the Defendant's First and Third Objections; and
c. granting the Defendant's Second Objection.
On Feb. 25, 2021, Magistrate Judge R. Steven Whalen issued a Report
and Recommendation granting the Plaintiff's pre-discovery motion
for conditional certification and court-authorized notice to
potential opt-in Plaintiffs. The Defendant filed objections to the
Report and Recommendation on March 9, 2021.
The Defendant listed three objections:
(1) The Magistrate Judge erred in recommending certification
where plaintiffs failed to provide evidence of similarly situated
individuals outside of Michigan.
(2) The Magistrate Judge erred in failing to identify an end
date of the scope of the collective action.
(3) The Magistrate Judge erred in recommending certification
that includes drivers who have already opted into a collective in
the related FedEx Litigation.
The parties dispute the proper standard for the Court to review the
Defendant's Objections to the Report and Recommendation. The
Plaintiff argues that the proper standard is "clear error" and
argues that a conditional class certification is a non-dispositive
matter, which under Fed. R. Civ. P. 72(a) demands a review under
the more deferential standard. The Defendant, on the other hand,
argues for de novo review. It argues that the Plaintiff's
arguments are contrary to the Court's referral and the local rules,
and that a "Motion to Certify Class" is a dispositive motion.
Discussion
The Court referred the Plaintiff's Motion for Class Certification
to Magistrate Judge Whalen for a Report and Recommendation under 28
USC Section 636(b)(1)(B). Under that provision, the Court will
make a de novo determination of those portions of the report or
specified proposed finding or recommendations to which objection is
made. Thus, Judge Borman reviews the Defendant's Objections to the
Report and Recommendation de novo.
A. Objection 1
The Defendant argues that the Plaintiff has failed to show that
putative collective members who worked as drivers for SK United in
Texas were "similarly situated" to him, who was a driver based only
in Michigan. Contrary to the Defendant's Objection, the Magistrate
Judge properly determined that the Plaintiff has satisfied the
"modest factual showing" needed to obtain conditional class
certification.
Judge Borman opines that the Magistrate Judge properly determined
that the Plaintiff has satisfied the "modest factual showing"
required, and the Plaintiff is entitled to conditional
certification of the collective. He also rejects the Defendant's
invitation to limit the collective to Michigan given the evidence
showing that SK United applied the policy to pay drivers a daily
rate across distribution centers.
B. Objection 2
The Defendant's Second Objection asks the Court to limit the
proposed collective to exclude drivers who began their employment
with SK United on or after May 9, 2020, the date that SK United
Founder Noah Sperling's declaration identifies as the date SK
United began paying drivers who drive a motor vehicle with a GVWR
of less than 10,001 pounds an hourly rate. In his Response to the
Defendant's objections, the Plaintiff accepts this temporal
limitation: "Plaintiff has agreed to limit the end of the class
period to May 9, 2020 (date of pay structure change)." Because the
parties have reached agreement on this issue, the Defendant's
Second Objection is granted.
C. Objection 3
The Defendant argues that the Magistrate Judge erred in certifying
a collective that includes drivers who have already opted into a
collective certified in Sullivan-Blake et al. v. FedEx Ground
Package Sys., Inc., No. 2:18-cv-01689 (W.D PA). According to the
Defendant, "at least 29 current or former employees of SK United
have already opted into the FedEx Litigation." It asks the Court
to overrule the Magistrate Judge and exclude any of the 29 persons
who opted into the FedEx Litigation.
Judge Borman holds that the Defendant's Third Objection merely
rehashes arguments previously made before the Magistrate Judge and
cites the same cases. Objections to magistrate judges' reports and
recommendations are not meant to be simply a vehicle to rehash
arguments set forth in the petition. The Juduge has, nonetheless,
reviews issue de novo and concurs with the Magistrate Judge's
analysis and conclusion.
In determining that theDefendant's arguments alleging duplicative
litigation can and should be resolved at a later date, the
Magistrate Judge considered the same arguments and cases currently
being presented in the Defendant's Third Objection. Judge Borman
finds that the Magistrate Judge was correct in his application of
the discretion granted to courts in this area. Accordingly, the
Defendant's Third Objection is overruled.
Conclusion
In light of the foregoing, Judge Borman adopted Magistrate Judge
Whalen's Feb. 25, 2021 Report and Recommendation. He overruled the
Defendant's First and Third Objections to the Report and
Recommendation and granted the Defendant's Second Objection
limiting the class to exclude drivers who began their employment
with SK United on or after May 9, 2020. Then Judge granted the
Plaintiff's pre-discovery motion for conditional certification and
court-authorized notice to potential opt-in Plaintiffs. The
Defendant is ordered to identify all potential opt-in plaintiffs
within 14 days of the entry of the Order conditionally certifying
the collective. Distribution of the Notice is permitted by email
and text message, in addition to first-class mail.
A full-text copy of the Court's May 20, 2021 Opinion & Order is
available at https://tinyurl.com/4eu9jjuf from Leagle.com.
SKILLZ INC: Kessler Topaz Reminds Investors of July 7 Deadline
--------------------------------------------------------------
The law firm of Kessler Topaz Meltzer & Check, LLP reminds
investors that a securities fraud class action lawsuit has been
filed against Skillz Inc. (NYSE: SKLZ) ("Skillz") f/k/a Flying
Eagle Acquisition Corp. (NYSE: FEAC) ("FEAC") on behalf of those
who purchased or acquired Skillz securities between December 16,
2020 and April 19, 2021, inclusive (the "Class Period").
Lead Plaintiff Deadline: July 7, 2021
Website:
https://www.ktmc.com/skillz-class-action-lawsuit?utm_source=PR&utm_medium=link&utm_campaign=skillz
Contact: James Maro, Esq. (484) 270-1453
Adrienne Bell, Esq. (484) 270-1435
Toll free (844) 887-9500
Skillz is an internet tech company that provides a proprietary
gaming platform for mobile gaming users and developers. FEAC was
formed as a special purpose acquisition company in early January
2020 by its sponsor Eagle Equity Partners II, LLC, led and
controlled by defendant, Harry Sloan, a member of Skillz's Board of
Directors and former President and Chairman of FEAC.
The complaint alleges that throughout the Class Period, the
defendants disseminated false and misleading statements and
omissions that materially misrepresented Skillz's purported
financial condition and prospects. These materially misleading
statements and omissions included representations relating to
certain of Skillz's business operations, performance metrics and
ultimate valuation, including, among others, Skillz's ability to
attract new end-users, future profitability, the shrinking
popularity of its hosted games that accounted for 88% of its
revenue, and Skillz's valuation.
Skillz investors may, no later than July 7, 2021, seek to be
appointed as a lead plaintiff representative of the class through
Kessler Topaz Meltzer & Check, LLP or other counsel, or may choose
to do nothing and remain an absent class member. A lead plaintiff
is a representative party who acts on behalf of all class members
in directing the litigation. In order to be appointed as a lead
plaintiff, the Court must determine that the class member's claim
is typical of the claims of other class members, and that the class
member will adequately represent the class. Your ability to share
in any recovery is not affected by the decision of whether or not
to serve as a lead plaintiff.
Kessler Topaz Meltzer & Check, LLP prosecutes class actions in
state and federal courts throughout the country involving
securities fraud, breaches of fiduciary duties and other violations
of state and federal law. Kessler Topaz Meltzer & Check, LLP is a
driving force behind corporate governance reform, and has recovered
billions of dollars on behalf of institutional and individual
investors from the United States and around the world. The firm
represents investors, consumers and whistleblowers (private
citizens who report fraudulent practices against the government and
share in the recovery of government dollars). The complaint in this
action was not filed by Kessler Topaz Meltzer & Check, LLP. For
more information about Kessler Topaz Meltzer & Check, LLP please
visit www.ktmc.com.
CONTACT:
Kessler Topaz Meltzer & Check, LLP
James Maro, Jr., Esq.
Adrienne Bell, Esq.
280 King of Prussia Road
Radnor, PA 19087
(844) 887-9500 (toll free)
info@ktmc.com [GN]
SKILLZ INC: Levi & Korsinsky Reminds Investors of July 7 Deadline
-----------------------------------------------------------------
Levi & Korsinsky, LLP announces that a class action lawsuit has
commenced on behalf of shareholders of Skillz Inc. Shareholders
interested in serving as lead plaintiff have until the deadline
listed to petition the court. Further details about the case can be
found at the link provided. There is no cost or obligation to you.
SKLZ Shareholders Click Here:
https://www.zlk.com/pslra-1/skillz-inc-f-k-a-flying-eagle-acquisition-corp-loss-submission-form?prid=15952&wire=1
Skillz Inc. f/k/a Flying Eagle Acquisition Corp. (NYSE:SKLZ)
SKLZ Lawsuit on behalf of: investors who purchased December 16,
2020 - April 19, 2021
Lead Plaintiff Deadline : July 7, 2021
TO LEARN MORE, VISIT:
https://www.zlk.com/pslra-1/skillz-inc-f-k-a-flying-eagle-acquisition-corp-loss-submission-form?prid=15952&wire=1
According to the filed complaint, during the class period, Skillz
Inc. f/k/a Flying Eagle Acquisition Corp. made materially false
and/or misleading statements and/or failed to disclose that:
representations relating to certain of Skillz's business
operations, performance metrics and ultimate valuation, including,
among others, Skillz's ability to attract new end-users, future
profitability, the shrinking popularity of its hosted games that
accounted for 88% of its revenue, and the Company's valuation. For
example, one of the Company's objectively unrealistic promises
included the unsupportable claim that the Company was valued at
$3.5 billon, based on revenue projections in excess of $550 million
for 2022. However, the Company failed to inform investors that
downloads of the games that account for a majority share of its
revenue have been declining since at least November 2020. In
reality, the Company's prospects for attaining that revenue scale
was far from realistic given its size, market share, reliance on
thirdparty app stores, declining downloads of its most popular
games and, critically, the enormous amount of incentive Bonus
Payments that Skillz routinely provides to its gamer customers, a
fact that investors were misled about. These Bonus Payments are
routinely provided to its customers, who are expected to use them
for game entry fees, which, in turn, artificially inflates Skillz
revenue.
Levi & Korsinsky is a nationally recognized firm with offices in
New York, California, Connecticut, and Washington D.C. The firm's
attorneys have extensive expertise and experience representing
investors in securities litigation and have recovered hundreds of
millions of dollars for aggrieved shareholders. Attorney
advertising. Prior results do not guarantee similar outcomes.
CONTACT:
Levi & Korsinsky, LLP
Joseph E. Levi, Esq.
55 Broadway, 10th Floor
New York, NY 10006
jlevi@levikorsinsky.com
Tel: (212) 363-7500
Fax: (212) 363-7171
www.zlk.com [GN]
SOMATICS, LLC: Himes Appeals Ruling in Product Liability Suit
-------------------------------------------------------------
Plaintiffs Michelle Himes, et al., filed an appeal from a court
ruling entered in the lawsuit entitled Jose Riera, et al. v.
Somatics, LLC, et al., Case No. 2:17-cv-06686-RGK-JC, in the U.S.
District Court for the Central District of California, Los
Angeles.
On September 11, 2017, Plaintiffs filed the case against the
Defendants alleging that Plaintiffs (except for Plaintiff Daniel
Benjamin) received electroconvulsive therapy (ECT) in California
via ECT devices manufactured by unknown entities and were allegedly
injured. The Plaintiffs (except for Plaintiff Daniel Benjamin)
bring claims for negligence per se and strict products liability
for failure to warn under California law. The Plaintiffs' causes of
action are based solely on Defendants' alleged failure to provide
information to the Food and Drug Administration. Plaintiff Daniel
Benjamin was not administered ECT, but his claim is for loss of
consortium as the alleged husband of Plaintiff Marcia Benjamin,
which is tied to Plaintiff Marcia Benjamin's claims.
The Plaintiffs allege that they "diligently filed this suit in a
timely fashion upon discovering the facts giving rise to the claims
asserted herein, namely that Defendants failed to satisfy the
reporting requirements imposed by the Food, Drug and Cosmetic Act,
the Medical Device Amendments, and the Safe Medical Devices Act of
1990."
The Plaintiffs are now seeking a review of the Court's Order dated
May 14, 2021 entered by Judge R. Gary Klausner, dismissing
Plaintiffs' third and fourth claims with prejudice and granting
Defendant's motion for summary judgment as to Plaintiff's remaining
claims.
The appellate case is captioned as Michelle Himes, et al. v.
Somatics, LLC, et al., Case No. 21-55517, in the United States
Court of Appeals for the Ninth Circuit, filed on May 19, 2021.
The briefing schedule in the Appellate Case states that:
-- Appellants Daniel Benjamin, Marcia Benjamin and Michelle
Himes Mediation Questionnaire was due on May 26, 2021;
-- Transcript shall be ordered by June 17, 2021;
-- Transcript is due on July 19, 2021;
-- Appellants Daniel Benjamin, Marcia Benjamin and Michelle
Himes opening brief is due on August 26, 2021;
-- Appellee Somatics, LLC answering brief is due on September
27, 2021; and
-- Appellant's optional reply brief is due 21 days after service
of the answering brief.[BN]
Plaintiffs-Appellants MICHELLE HIMES, MARCIA BENJAMIN, and DANIEL
BENJAMIN, individually, and on behalf of all others similarly
situated, are represented by:
Monique Amanda Alarcon, Esq.
Bijan Esfandiari, Esq.
R. Brent Wisner, Esq.
BAUM HEDLUND ARISTEI & GOLDMAN
10940 Wilshire Boulevard, 17th Floor
Los Angeles, CA 90024
Telephone: (310) 207-3233
E-mail: Malarcon@baumhedlund.com
Besfandiari@baumhedlund.com
Rbwisner@baumhedlund.com
Defendant-Appellee SOMATICS, LLC is represented by:
Jason Arthur Benkner, Esq.
David Sean Poole, Esq.
Samuel Roy Weldon Price, Esq.
POOLE SHAFFERY & KOEGLE, LLP
25350 Magic Mountain Parkway, Suite 250
Santa Clarita, CA 91355
Telephone: (661) 290-2991
E-mail: jbenkner@pooleshaffery.com
dpoole@pooleshaffery.com
sprice@pooleshaffery.com
SPARTAN RACE: Class Settlement in Fruitstone Suit Has Final Nod
---------------------------------------------------------------
In the case, AARON FRUITSTONE, on behalf of himself and others
similarly situated, Plaintiff v. SPARTAN RACE, INC., Defendant,
Case No. 20-cv-20836-BLOOM/Louis (S.D. Fla.), Judge Beth Bloom of
the U.S. District Court for the Southern District of Florida
granted the Plaintiff's Motion for Final Approval of Class Action
Settlement, and Class Counsel's Application for Attorneys' Fees and
Expenses, and Notice Regarding Service Awards.
On Feb. 26, 2020, Settling Plaintiff Fruitstone, on behalf of
himself and others similarly situated, initiated the action against
Defendant Spartan. On April 13, 2020, the Plaintiff filed the
operative Amended Complaint, alleging that the Defendant's
representations regarding the "Racer Insurance Fee," objectively
construed, would lead a reasonable consumer to believe that this
mandatory, nonrefundable $14 charge is used solely to purchase
insurance on behalf of the race registrant. The Amended Complaint
alleges that, in reality and unknown to consumers, Defendant uses
the Racer Insurance Fees to defray administrative expenses and as a
hidden profit center for Spartan. According to the Plaintiff, the
Defendant's representations regarding the Racer Insurance Fee were
deceptive and the class members suffered damages. The Amended
Complaint asserts claims for violations of the Massachusetts
Consumer Protection Law, Massachusetts General Laws, Chapter 93A,
et seq., and the Florida Deceptive and Unfair Trade Practices Act,
Fla. Stat. Section 501.201 et seq.
On May 4, 2020, the Defendant filed a Motion to Transfer the Case
Under 28 U.S.C. Section 1404(A) or, in the alternative, to Dismiss
Plaintiff's Amended Complaint. After extensive briefing and oral
argument, the Court denied the Defendant's Motion to Dismiss.
Thereafter, the parties engaged in extensive discovery, exchanging
documents and data, conducting several depositions, and
participating in a hearing on discovery disputes before Magistrate
Judge Lauren Louis.
The Plaintiff filed his Motion for Class Certification on Sept. 3,
2020, which was fully briefed as of Dec. 23, 2020. The parties
then moved to stay the proceedings pending mediation before
experienced mediator Michael D. Young. On Dec. 1, 2020, the
parties participated in a formal mediation. After extensive
negotiations, they entered into a class-wide settlement agreement,
memorialized in a Stipulation of Settlement, dated Jan. 28, 2021.
The benefits of the Settlement can be summarized as follows.
First, each Class Member is entitled to elect to receive either:
(1) one four-month free membership to the "Spartan+ Membership
Program," or (2) one $5 electronic voucher per each paid
registration during the Class Period, up to a maximum of four (4)
total electronic vouchers per Class Member. Additionally, the
Defendant has agreed to provide injunctive relief that will benefit
Class Members as well as future consumers.
On Jan. 28, 2021, the Plaintiff filed an Unopposed Motion for
Preliminary Approval of Class Action Settlement and Certification
of the Settlement Class. The Court thereafter granted preliminary
approval of the proposed class action settlement set forth in the
Settlement Agreement and provisionally certified the Settlement
Class for settlement purposes only.
Before the Court is the Plaintiff's Motion for Final Approval.
Under the Settlement Agreement, each Class Member will be provided
with a free four-month subscription to the Spartan+ Program, unless
they select the alternative relief. The Spartan+ Program, launched
in March 2021, includes: (1) subscription to an enhanced Spartan
Fit App (formerly $14.99/month), including online workouts,
training programs, activity tracking and more from world class
coaches; (2) free shipping and handling for merchandise ordered
from Spartan's website; (3) a 20% discount applicable to online
merchandise purchases; (4) exclusive discounts on select Spartan
merchandise available to Spartan+ members; (5) free, downloadable,
high-resolution photo downloads (without watermarks) after events;
(6) access to other "members only" premium content on Spartan's
website; (7) express race day registration; (8) a Club Area for
post-race recovery; (9) guaranteed start time choice for races; and
(10) advanced race analysis to help participants with their fitness
goals and to complete races.
Importantly, the Settlement Class Members are not required to
provide any credit card to initiate the subscription, and the
subscriptions will automatically terminate at the end of four
months, unless a Class Member affirmatively chooses to extend it.
The Plaintiff's expert, Soneet R. Kapila, has opined that this
pricing is a "reasonable market-based retail value for the Spartan+
Membership," which includes benefits that "compare favorably to
other digital fitness memberships, such as Peloton and Apple+," and
therefore "the value of the free Spartan+ Program afforded by the
proposed Settlement approximates its retail value of $7.99 per
month or $32 for the four-month free membership period allowed
under the Settlement Agreement." Thus, "the aggregate market-based
retail value made available to Class Members for the Spartan+
Program component of the proposed Settlement totals $25.6
million."
As an alternative to the four-month free subscription to the
Spartan+ Program, each Class Member may elect to receive one $5
electronic voucher per each event for which they paid a full
registration fee during the Class Period, up to a total of 4
electronic vouchers (for a combined value of $20). Each voucher
provides Class Members a $5 credit toward the purchase of any
non-discounted merchandise on Spartan's website.
There are 25 non-discounted merchandise items available for sale on
the Spartan website for $5 or less, and the Defendant has no
intention of removing said items as a result of the Settlement.
Additionally, there are 100 non-discounted items available for sale
for $20 or less.
The electronic vouchers are fully transferable to friends and
family and will be valid for two years from the date of issuance.
The Defendant currently sells Spartan gift cards in various dollar
amounts that are utilized in a similar manner as the electronic
voucher. Mr. Kapila has opined that "the value of the Electronic
Voucher afforded by the proposed Settlement approximates its retail
value of $5 per Electronic Voucher or $20 for the 4 Electronic
Vouchers allowed under the Settlement Agreement," for an estimated
aggregate value of $10 million.
In addition to providing all the Class Members with the relief
described, the Defendant has also agreed to the following
injunctive relief, which ensures that the alleged violations of the
Racer Insurance Fee will be cured for all the Class Members and the
Spartan consumers going forward:
a. Spartan will not describe in writing or abbreviate the
at-issue fee as a Racer Insurance Fee, Racer Insur. Fee, Insurance
Fee, Insur. Fee, or similar nomenclature. Spartan specifically
retains the right to describe the at-issue fee as an
Administrative, Insurance, and Management Fee, AIM Fee, or Admin
Fee during the online event registration process or elsewhere.
b. Spartan will add the following language to current and
future marketing and sales materials, FAQs, relevant website
screens in the registration process, and screen indicators or
selectors that describe or are adjacent to the at-issue fee: The
Administrative, Insurance, and Management Fee covers a number of
different costs involved in Spartan events, including
administrative and management costs, insurance costs and expenses
for related risk management and safety measures. This fee is not a
direct pass-through of third-party costs to the racer and may
include revenues to Spartan.
c. Spartan agrees that it will not represent, directly or
indirectly, that 100% (or all) of the Administrative, Insurance,
and Management Fee is paid to an insurance provider or other
third-party.
On May 7, 2021, the Court held a duly noticed Final Approval
Hearing. Following the Final Approval Hearing, pursuant to the
Court's Order to Show Cause, the Class Counsel filed a supplemental
declaration regarding their expenses incurred in connection with
the litigation.
Judge Bloom granted the Plaintiff's Motion for Final Approval.
Pursuant to Fed. R. Civ. P. 23, the Judge finally certified the
Settlement Class for settlement purposes only, as identified in the
Settlement Agreement, which will consist of the following: "All
individuals in the United States who during the Class Period, based
on Spartan's records, paid a $14 Racer Insurance Fee or Insurance
Fee in connection with any race organized and sponsored by
Spartan."
The Judge finally designates (i) the law firms of The Moskowitz Law
Firm, PLLC, and Bonnett, Fairbourn, Friedman & Balint, P.C. as the
Class Counsel for the Settlement Class; and (ii) Settling Plaintiff
Aaron Fruitstone as the Settlement Class representative.
The Objections are overruled in their entirety.
Pursuant to Fed. R. Civ. P. 23(h), Judge Bloom awarded the Class
Counsel's attorneys' fees and expenses in the amount of $2.29
million payable by Defendant's Insurers pursuant to the terms of
the Settlement Agreement. She denied the Plaintiff's request for a
service award at this time but retains jurisdiction for the limited
purpose of revisiting the denial of service awards if the Court of
Appeals for the Eleventh Circuit holds a rehearing en banc in
Johnson v. NPAS Solutions, LLC, 975 F.3d 1244 (11th Cir. 2020), and
reverses its decision, or if another Eleventh Circuit decision
overrules Johnson. The Defendant will not be responsible for, and
will not be liable with respect to the allocation among Class
Counsel or any other person who may assert a claim thereto, the
attorneys' fees and expenses awarded by the Court.
The Release, which is set forth in Section VI of the Settlement
Agreement, is expressly incorporated in the Order in all respects
and is effective as of the entry of this Judgment. Each of the
Released Parties is forever released, relinquished, and discharged
by each Releasing Person, including all Settlement Class Members,
from all Released Claims.
The Settlement Class Members will promptly dismiss with prejudice
all claims, actions, or proceedings that have been brought by any
Settlement Class Member in any jurisdiction that are based on
Released Claims pursuant to the Settlement Agreement and this
Judgment, and that are enjoined pursuant to the Judgment.
The claims of Settling Plaintiff, individually and on behalf of the
Settlement Class, including all individual claims and class claims
presented, are dismissed on the merits and with prejudice against
Defendants without fees (including attorneys' fees) or costs to any
party except as otherwise provided in the Judgment.
The Settling Parties are directed to implement and consummate the
Settlement according to its terms and provisions, as may be
modified by Orders of the Court. Without further order of the
Court, they may agree to reasonably necessary extensions of time to
carry out any of the provisions of the Settlement Agreement, as may
be modified by the Preliminary Approval Order or the Judgment.
Pursuant to Rule 54(b), Judge Bloom entered Judgment as described
and expressly determines that there is no just reason for delay.
Without impacting the finality of the Judgment, the Court will
retain jurisdiction over the construction, interpretation,
consummation, implementation, and enforcement of the Settlement
Agreement and the Judgment, including jurisdiction to enter such
further orders as may be necessary or appropriate.
The Clerk will administratively close the case.
A full-text copy of the Court's May 20, 2021 Order is available at
https://tinyurl.com/4uvsxfpe from Leagle.com.
SPRUCE 1209 LLC: N.Y. Supreme Court Appeal Filed in Chernett Suit
-----------------------------------------------------------------
Defendant SPRUCE 1209 LLC filed an appeal from a court ruling
entered in the lawsuit styled ELIZABETH CHERNETT and MICHAEL RAPIN,
on behalf of themselves and all others similarly situated v. Spruce
1209, llc, Case No. 159188/2020, in the Supreme Court of the State
of New York, County of New York.
As reported in the Class Action Reporter on November 5, 2020, the
lawsuit alleges that the Defendant overcharged the Plaintiffs and
the members of the Class an amount equal to the difference between
their monthly rents and the appropriate legal regulated
rent-stabilized rents.
The Defendant entered into leases with them and the Class, which
misrepresented the amount of rent the Defendant was legally
entitled to collect. The Plaintiffs contend that they are entitled
to recover monetary damages from the Defendant based on the
unlawful overcharges, as well as an award of interest.
Plaintiff Elizabeth Chemett resides in Apartment 410 at 1209 Dekalb
Avenue. The Plaintiff Michael Rapin resides in Apartment 311 at
1209 Dekalb Avenue.
The Defendant is the owner-in-fee of the apartment building located
at 1209 DeKalb Avenue (the "Building") in Brooklyn.
The Building participates in the 421-a Program, which requires
landlords to register their units with the Division of Housing and
Community Renewal, and that those apartments be treated as
rent-stabilized. The initial legal regulated rent to be registered
for an apartment in a 421-a building must be the "monthly rent
charged and paid by the tenant," and all subsequent rent increases
are to be derived from that first payment. Here, Defendant
hoodwinked tenants, and DHCR, by registering a legal regulated rent
higher than the "monthly rent charged and paid by the tenant."
The Defendant now seeks a review of the Court's Decision and Order
dated April 5, 2021 entered by Judge Arlene P. Bluth, denying the
consolidated motion to dismiss the lawsuit.
The appellate case is captioned as ELIZABETH CHERNETT and MICHAEL
RAPIN, on behalf of themselves and all others similarly situated,
Plaintiffs-Respondents v. SPRUCE 1209, LLC, Defendant-Appellant,
Case No. 2021-01849, in the Appellate Division of the Supreme Court
of the State of New York, First Department, filed on May 24,
2021.[BN]
Defendant-Appellant SPRUCE 1209, LLC is represented by:
Matthew S. Brett, Esq.
BELKIN BURDEN GOLDMAN, LLP
270 Madison Avenue
New York, NY 10016
Telephone: (212) 867-446
Plaintiffs-Respondents ELIZABETH CHERNETT and MICHAEL RAPIN, on
behalf of themselves and all others similarly situated, are
represented by:
Lucas A. Ferrara, Esq.
Roger A. Sachar, Jr., Esq.
NEWMAN FERRARA LLP
1250 Broadway, 27th Floor
New York, NY 10001
Telephone: (212) 619-5400
Proposed Amici Curiae Rent Stabilization Association of New York
City, Inc., Community Housing Improvement Program, Inc., and the
Real Estate Board of New York are represented by:
Jeffrey Turkel, Esq.
ROSENBERG & ESTIS, P.C.
733 Third Avenue
New York, NY 10017
Telephone: (212) 867-6000
ST. LOUIS, MO: Discovery Deadlines in Cody Suit Partly Extended
---------------------------------------------------------------
In the case, JAMES CODY, et al., Plaintiffs v. CITY OF ST. LOUIS,
Defendant, Case No. 4:17-CV-2707 AGF (E.D. Mo.), Judge Audrey G.
Fleissig of the U.S. District Court for the Eastern District of
Missouri, Eastern Division, granted in part the Plaintiffs' motion
for extension of discovery deadlines.
The Plaintiffs seek to extend the existing June 1, 2021 deadline
for completion of all discovery such that fact discovery would be
completed by July 1, 2021 and expert discovery by Aug. 1, 2021.
They further seek to extend the deadline for filing their
anticipated motion for class certification from July 1, 2021 to
Sept. 1, 2021. Finally, they ask the Court to impose deadlines by
which the parties must attest to compliance with all outstanding
discovery requests from the opposing party and by which parties
must raise concerns with the Court regarding noncompliance with
discovery obligations -- June 11, 2021 and June 16, 2021,
respectively.
The Plaintiffs argue that these changes to the Case Management
Order are necessary because of the Defendant's prior delays and
deficiencies in its discovery production, some of which have been
addressed by Court Order (e.g., ECF No. 136), as well as
outstanding written discovery that the Defendant has yet to produce
and that the Plaintiffs contend is necessary for completion of both
fact and expert witness depositions.
The Defendant opposes the Plaintiff's motion. It argues that the
discovery delays in this case are largely attributable to the
Plaintiffs and that the Plaintiffs should not need further
discovery to complete their motion for class certification . In the
event that the Court is inclined to extend the discovery deadline,
the Defendant requests that the Court orders that it has no duty to
supplement any material created on or after June 1, 2021 (the
current discovery deadline), and that the Plaintiffs be ordered to
depose its experts on the dates it offered: May 20, 2021 and June
1, 2021. The Defendant opposes any extension of the deadline for
filing a motion for class certification, and it contends that
additional deadlines for attesting to and contesting compliance
with discovery obligations are unnecessary.
Separately, the parties have filed several other discovery-related
motions. Specifically, the Plaintiffs have filed a motion to
compel certain electronically stored information ("ESI") in native
format or with metadata and a motion for sanctions for the
Defendant's alleged destruction, losing, or withholding of
discoverable materials. The Defendant has also filed a motion to
compel, which asks that the Plaintiffs be ordered to withdraw
certain objections to discovery requests, to produce documents
requested in a single request for production, to execute certain
outstanding authorizations for medical records, and to fully answer
and sign under oath certain interrogatories. These motions have
not yet been fully briefed.
Upon careful consideration of the parties' arguments in light of
the procedural history of the case and the interest in a just,
speedy, and inexpensive determination of civil actions as set forth
in the Federal Rules of Civil Procedure, Judge Fleissig grants the
Plaintiffs' motion for extension in part. She orders the parties
to complete written discovery by no later than June 1, 2021, and to
produce to the opposing party by that date an affidavit or sworn
declaration by a person with knowledge that production of written
discovery is complete. The Judge then extends the deadline for
completion of all remaining non-written discovery, including
depositions of any remaining fact or expert witnesses, until July
1, 2021. Finally, the Judge extends the deadline to file any
motion for class certification until July 15, 2021.
Judge Fleissig also granted the Defendant's motion for extension of
time, until May 25, 2021, to respond to the Plaintiffs' motion for
sanctions. To the extent her ruling on the motion for sanctions or
any of the other pending discovery motions necessitates further
amendment to the Case Management Order, the parties should meet and
confer and attempt to reach agreement on such amendment, and if
they cannot, they may file any appropriate motion at that time.
The does not otherwise impose restrictions on the scheduling of
depositions. However, she strongly encourages the counsel to work
in good faith and cooperatively to advance discovery in the most
efficient and expeditious manner as possible so that they and the
Court may finally address the merits of the Plaintiffs' legal
claims.
For the reasons she set forth, Judge Fleissig granted in part the
Plaintiffs' motion for extension of deadlines as set forth.
The Case Management Order is amended as follows:
1. The parties will complete all written discovery in the
case no later than June 1, 2021, and will produce to the opposing
party by that date an affidavit or sworn declaration by a person
with knowledge that production of written discovery is complete.
2. The parties will complete all remaining non-written
discovery, including depositions of any remaining fact or expert
witnesses, no later than July 1, 2021
3. Any motion for class certification must be filed no later
July 15, 2021. Responses will be filed no later than 21 days after
the motion is filed (and no later than Aug. 5, 2021) and any reply
may be filed no later than 10 days thereafter (and no later than
Aug. 16, 2021).
Except as amended, the Case Management Order will remain in effect.
No further extensions of the deadlines to file case dispositive
motions or the trial date will be granted absent a showing of
extreme good cause.
Judge Fleissig granted the Defendant's motion for extension of
time, until May 25, 2021, to respond to the Plaintiffs' motion for
sanctions.
A full-text copy of the Court's May 19, 2021 Memorandum & Order is
available at https://tinyurl.com/3xc7y4rx from Leagle.com.
SURGICAL CARE: Joseph Saveri Named Interim Co-Lead Counsel
----------------------------------------------------------
Judge Andrea R. Wood of the United States District Court for the
Northern District of Illinois named the Joseph Saveri Law Firm as
interim co-lead counsel in an antitrust class action lawsuit
against Surgical Care Affiliates (SCA), United Surgical Partners
International (USPI), and an unnamed co-conspirator. The suit
alleges these companies entered into agreements not to compete for
one another's senior-level employees. These so-called "no-poach"
agreements enabled these companies to avoid paying competitive
wages to retain their senior-staff.
The lawsuit is brought by a former employee of SCA on behalf of a
proposed class of all senior-level employees of these companies (at
minimum, "Director" and above) between May 2010 and October 2017,
when the agreements were allegedly in effect. SCA, which is owned
by United Healthgroup, Inc., is one of the largest providers of
outpatient surgery in the United States with over 230 outpatient
medical care facilities nationwide. USPI, owned by Tenet Healthcare
Corporation, is part of a provider network with 550 outpatient and
other medical facilities, 110,000 employees, and approximately
5,000 physician partners, serving 10 million patients annually
across 28 states.
In labor markets, workers benefit from a competitive environment:
Ideally, employers compete against one another to hire employees
who have the training and skills to enhance the employers' services
and brands, resulting in higher compensation and benefits for those
employees. In contrast, unlawful no-poach agreements suppress wages
for employees who might have sought better opportunities with
competing employers but were not hired because of the conspiracy.
These no-poach agreements further limit compensation for all of the
defendants' senior-level health care employees-even those who did
not seek other job opportunities-because companies adhere to a
policy of internal equity, generally compensating workers of
similar titles and job descriptions equally.
In January, the U.S. Department of Justice (DOJ) indicted SCA for
these anticompetitive agreements. In its indictment, the DOJ
alleged SCA conspired with other outpatient health care companies
to suppress competition for senior-level employees in violation of
federal antitrust laws. The DOJ is pursuing criminal charges,
separate from civil liability that SCA, USPI, and their unnamed
co-conspirator may face from employees affected by their
anticompetitive conduct.
"This is an important case in which unlawful agreements effectively
suppressed wages for workers and where these companies denied their
employees access to a better life and the right to be paid the true
value of their skills and talent. We are proud to represent the
proposed class of affected employees and have extensive case
leadership experience that will help provide a successful
resolution," says Joseph Saveri, counsel for the plaintiff.
The Firm's original complaint was entitled Spradling v. Surgical
Care Affiliates, LLC., case number 21-cv-01324, in the U.S.
District Court for the Northern District of Illinois. This and
several other cases have been reassigned and will be consolidated
in front of Judge Wood in the U.S. District Court for the Northern
District of Illinois.
ABOUT THE FIRM
The Joseph Saveri Law Firm is one of the country's most acclaimed,
successful boutique firms, specializing in antitrust, class
actions, and complex litigation on behalf of national and
international consumers, purchasers, and employees across diverse
industries. For further information on our practice and
accomplishments on behalf of our clients, please visit
www.saverilawfirm.com. [GN]
TEMPLE UNIVERSITY: Ryan Appeals Case Dismissal to 3rd Circuit
-------------------------------------------------------------
Plaintiffs Brooke Ryan, et al., filed an appeal from a court ruling
entered in the lawsuit entitled BROOKE RYAN, individually and on
behalf of all others similarly situated, Plaintiff v. TEMPLE
UNIVERSITY, Defendant, Case No. 5-20-cv-02164, in the United States
District Court for the Eastern District of Pennsylvania.
As previously reported in the Class Action Reporter, the lawsuit is
brought to seek refunds as a result of the Defendant's decision to
close campus, constructively evict students, and transition all
classes to an online/remote format as a result of the Novel
Coronavirus Disease pandemic.
While closing campus and transitioning to online classes was the
right thing for the Defendants to do, this decision deprived the
Plaintiff and the other members of the Class from recognizing the
benefits of in-person instruction, housing, meals, access to campus
facilities, student activities, and other benefits and services in
exchange for which they had already paid fees and tuition, the
Plaintiff asserts.
The Defendants have either refused to provide reimbursement for the
tuition, housing, meals, fees and other costs that the Defendants
are no longer providing, or have provided inadequate and/or
arbitrary reimbursement that does not fully compensate the
Plaintiff and members of the Class for their loss, says the
complaint.
The Plaintiffs now seek a review of the Court's Memorandum Opinion
and Order dated April 22, 2021, granting Defendant's motion to
dismiss the case with prejudice.
The appellate case is captioned as Brooke Ryan, et al. v. Temple
University, Case No. 21-2016, in the United States Court of Appeals
for the Third Circuit, filed on May 27, 2021.[BN]
Plaintiffs-Appellants BROOKE RYAN and CHRISTINA FUSCA, individually
and on behalf of all others similarly situated, are represented
by:
Stuart A. Carpey, Esq.
KREITHEN BARON & CARPEY
1201 Chestnut Street, 10th Floor
Philadelphia, PA 19107
Telephone: (610) 834-6030
E-mail: scarpey@carpeylaw.com
- and -
Edward W. Ciolko, Esq.
Gary F. Lynch, Esq.
CARLSON LYNCH
1133 Penn Avenue, 5th Floor
Pittsburgh, PA 15222
Telephone: (412) 322-9243
E-mail: eciolko@carlsonlynch.com
- and -
Eric Poulin, Esq.
Roy T. Willey, IV, Esq.
ANASTOPOULO LAW FIRM
32 Ann Street
Charleston, SC 29403
Telephone: (843) 614-8888
E-mail: eric@akimlawfirm.com
roy@akimlawfirm.com
Defendant-Appellee TEMPLE UNIVERSITY is represented by:
Jessica Davis Khan, Esq.
Gerard A. Dever, Esq.
Roberta D. Liebenberg, Esq.
FINE KAPLAN & BLACK
One South Broad Street, Suite 2300
Philadelphia, PA 19107
Telephone: (215) 567-6565
E-mail: jkhan@finekaplan.com
gdever@finekaplan.com
rliebenberg@finekaplan.com
TRADESTATION GROUP: Sanchez Slams Non-Blind Friendly Website
------------------------------------------------------------
Christian Sanchez, on behalf of himself and all others similarly
situated, Plaintiffs, v. Tradestation Group, Inc., Defendant, Case
No. 21-cv-04723, (S.D. N.Y., May 26, 2021), seeks preliminary and
permanent injunction, compensatory, statutory and punitive damages
and fines, prejudgment and post-judgment interest, costs and
expenses of this action together with reasonable attorneys' and
expert fees and such other and further relief under the Americans
with Disabilities Act, New York State Human Rights Law and New York
City Human Rights Law.
Tradestation is a trading services company, and owns and operates
the website, www.tradestation.com, that allows consumers to access
goods and services on its site. Sanchez is legally blind and claims
that said website cannot be accessed by the visually-impaired.
[BN]
Plaintiff is represented by:
Joseph H. Mizrahi, Esq.
COHEN & MIZRAHI LLP
300 Cadman Plaza West, 12th Fl.
Brooklyn, NY 11201
Tel: (929) 575-4175
Fax: (929) 575-4195
Email: Joseph@cml.legal
UBER TECHNOLOGIES: Court Dismisses Nicolas' Third Amended Suit
--------------------------------------------------------------
In the case, JERICHO NICOLAS, et al., Plaintiffs v. UBER
TECHNOLOGIES, INC., Defendant, Case No. 19-cv-08228-PJH (N.D.
Cal.), Judge Phyllis J. Hamilton of the U.S. District Court for the
Northern District of California grants Uber's motion to dismiss the
Plaintiffs' third amended complaint.
The case is a putative wage and hour class action premised on the
alleged violation of various California and federal labor laws.
The Defendant develops and maintains a technology platform that
connects riders with ride-share drivers through a mobile-device
application. The Plaintiffs seek to represent a class comprising
all persons who have worked as drivers for the Defendant within
California.
Defendant Uber Technologies, Inc., moves to dismiss Plaintiffs Mark
Glinoga ("Glinoga"), Alexis Gonzalez ("Gonzalez"), and Kevin
Neely's ("Neely's") third amended complaint ("TAC").
On July 17, 2020, the Court dismissed all claims alleged in the
Plaintiffs' first amended complaint ("FAC"). To the extent the
Plaintiffs premised any such claim on a labor law violation that
occurred on or after March 1, 2019, the Court permitted leave to
amend. Otherwise, to the extent the Plaintiffs premised a claim on
a violation that occurred before March 1, 2019, the Court dismissed
any such claim with prejudice. The Court reasoned that any claim
resting on a pre-March 1, 2019 violation was precluded pursuant to
a class settlement reached in an action before Judge Chen, O'Connor
v. Uber Techs., Inc., 13-cv-03826-EMC. Id. at 17-20.
In that same order, the Court compelled the claims for 45 of the 48
Plaintiffs named in the FAC to individual arbitration. With
respect to those 45 Plaintiffs, the Court stayed further litigation
of their Labor Code Section 2698 claim under California's Private
Attorney General Act ("PAGA") pending completion of their
arbitrations. It appears that those arbitrations remain ongoing.
On Aug. 14, 2020, the Plaintiffs filed their second amended
complaint ("SAC"). On Dec. 7, 2020, the Court again dismissed all
claims in that pleading. The Court dismissed the following three
claims with prejudice: (i) violation of California Labor Code
(Labor Code) Section 1174.5 and the Industrial Welfare Commissions
(IWC) Wage Order No. 4 Section 7 premised on the Defendant's
failure to maintain required records; (ii) the Labor Code Section
2698 claim seeking civil penalties as an aggrieved employee for the
referenced violations of the California Labor Code; and (iii)
violation of Labor Code Section 2750.3 for misclassification of the
Plaintiffs' employment status.
The Court permitted the Plaintiffs leave to amend their remaining
six claims. It directed the Plaintiffs to correct all factual
deficiencies in those claims and follow certain instructions when
amending their minimum wage and overtime claims. In its analysis,
the Court details the deficiencies identified and steps outlined
per claim in its Dec. 7, 2020 order.
On Jan. 4, 2021, the Plaintiffs filed their operative TAC. In it,
they maintain substantively identical background and class
allegations to those proffered in the SAC. Critically, the
Plaintiffs continue to allege that, since the California Supreme
Court's decision in Dynamex Operations West v. Superior Court, 4
Cal. 5th 903 (2018) and the California state legislature's passage
of Assembly Bill 5 (A.B. 5) (previously codified at Labor Code
Section 2750.3 but subsequently recodified at Labor Code Section
2775), the Defendant has misclassified the Plaintiffs as
"independent contractors" rather than "employees."
Based on that purported misclassification, the Plaintiffs allege
claims for the following: (i) violation of Labor Code Sections
201-04, 218.5, and 218.6 premised on the Defendant's failure to pay
timely earned wages during employment and on separation of
employment; (ii) violation of Labor Code Sections 1182.12, 1194,
1194.2, 1197, and Wage Order 4 Section 3(A) premised on the
Defendant's failure to pay minimum wages; (iii) violation of Labor
Code Section 226 premised on the Defendant's failure to provide
accurate wage statements; (iv) violation of the Fair Labor
Standards Act (FLSA), Title 29 U.S.C. Section 206 premised on the
Defendant's failure to pay minimum wages; (v) violation of Title 29
U.S.C. Section 207 and Title 29 C.F.R. Section 778.106 premised on
the Defendant's failure to pay overtimes wages; and (vi) violation
of California Business and Professions Code Sections 17200, et seq.
premised on the referenced violations. In their TAC, the
Plaintiffs add allegations to the first through fifth claims.
On Jan. 19, 2021, the Defendant filed the instant motion. In it,
the Defendant asks the Court to dismiss all remaining claims
brought by the Plaintiffs with prejudice.
The Defendant advances two major arguments. First, citing
California's doctrine of abatement, the Defendant asserts that
Business & Professions Code Section 7451 extinguishes any state law
claim alleged by the Plaintiffs that relies on a statutory law that
is now inconsistent with Business & Professions Code Section 7451's
purported determination that the Plaintiffs are independent
contractors, not employees. According to the Defendant, such an
underlying law includes the so-called "ABC" test at issue in
Dynamex and later codified at Labor Code Section 2775. In a
separate but similar vein, it asserts that, for purposes of their
federal law claims, the Plaintiffs do not qualify as employees
under the FLSA's economic realities test.
As its second major argument, the Defendant renews its attack on
the sufficiency of the TAC's allegations. It chiefly asserts that
the Plaintiffs fail to remedy the defects identified in the Dec. 7,
2020 order.
Analysis
1. Claims for Failure to Pay Minimum Wage and Overtime
Judge Hamilton concludes that the Plaintiffs still fail to allege a
cognizable state or federal law minimum wage claim. Critically,
they continue to rely on their time logged onto the Uber App
waiting for requests between rides when asserting an average
effective wage rate that falls below the state and federal minimum.
However, the Judge finds that the Plaintiffs fail to satisfy the
Court's instruction that they allege facts plausibly showing that
such time qualifies as compensable under either the subject to
control or suffered or permitted to work clause in Wage Order 4's
"hours worked" definition or the FLSA.
First, the Judge holds that the Plaintiffs fail to allege
sufficient facts showing that their time logged onto the Uber App
and waiting for requests between rides are compensable under state
or federal law. Given that, the Plaintiffs may not rely on such
time for purpose of their minimum wage claims.
Based on her review of the TAC, the Judge holds that it appears
that the Plaintiffs alleged average effective pay rate requires
that they include the subject wait time to fall below either the
state or federal minimum wage. In both their TAC and opposition,
the Plaintiffs fail to proffer any allegation or advance any reason
showing that this claim can survive without accounting for such
waiting time. Accordingly, the Judge dismisses the claims for
failure to pay minimum wage.
Second, the Judge holds that the Plaintiffs again fail to state a
claim for failure to pay overtime. First, both Glinoga and Neely
fail to identify a "given workweek" after March 1, 2019 in which
they worked over 40 hours without special compensation. Second, as
just decided, the Plaintiffs fail to allege that they are under the
Defendant's control when waiting for requests on the Uber App
between rides. Accordingly, the Judge dismisses the claim for
failure to pay overtime.
2. Claim for Failure to Timely Pay Wages
In their TAC, the Plaintiffs add a single allegation to this claim.
In it, they allege that they "stopped working for Uber in
approximately March of 2020." Based on that allegation, the
Plaintiffs allege that their "employment relationship with the
Defendant ended in or about March of 2020."
Judge Hamilton finds that this claim fails for three reasons.
First, the Plaintiffs' allegation that they "stopped" working for
the Defendant does not establish that it "discharged" them or that
they "quit" working for it. By their plain terms, Labor Code
Sections 201-02 require one of the latter. The former allegation
is simply too vague. Second, to establish willfulness, the
Plaintiffs rely on the exact same allegation at paragraph 82 as
that proffered in the SAC. s previously determined, this
allegation is insufficient to support a plausible inference of
willfulness. Third, independent of such insufficiency, the
Plaintiffs proffer the allegations in paragraph 82 on the basis of
information and belief. By definition, the Plaintiffs must know
whether (or not) they demanded payment from defendant. Because the
Plaintiffs failed to verify that allegation, the Judge does not
consider it. She dismisses the claim for failure to timely pay
wages.
3. Claim for Failure to Provide Accurate Wage Statements
In their TAC, the Plaintiffs amend their claim for failure to
provide an accurate wage statement to assert that they "never
received any wage statement at all, let alone a wage statement with
all required information." They further allege that the
Defendant's failure to provide such statement was willful and
intentional because, as of California Labor Code Section 2775's
passage, the Defendant was "on notice" that its "conduct" violated
the Labor Code.
Judge Hamilton concludes that this claim fails for two related
reasons. First, in their opposition, the Plaintiffs fail to
proffer any objection to Arroyo's validity or application to the
case. Second, in their TAC, the Plaintiffs themselves acknowledge
that prior to Labor Code Section 2775's passage, the Defendant
publicly indicated a belief that "just because the ABC test is hard
does not mean Uber will not be able to pass it." The Judge finds
such indication a sufficient ground to infer the Defendant's
good-faith belief that the Plaintiffs do not qualify as employees.
Accordingly, she dismisses the claim for failure to provide
accurate wage statements.
4. Business & Professions Code Section 17200 Claim
The Plaintiffs agree that their Section 17200 claim rises or falls
with their state and federal law claims. As decided, the
Plaintiffs fail to allege a predicate violation of the referenced
labor laws. Accordingly, Judge Hamilton dismisses the Section
17200 claim.
5. The Court Denies Further Leave to Amend
The TAC represents the fourth iteration of the Plaintiffs'
operative pleading. Then Court has analyzed the merits of both the
Plaintiffs' FAC and SAC. In its July 17, 2020 order, the Court
identified numerous pleading deficiencies in the FAC. It permitted
plaintiffs the opportunity to "remedy the factual defects" in their
claims, "including, without limitation" those defects specifically
identified in the July 17, 2020 order. The Plaintiffs failed to do
so.
In light of the Plaintiffs' repeated failures to cure their
complaints' deficiencies, Judge Hamilton finds that further leave
to amend would be futile. Given that finding, she dismisses all
remaining claims brought by the Plaintiffs with prejudice.
Conclusion
For the reasons she stated, Judge Hamilton grants the Defendant's
motion to dismiss. She understands that her decision to stay the
Labor Code Section 2698 (PAGA) claims of the 45 Plaintiffs whose
claims the Court compelled to arbitration remains in effect pending
those arbitrations. She orders the parties to file a joint status
report within 14 days of the completion of all such arbitrations.
In that report, the parties must propose a method for adjudicating
the remaining PAGA claims. Once the Court has adjudicated all such
claims, it will enter judgment with respect to all 48 Plaintiffs.
A full-text copy of the Court's May 20, 2021 Order is available at
https://tinyurl.com/ay4u955u from Leagle.com.
UBIQUITI INC: Bernstein Liebhard Reminds of July 19 Deadline
------------------------------------------------------------
Bernstein Liebhard, a nationally acclaimed investor rights law
firm, announces that a securities class action lawsuit has been
filed on behalf of investors who purchased or acquired the
securities of Ubiquiti, Inc. ("Ubiquiti" or the "Company") (NYSE:
UI) from January 11, 2021 through March 30, 2021 (the "Class
Period"). The lawsuit filed in the United States District Court for
the Southern District of New York alleges violations of the
Securities Exchange Act of 1934.
If you purchased Ubiquiti Scientific securities, and/or would like
to discuss your legal rights and options please visit Ubiquiti
Shareholder Class Action Lawsuit or contact Joseph R. Seidman toll
free at (877) 779-1414 or seidman@bernlieb.com
On March 30, 2021, after the market closed, Krebs on Security
published an article entitled "Whistleblower: Ubiquiti Breach
‘Catastrophic'" stating that the Company had downplayed a data
breach and that its "third-party cloud provider claim was a
fabrication." The article stated that attackers had gained access
to all Ubiquiti Amazon Web Services accounts, including all S3 data
buckets, application logs, databases, user database credentials,
and secrets required to forge single sign-on cookies. The article
claimed that the Company should have immediately invalidated
customers' credentials and forced a reset.
On this news, the Company's stock price fell $50.70 per share, or
14.5%, to close at $298.30 per share on March 31, 2021, thereby
injuring investors.
The complaint alleges that throughout the Class Period, Defendants
made materially false and/or misleading statements, as well as
failed to disclose material adverse facts about the Company's
business, operations, and prospects. Specifically, Defendants
failed to speak fully and truthfully because they failed to
disclose to investors: (i) that the Company had downplayed the data
breach in January 2021; (ii) that attackers had obtained
administrative access to the Company's servers and obtained access
to, among other things, all databases, user database credentials,
and secrets to forge single sign-on cookies; (iii) that, as a
result, intruders already had credentials needed to remotely access
Ubiquiti's customers' systems, and (iv) that, as a result of the
foregoing, Defendants' positive statements about the Company's
business, operations, and prospects were materially misleading
and/or lacked a reasonable basis.
If you wish to serve as lead plaintiff, you must move the Court no
later than July 19, 2021. A lead plaintiff is a representative
party acting on behalf of other class members in directing the
litigation. Your ability to share in any recovery doesn't require
that you serve as lead plaintiff. If you choose to take no action,
you may remain an absent class member.
If you purchased Ubiquiti securities, and/or would like to discuss
your legal rights and options please visit
https://www.bernlieb.com/cases/ubiquiti-ui-shareholder-class-action-lawsuit-fraud-stock-404/apply/
or contact Joseph R. Seidman toll free at (877) 779-1414 or
seidman@bernlieb.com
Since 1993, Bernstein Liebhard LLP has recovered over $3.5 billion
for its clients. In addition to representing individual investors,
the Firm has been retained by some of the largest public and
private pension funds in the country to monitor their assets and
pursue litigation on their behalf. As a result of its success
litigating hundreds of lawsuits and class actions, the Firm has
been named to The National Law Journal's "Plaintiffs' Hot List"
thirteen times and listed in The Legal 500 for ten consecutive
years.
ATTORNEY ADVERTISING. (C) 2021 Bernstein Liebhard LLP. The law firm
responsible for this advertisement is Bernstein Liebhard LLP, 10
East 40th Street, New York, New York 10016, (212) 779-1414. The
lawyer responsible for this advertisement in the State of
Connecticut is Michael S. Bigin. Prior results do not guarantee or
predict a similar outcome with respect to any future matter.
Contact Information
Joseph R. Seidman
Bernstein Liebhard LLP
https://www.bernlieb.com
(877) 779-1414
seidman@bernlieb.com [GN]
UBIQUITI INC: Frank R. Cruz Reminds Investors of July 19 Deadline
-----------------------------------------------------------------
The Law Offices of Frank R. Cruz announces that a class action
lawsuit has been filed on behalf of persons and entities that
purchased or otherwise acquired Ubiquiti Inc. ("Ubiquiti" or the
"Company") (NYSE: UI) securities between January 11, 2021 and March
30, 2021, inclusive (the "Class Period"). Ubiquiti investors have
until July 19, 2021 to file a lead plaintiff motion.
If you are a shareholder who suffered a loss, click
https://www.frankcruzlaw.com/cases/ubiquiti-inc/ to participate.
On March 30, 2021, after the market closed, Krebs on Security
published an article entitled "Whistleblower: Ubiquiti Breach
‘Catastrophic'" stating that the Company had downplayed a data
breach from January 2021 and that the "third-party cloud provider
claim was a fabrication." According to the article, the attacker(s)
had accessed "privileged credentials that were previously stored in
the LastPass account of a Ubiquiti IT employee, and gained root
administrator access to all Ubiquiti AWS [Amazon Web Services]
accounts, including all S3 data buckets, all application logs, all
databases, all user database credentials, and secrets required to
forge single sign-on (SSO) cookies." As a result, the article noted
that the Company should have immediately invalidated customers'
credentials and forced a reset, rather than asking customers to
change their passwords when they next log on."
On this news, the Company's stock price fell $50.70, or 14.5%, to
close at $298.30 per share on March 31, 2021, on unusually heavy
trading volume.
The complaint filed in this class action alleges that throughout
the Class Period, Defendants made materially false and/or
misleading statements, as well as failed to disclose material
adverse facts about the Company's business, operations, and
prospects. Specifically, Defendants, in their statements concerning
the data breach, failed to speak fully and truthfully because they
failed to disclose to investors: (1) that the Company had
downplayed the data breach in January 2021; (2) that attackers had
obtained administrative access to Ubiquiti's servers and obtained
access to, among other things, all databases, all user database
credentials, and secrets required to forge single sign-on (SSO)
cookies; (3) that, as a result, intruders already had credentials
needed to remotely access Ubiquiti's customers' systems; and (4)
that, as a result of the foregoing, Defendants' positive statements
about the Company's business, operations, and prospects were
materially misleading and/or lacked a reasonable basis.
If you purchased Ubiquiti securities during the Class Period, you
may move the Court no later than July 19, 2021 to ask the Court to
appoint you as lead plaintiff. To be a member of the Class you need
not take any action at this time; you may retain counsel of your
choice or take no action and remain an absent member of the Class.
If you purchased Ubiquiti securities, have information or would
like to learn more about these claims, or have any questions
concerning this announcement or your rights or interests with
respect to these matters, please contact Frank R. Cruz, of The Law
Offices of Frank R. Cruz, 1999 Avenue of the Stars, Suite 1100, Los
Angeles, California 90067 at 310-914-5007, by email to
info@frankcruzlaw.com, or visit our website at
www.frankcruzlaw.com. If you inquire by email please include your
mailing address, telephone number, and number of shares purchased.
This press release may be considered Attorney Advertising in some
jurisdictions under the applicable law and ethical rules.
Contacts
The Law Offices of Frank R. Cruz, Los Angeles
Frank R. Cruz, 310-914-5007
fcruz@frankcruzlaw.com
www.frankcruzlaw.com [GN]
UBIQUITI INC: Robbins Geller Reminds Investors of July 18 Deadline
------------------------------------------------------------------
Robbins Geller Rudman & Dowd LLP announces that a class action
lawsuit has been filed in the Southern District of New York on
behalf of purchasers of Ubiquiti Inc. (NYSE:UI) securities between
January 11, 2021 and March 30, 2021, inclusive (the "Class
Period"). The case is captioned Molder v. Ubiquiti Inc., No.
21-cv-04520, and is assigned to Judge Denise L. Cote. The Ubiquiti
class action lawsuit charges Ubiquiti and certain of its executives
with violations of the Securities Exchange Act of 1934.
The Private Securities Litigation Reform Act of 1995 permits any
investor who purchased Ubiquiti securities during the Class Period
to seek appointment as lead plaintiff in the Ubiquiti class action
lawsuit. A lead plaintiff is generally the movant with the greatest
financial interest in the relief sought by the putative class who
is also typical and adequate of the putative class. A lead
plaintiff acts on behalf of all other class members in directing
the Ubiquiti class action lawsuit. The lead plaintiff can select a
law firm of its choice to litigate the Ubiquiti class action
lawsuit. An investor's ability to share in any potential future
recovery of the Ubiquiti class action lawsuit is not dependent upon
serving as lead plaintiff. If you wish to serve as lead plaintiff
of the Ubiquiti class action lawsuit or have questions concerning
your rights regarding the Ubiquiti class action lawsuit, please
provide your information here or contact counsel, J.C. Sanchez of
Robbins Geller, at 800/449-4900 or 619/231-1058 or via e-mail at
jsanchez@rgrdlaw.com. Lead plaintiff motions for the Ubiquiti class
action lawsuit must be filed with the court no later than July 18,
2021.
Ubiquiti develops and markets equipment and technology platforms
for high-capacity Internet access, unified information technology,
and consumer electronics. On January 11, 2021, Ubiquiti issued a
public notice stating that it had become aware of "unauthorized
access to certain of our information technology systems hosted by a
third party cloud provider."
The Ubiquiti class action lawsuit alleges that, throughout the
Class Period, defendants made false and misleading statements and
failed to disclose that: (i) Ubiquiti had downplayed the January
2021 data breach it had suffered; (ii) attackers had obtained
administrative access to Ubiquiti's servers and obtained access to,
among other things, all databases, all user database credentials,
and secrets required to forge single sign-on (SSO) cookies; (iii)
thus, intruders already had credentials needed to remotely access
Ubiquiti's customers' systems; and (iv) as a result, defendants'
positive statements about Ubiquiti's business, operations, and
prospects were materially misleading and/or lacked a reasonable
basis.
On March 30, 2021, Krebs on Security published an article entitled
"Whistleblower: Ubiquiti Breach ‘Catastrophic'" stating that
Ubiquiti had downplayed a data breach from January 2021 and that
the "third-party cloud provider claim was a fabrication." According
to the article, the attacker(s) had accessed "privileged
credentials that were previously stored in the LastPass account of
a Ubiquiti IT employee, and gained root administrator access to all
Ubiquiti AWS [Amazon Web Services] accounts, including all S3 data
buckets, all application logs, all databases, all user database
credentials, and secrets required to forge single sign-on (SSO)
cookies." As a result, the article noted that "Ubiquiti should have
immediately invalidated customers' credentials and forced a reset,"
rather than asking customers to change their passwords when they
next log on. On this news, Ubiquiti's stock price fell more than
14%, damaging investors.
Robbins Geller Rudman & Dowd LLP is one of the world's leading law
firms representing investors in securities class action litigation.
With 200 lawyers in 9 offices, Robbins Geller has obtained many of
the largest securities class action recoveries in history. ISS
Securities Class Action Services has ranked Robbins Geller as one
of the top law firms in the world in both amount recovered and
total number of class action settlements for shareholders every
year since 2010. The SCAS 2020 Top 50 Report ranked Robbins Geller
first for recovering $1.6 billion for investors last year, more
than double the amount recovered by any other plaintiffs' firm.
Robbins Geller attorneys have helped shape the securities laws and
have recovered tens of billions of dollars on behalf of aggrieved
victims. Beyond securing financial recoveries for defrauded
investors, Robbins Geller also specializes in implementing
corporate governance reforms, helping to improve the financial
markets for investors worldwide. Robbins Geller attorneys are
consistently recognized by courts, professional organizations, and
the media as leading lawyers in the industry. Please visit
http://www.rgrdlaw.comfor more information.
Contacts
Robbins Geller Rudman & Dowd LLP
J.C. Sanchez, 800-449-4900
jsanchez@rgrdlaw.com [GN]
UBIQUITI INC: Schall Law Reminds Investors of July 19 Deadline
--------------------------------------------------------------
The Schall Law Firm, a national shareholder rights litigation firm,
reminds investors of a class action lawsuit against Ubiquiti Inc.
("Ubiquiti" or "the Company") (NYSE: UI) for violations of Sec10(b)
and 20(a) of the Securities Exchange Act of 1934 and Rule 10b-5
promulgated thereunder by the U.S. Securities and Exchange
Commission.
Investors who purchased the Company's securities between January
11, 2021 and March 30, 2021, inclusive (the "Class Period"), are
encouraged to contact the firm before July 19, 2021.
If you are a shareholder who suffered a loss, click
https://bit.ly/3x3xZf5 to participate.
We also encourage you to contact Brian Schall of the Schall Law
Firm, 2049 Century Park East, Suite 2460, Los Angeles, CA 90067, at
310-301-3335, to discuss your rights free of charge. You can also
reach us through the firm's website at www.schallfirm.com, or by
email at brian@schallfirm.com.
The class, in this case, has not yet been certified, and until
certification occurs, you are not represented by an attorney. If
you choose to take no action, you can remain an absent class
member.
According to the Complaint, the Company made false and misleading
statements to the market. Ubiquiti downplayed the data breach it
suffered in January 2021. The hackers had in fact gained
administrative access to the Company's servers, which in turn gave
them access to all databases, user credentials, and information
needed to force single sign-on cookies. This level of access let
attackers remotely access systems belonging to the Company's
clients. Based on these facts, the Company's public statements were
false and materially misleading throughout the class period. When
the market learned the truth about Ubiquiti, investors suffered
damages.
Join the case to recover your losses.
The Schall Law Firm represents investors around the world and
specializes in securities class action lawsuits and shareholder
rights litigation.
This press release may be considered Attorney Advertising in some
jurisdictions under the applicable law and rules of ethics.
Contacts
The Schall Law Firm
Brian Schall, Esq.,
www.schallfirm.com
Office: 310-301-3335
info@schallfirm.com [GN]
UNITED AUTO: Wins Bid to Dismiss Davidson's 2nd Amended Class Suit
------------------------------------------------------------------
In the case, JERRY DAVIDSON, individually, and on behalf of all
others similarly situated, Plaintiff v. UNITED AUTO CREDIT
CORPORATION, a California corporation, Defendant, Case No.
1:20-cv-1263 (LMB/JFA) (E.D. Va.), Judge Leonie M. Brinkema of the
U.S. District Court for the Eastern District of Virginia,
Alexandria Division, grants United's Motion to Dismiss Plaintiff's
Second Amended Class Action Complaint Pursuant to Federal Rule of
Civil Procedure 12(b)(6).
The parties do not dispute the facts alleged in the Second Amended
Complaint ("SAC"), and agree that the dispositive issue is whether
the Defendant's Retail Installment Contract and Security Agreement,
through which the Plaintiff, who was an active member of the United
States military, financed his purchase of a 2011 GMC Acadia SUV on
Oct. 13, 2018, is covered by the Military Lending Act ("MLA"), 10
U.S.C. Section 987 et seq.
The Plaintiff describes United as one of the ten largest non-prime
automobile lenders in the United States, having over 4,500 auto
dealer customers and financing over $350 million in auto loans to
more than 53,000 borrowers. He alleges that United has violated
multiple provisions of the MLA.
Specifically, the SAC alleges that the Defendant violated Section
987(c)(1) by failing to make mandatory disclosures of various fees
including a $250 processing fee, a $350 fee for Guaranteed Asset
Protection ("GAP") insurance, and a $129.61 charge for prepaid
interest (Count I); violated Section 987(c)(1) by failing to
disclose the true cost of credit because the true military annual
percentage rate ("MAPR") for the Plaintiff was 26.31% and not
22.99% as written in the Contract (Count II); and violated Section
987(e)(3) by requiring borrowers to submit to arbitration (Count
III).
The Plaintiff seeks certification for three different classes, a
declaration that the Installment Contracts are void, relief from
the void Installment Contracts in the form of rescission,
restitution or reformation, statutory damages of $500 per
violation, actual and punitive damages, attorneys' fees and costs
under 10 U.S.C. Section 987(f)(5)(B), injunctive relief, and pre-
and post-judgment interest.
The Plaintiff filed the initial complaint in the Central District
of California on April 1, 2020. After cycling through three
district judges and being twice amended, the civil action was
transferred to the district. The Defendant then refiled its
previously filed Motion to Dismiss, which is pending before the
Court.
Discussion
Judge Brinkema explains that the Military Lending Act ("MLA")
requires lenders to provide more robust disclosures to protect
military consumers and redefines "annual percentage rate," which
originated under the Truth in Lending Act ("TILA"), to include a
variety of fees, credit insurance premiums, and charges for
ancillary products. Additionally, the MLA makes it "unlawful for
any creditor to extend consumer credit to a covered member or a
dependent of such a member with respect to which the creditor
requires the borrower to submit to arbitration or imposes onerous
legal notice provisions in the case of a dispute." The MLA directs
the Secretary of Defense to "prescribe regulations to carry out"
the MLA, including defining "consumer credit" under the statute.
On July 22, 2015, the DoD issued the final version of the rule,
which adopted the Proposed Rule's expanded definition of "consumer
credit."
The claims in the complaint fall under two provisions of the MLA,
10 U.S.C. Section 987, subdivisions (c)(1) and (e)(3). Both
subdivisions govern the extension of "consumer credit"; however,
the MLA's definition of "consumer credit" explicitly excludes auto
finance transactions.
The parties do not dispute that the Contract at issue was intended
to finance the purchase of the Plaintiff's 2011 GMC Acadia SUV.
They also do not dispute that the Contract was secured by the
vehicle. As such, the Defendant argues that the Contract does not
qualify as a "consumer credit" transaction and is expressly exempt
from the requirements of the MLA because it financed the purchase
of the Plaintiff's vehicle and was secured by the vehicle.
The parties agree that if the 2017 DoD interpretation were
currently in effect there would be no dispute over the Contract
being governed by the MLA. It would be covered, and the Court
would have to address the remaining issues in the Motion to Dismiss
regarding whether the contract violated the MLA. What complicates
the issue is the DoD's decision on Feb. 28, 2020 to withdraw the
2017 Q&A interpretation.
The Plaintiff argues that his loan included three identifiable
credit-related charges that were not related to the motor vehicle
itself: GAP coverage, a processing fee, and prepaid interest. As a
result, the loan did not finance "only" the motor vehicle, making
the MLA motor vehicle exception inapplicable. The Defendant
responds that accepting the Plaintiff's argument would essentially
reinstate the 2017 Q&A Interpretation, which the DoD expressly
withdrew on Feb. 28, 2020 due to its incompatibility with 32 C.F.R.
Section 232.8(f).
Judge Brinkema opines that although the DoD stated that it "takes
no position on any of the arguments or assertions advanced as a
basis for withdrawing" the 2017 Q&A Interpretation, adopting the
Plaintiff's position would essentially contradict the DoD's
withdrawal of the guidance by effectively reinstating it, because
the clear language of 32 C.F.R. Section 232.3(f)(2)(ii) excepts the
Contract at issue.
The Plaintiff's argument that the GAP coverage, processing fee, and
prepaid interest were unrelated to the purchase of the motor
vehicle itself is problematic, the Judge adds. She holds that the
GAP coverage provides a form of insurance directly related to the
motor vehicle and protects the purchaser in the "event of theft or
damage to the Vehicle that results in a total loss," and the
processing fee and prepaid interest are directly related to the
Plaintiff's purchase of the vehicle. The Plaintiff argues that the
2016 Q&A Interpretation for personal property should apply to the
motor vehicle exception and that the Court should find that these
three charges were not expressly intended to finance the purchase
of the motor vehicle.
That argument is unpersuasive, the Judge finds, holdings that the
2016 Q&A Interpretation only applied to personal property and did
not address motor vehicles. Even if one could expand it to motor
vehicle purchases, none of the three charges at issue in the action
provide additional financing that is unrelated to the purchase of
the motor vehicle; rather, they are inextricably tied to the
Plaintiff's purchase of the vehicle.
Conclusion
For these reasons, Judge Brinkema finds that the Contract is exempt
from the requirements of the MLA, and, as a result, the parties'
arguments over whether the contract violates the MLA are moot.
Accordingly, she will grant the Defendant's Motion to Dismiss by an
Order to be issued with her Memorandum Opinion.
A full-text copy of the Court's May 19, 2021 Memorandum Opinion is
available at https://tinyurl.com/hymj2y2e from Leagle.com.
UNITED STATES: Acadiana Appeals Fed. Claims Court Ruling
--------------------------------------------------------
Plaintiffs Acadiana Management Group, LLC, et al., filed an appeal
from a court ruling entered in the lawsuit entitled ACADIANA
MANAGEMENT GROUP, LLC; ALBUQUERQUE-AMG SPECIALTY HOSPITAL, LLC;
CENTRAL INDIANA-AMG SPECIALTY HOSPITAL, LLC; LTAC HOSPITAL OF
EDMOND, LLC; HOUMA-AMG SPECIALTY HOSPITAL, LLC; LTAC OF LOUISIANA,
LLC; and LAS VEGAS-AMG SPECIALTY HOSPITAL, LLC, individually and on
behalf of all others similarly situated, Plaintiffs v. UNITED
STATES OF AMERICA, Defendants, Case No. 1:19-cv-00496-PEC, in the
United States Court of Federal Claims.
As previously reported in the Class Action Reporter, the lawsuit
alleges that increased quarterly fees charged to the Plaintiffs are
unconstitutional.
According to the complaint, the Plaintiffs are seven reorganized
debtors whose Chapter 11 cases were filed in June 2017 (before the
2017 Act was signed into law), whose joint plan was confirmed in
February 2018 (after the 2017 Act was signed into law), and whose
joint plan was effective in May 2018.
The Plaintiffs' Chapter 11 cases were closed in June 2018 with a
final decree. Plaintiffs' cases were pending in the United States
Bankruptcy Court for the Western District of Louisiana, which is
part of Region 5 of the USTP. As such, the Plaintiffs paid first
and second quarter fees in 2018. Plaintiffs paid $216,784.69 more
in quarterly fees than they would have paid if their cases were
pending in Alabama or North Carolina.
Given the non-uniformity of fees charged to Chapter 11 debtors, the
Defendant has implemented a non-uniform bankruptcy law in violation
of the Constitution of the United States.
Alternatively, the Plaintiffs allege that the increased quarterly
fees charged to them are unconstitutional as applied to them due to
retroactive application of the increased quarterly fees to cases
filed prior to the Bankruptcy Judgeship Act of 2017. The
Plaintiffs, on their own behalf and on behalf of those similarly
situated, ask the Court to find 28 U.S.C. Sec. 1930(a)(6)(B)
unconstitutional as applied to Chapter 11 debtors whose cases were
filed before October 26, 2017, and who paid the increased quarterly
fee, and to award them a judgment in the amount of the increased
quarterly fees paid, based on a cause of action for illegal
exaction under the Tucker Act.
The Plaintiffs now seek a review of the Court's the final judgment
or an order entered in this action on November 30, 2020, and the
order denying Plaintiffs' motion to reconsider entered in this
action on May 6, 2021.
The appellate case is captioned as ACADIANA MANAGEMENT GROUP, LLC,
ALBUQUERQUE-AMG SPECIALTY HOSPITAL, LLC, CENTRAL INDIANA-AMG
SPECIALTY HOSPITAL, LLC, LTAC HOSPITAL OF EDMOND, LLC, HOUMA-AMG
SPECIALTY HOSPITAL, LLC, LTAC OF LOUISIANA, LLC, LAS VEGASAMG
SPECIALTY HOSPITAL, LLC, WARREN BOEGEL, BOEGEL FARMS, LLC, THREE
BO'S, INC., Plaintiffs-Appellants v. UNITED STATES,
Defendant-Appellee, Case No. 21-1941, in the United States Court of
Appeals for the Federal Circuit, filed on May 11, 2021.[BN]
Plaintiffs-Appellants ACADIANA MANAGEMENT GROUP, LLC,
ALBUQUERQUE-AMG SPECIALTY HOSPITAL, LLC, CENTRAL INDIANA-AMG
SPECIALTY HOSPITAL, LLC, LTAC HOSPITAL OF EDMOND, LLC, HOUMA-AMG
SPECIALTY HOSPITAL, LLC, LTAC OF LOUISIANA, LLC, LAS VEGASAMG
SPECIALTY HOSPITAL, LLC, WARREN BOEGEL, BOEGEL FARMS, LLC, and
THREE BO'S, INC. Are represented by:
Bradley L. Drell, Esq.
Heather M. Mathews, Esq.
Chelsea M. Tanner, Esq.
GOLD, WEEMS, BRUSER, SUES & RUNDELL, APLC
2001 MacArthur Drive P. O. Box 6118
Alexandria, LA 71307-6118
Telephone: (318) 445-6471
Facsimile: (318) 445-6476
E-mail: bdrell@goldweems.com
- and -
August Rantz, IV, Esq.
RANTZ IV, LLC
101 La Rue France, Ste. 500
Lafayette, LA 70508
Telephone: (337) 269-9566
Facsimile: (337) 269-6375
UNITED STATES: Betsy DeVos Ordered to Testify in Class Action
-------------------------------------------------------------
courthousenews.com reports that rejecting arguments that making a
cabinet official testify threatens the separation of powers, a
federal judge ordered former Education Secretary Betsy DeVos to
answer questions about long delays and mass denials of student debt
relief claims.
U.S. District Judge William Alsup found evidence of bad faith in
the agency's stated reasons for an 18-month halt in processing debt
relief claims, among other factors, creates an extraordinary
circumstance that warrants making DeVos sit down for a three-hour
deposition.
"Even assuming Secretary DeVos retains some measure of executive
prerogative, she must answer an appropriately issued subpoena,"
Alsup wrote in an 11-page ruling. "Judicial process runs even to
unwilling executives."
The testimony was sought in a class action brought by lead
plaintiff Theresa Sweet in 2019. The lawsuit claims the Trump
administration's "pause" in processing borrower defense claims
became a "policy of inaction and obfuscation" that prevented
defrauded students from obtaining debt relief as required by law.
The borrowers argued that long delays left more than 160,000
students "in limbo," damaged their credit and permanently delayed
their accumulation of wealth.
The U.S. Education Department had moved to quash the subpoena,
arguing that court-ordered depositions of cabinet members are
supposed to be exceedingly rare. The government cited the U.S.
Supreme Court's 1941 ruling in United States v. Morgan, which found
it was improper for a lower court to make the Agriculture secretary
testify at trial in a lawsuit over maximum rates for stockyard
services.
Court orders that make high-level executive branch officials
testify would "threaten the separation of powers, chill agency
decision-making, discourage public service, and create potential
for abuse or harassment," the Education Department argued in its
motion to quash the subpoena.
But Alsup cited numerous cases in which cabinet members were
ordered to testify. He also noted "extraordinary circumstances"
identified by U.S. appeals courts in which cabinet officials can be
called to answer questions. Those circumstances include situations
where a "strong showing of bad faith or improper behavior" are
present, where an official has "unique and relevant first-hand
knowledge" and where the necessary information cannot be obtained
through "other less burdensome or intrusive means."
Alsup surmised the reasons the secretary gave for an 18-month
freeze on deciding borrower defense claims was contradicted by the
department's later actions. The department said it needed more time
for "considered decision-making," but when it resumed processing
applications in December 2019, it used letters with boilerplate
language to deny 94% of 78,400 claims in a matter of months.
Alsup wrote the decisions were issued "not at measured but
breakneck pace, in perfunctory and unreasoned form-denial letters,
at an alarming rate."
He called it an "apparent pretext" and the "paradigm of agency bad
faith" that goes against the presumption of agency "conscience and
intellectual discipline" that supports the custom of generally not
ordering cabinet officials to testify.
The judge further noted that lower-level department officials could
not say who approved the boilerplate letters used to deny 94% of
borrower defense claims. That denial rate stood in stark contrast
to the Obama administration's 0.8% denial rate.
"The high-level officials already deposed have disclaimed authority
for that conduct and have instead pointed to the Secretary," Alsup
wrote.
The judge stayed his ruling for 14 days to give the government time
to appeal.
Toby Merrill, director of the Project on Predatory Student Lending,
which represents student borrowers in the lawsuit, said the Biden
administration inherited a "massive problem" in handling student
borrower defense claims from prior administrations.
"Instead of acting quickly to fix it, the Biden-Harris
administration has spent its time trying to protect Betsy DeVos
from testifying to expose what really happened with borrower
defense, has left her entire team in place, and has extended her
legacy of unacceptable inaction," Merrill said in an emailed
statement. "Our clients have been cheated by their schools and
their government, and they should not be forced to wait one more
day for the Department to do the right thing."
An Education Department spokesperson insisted that the Biden
administration is working to address problems with the system for
evaluating borrower defense applications.
"The Biden administration is deeply committed to improving the
borrower defense program, and is actively evaluating policy changes
and improvements necessary to ensure that the program works well
for all student loan borrowers," acting Education Department
assistant secretary Rachel Thomas said in an emailed statement.
"That evaluation has already led to action that will enable tens of
thousands of borrowers to receive 100% relief."
Enacted in 2015 by the Obama administration, the borrower defense
rule gave students who attended predatory for-profit colleges an
avenue to have their loan debt forgiven. The rule was enacted as
the government started cracking down on for-profit schools
including ITT Technical Institute, Corinthian Colleges and DeVry
University, which were investigated for deceiving students about
post-graduation job prospects.
The Education Department previously agreed to settle the lawsuit in
April 2020. It vowed to process more than 170,000 outstanding
claims within 18 months and to wipe out interest that accrued on
loans while those borrower defense claims were pending.
The settlement was ultimately rejected after plaintiffs accused the
department of using "boilerplate language" to deny virtually all
claims for debt relief, including for students who attended schools
that were found to have engaged in fraud by the Federal Trade
Commission and other federal and state agencies.
In his October 2020 decision denying the motion for settlement
approval, Alsup wrote that the department was "issuing perfunctory
denial notices utterly devoid of meaningful explanation at a
blistering pace" and forcing borrowers to cope with a "disturbingly
Kafkaesque" process for obtaining debt relief.[GN]
UNITED STATES: Bowling Files Appeal to USCAVC
---------------------------------------------
Claimants Charlotte A. Bowling and Kevin D. Appling filed an appeal
from a court ruling entered in the lawsuit styled CHARLOTTE A.
BOWLING AND KEVIN D. APPLING V. DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS, Case Nos. 18-5263, 18-5263, in the United States
Court of Appeals for Veterans Claims.
Mr. Charlotte A. Bowling is the surviving spouse of veteran Charles
E. Bowling. She appeals, through counsel, a July 31, 2018, Board of
Veterans' Appeals decision that determined, among other things,
that Mr. Bowling's character of discharge for the period of service
from November 3, 1965, to April 24, 1970, was a bar to VA benefits
for claims based on that service period. Mr. Kevin D. Appling
appeals, through counsel, an October 10, 2018, Board decision that
determined that his character of discharge was a bar to VA
benefits. These appeals are timely, and the Court has jurisdiction
to review the Board decisions pursuant to 38 U.S.C. Sections
7252(a) and 7266(a). Ms. Bowling's appeal was referred to a panel
of the Court to address her argument that the definition of
"insanity" in 38 C.F.R. Section 3.354(a) is unconstitutional
because it denies claimants due process of law. Mr. Appling made an
identical argument in his initial brief. In July 2019, the Court
granted appellants' request that their appeals be consolidated for
the purpose of addressing their common argument regarding the
validity of Section 3.354.
The Court held that appellants have not met their burden to
demonstrate that Section 3.354(a) denies claimants due process or
is constitutionally invalid. Therefore, the Court affirmed the
October 10, 2018, Board decision concerning Mr. Appling. The Court
also affirmed those portions of Ms. Bowling's July 31, 2018, Board
decision that found that Mr. Bowling's character of discharge for
his second service period was a bar to VA benefits, as well as, to
the extent that the character of discharge decision is
determinative, its decisions as to any of the 13 specifically
claimed disabilities. The remainder of Ms. Bowling's appeal was
dismissed.
The Claimants now seek a review of the Court's Judgment dated April
20, 2021 affirming the portion of the July 31, 2018, Board decision
finding that Mr. Bowling's character of discharge for the period of
service from November 3, 1965, to April 24, 1970, was a bar to VA
benefits for claims based on that service period, and the October
10, 2018, Board decision regarding Mr. Appling's character of
discharge; and dismissing the portion of the July 31, 2018, Board
decision denying additional claims on a basis other than the
character of Mr. Bowling's discharge from his second period of
service and the motion for class certification.
The appellate case is captioned as CHARLOTTE A. BOWLING, KEVIN D.
APPLING, Claimants-Appellants v. DENIS MCDONOUGH, Secretary of
Veterans Affairs, Respondent-Appellee, Case No. 21-1970, in the
United States Court of Appeals for the Federal Circuit, filed on
May 21, 2021.[BN]
Claimants-Appellants CHARLOTTE A. BOWLING and KEVIN D. APPLING are
represented by:
James D. Ridgway, Esq.
BERGMANN & MOORE, LLC
7920 Norfolk Avenue, Suite 700
Bethesda, MD 20814
Telephone: (301) 290-3138
E-mail: JRidgway@vetlawyers.com
UNITED STATES: Perry-Bey Appeals Personal Injury Suit Dismissal
---------------------------------------------------------------
Plaintiff ROY L. PERRY-BEY filed an appeal from a court ruling
entered in the lawsuit entitled Roy Perry-Bey v. U.S. Department of
Defense, Case No. 2:19-cv-00344-RAJ-DEM, in the United States
District Court for the Eastern District of Virginia at Norfolk.
On May 15, 2020, in response to the global health crisis caused by
the COVID-19 pandemic, the United States House of Representatives
adopted House Resolution 965, 116th Congress. The adopted
resolution creates a framework by which Members of the House may
designate proxies to cast votes on their behalf based on their
explicit instructions. Plaintiffs -- a group of House Members and
constituents -- filed suit seeking declaratory judgment that H.
Res. 965 is unconstitutional and an injunction against its
continued use in the House. The Plaintiffs argued the resolution
violates the Quorum Requirement, the Yeas and Nays Requirement, the
nondelegation doctrine, and the general structure of the United
States Constitution, which they maintain require actual physical
presence to do the business of the House. The Defendants urged the
Court not to reach the merits of the case, arguing that various
threshold doctrines bar review of Plaintiffs' claims. Because the
Court found that Defendants are immune from suit under the Speech
or Debate Clause of the Constitution, it did not reach the merits
and granted Defendants' Motion to Dismiss.
Mr. Perry-Bey is now seeking a review of the Court's Order dated
May 13, 2021, dismissing the case.
The appellate case is captioned as Roy Perry-Bey v. U.S. Department
of Defense, Case No. 21-1604, in the United States Court of Appeals
for the Fourth Circuit, filed on May 21, 2021.[BN]
Plaintiff-Appellant ROY L. PERRY-BEY, and all others similarly
situated, of Hampton, Virginia, appears pro se.
Defendants-Appellees JOHN E. WHITLEY; THOMAS B. MODLY, in his
official capacity as Acting Secretary of the Navy; DENIS R.
MCDONOUGH; JOHN P. ROTH; UNITED STATES DEPARTMENT OF DEFENSE; and
LLOYD AUSTIN are represented by:
Garry Daniel Hartlieb, Esq.
OFFICE OF THE UNITED STATES ATTORNEY
8000 World Trade Center
101 West Main Street
Norfolk, VA 23510-1624
Telephone: (757) 441-6331
E-mail: garry.hartlieb@usdoj.gov
UNIVERSAL HEALTH: Appeals Class Cert. Ruling in Boley to 3rd Cir.
-----------------------------------------------------------------
Defendants Universal Health Services Inc., et al., filed an appeal
from a court ruling entered in the lawsuit entitled MARY K. BOLEY,
et al., v. UNIVERSAL HEALTH SERVICES, INC., et al., Case No.
2-20-cv-02644, in the United States District Court for the Eastern
District of Pennsylvania.
As previously reported in the Class Action Reporter, the lawsuit is
a class action against the Defendants for breach of the fiduciary
duties of loyalty and prudence and failure to monitor fiduciaries
pursuant to the Employee Retirement Income Security Act of 1974.
The Plaintiffs, on behalf of themselves and on behalf of all others
similarly-situated participants and beneficiaries of the Universal
Health Services, Inc.'s Retirement Savings Plan, allege that the
Defendants breached the duties they owed to them, to the Plan, and
to the other participants of the Plan by failing to objectively and
adequately review the Plan's investment portfolio with due care to
ensure that each investment option was prudent, in terms of cost;
and maintaining certain funds in the Plan despite the availability
of identical or materially similar investment options with lower
costs and/or better performance histories. Moreover, Universal and
the Board Defendants failed to monitor and evaluate the performance
of the Committee Defendants which led to their failure to remove
Committee members whose performance was inadequate in that they
continued to maintain imprudent, excessively costly, and poorly
performing investments within the Plan, and caused the Plan to pay
excessive recordkeeping fees, all to the detriment of the Plan and
Plan participants' retirement savings.
The Defendants seek a review of the order entered by the Hon. Judge
J. Kearney on March 8, 2021:
1. certifying a class of:
"All participants and beneficiaries in the Universal
Health Services, Inc. Retirement Savings Plan at any
time
on or after June 5, 2014 to the present, including
a beneficiary of a deceased person who was a
participant in the Plan at any time during the Class
Period;"
2. appointing Mary K. Boley, Kandie Sutter, and Phyllis
Johnson as Class representatives;
3. certifying the Plaintiffs' counsel Capozzi Adler. P.C.
(led by Mark K. Gyandoh, Donald R. Reavey and Gabrielle
P.
Kelerchian) and Shepherd Finkelman Miller & Shah, LLP
(led
by James E. Miller, James C. Shah, Eric L. Young, and
Laurie Rubinow) as class counsel; and
4. directing the Plaintiff's counsel to submit a joint
motion
to approve a form and protocol for Notice to the Class
to
satisfy the terms and due process obligations under
Rule
23 and, if necessary, including describing both
parties'
position on any remaining irreconcilable objection to
the
negotiated Notice.
The appellate case is captioned as Mary Boley, et al. v. Universal
Health Services Inc, et al., Case No. 21-2014, in the United States
Court of Appeals for the Third Circuit, filed on May 26, 2021.[BN]
Defendants-Petitioners UNIVERSAL HEALTH SERVICES INC. And UNIVERSAL
HEALTH SERVICES INC RETIREMENT PLANS INVESTMENT COMMITTEE are
represented by:
Deborah S. Davidson, Esq.
MORGAN LEWIS & BOCKIUS
77 West Wacker Drive, Suite 500
Chicago, IL 60601
Telephone: (312) 324-1159
E-mail: ddavidson@morganlewis.com
- and -
Stephen K. Dixon, Esq.
Sean K. McMahan, Esq.
MORGAN LEWIS & BOCKIUS
1111 Pennsylvania Avenue, N.W., Suite 800
North
Washington, DC 20004
Telephone: (202) 739-3000
E-mail: stephen.dixon@morganlewis.com
sean.mcmahan@morganlewis.com
- and -
Brian T. Ortelere, Esq.
MORGAN LEWIS & BOCKIUS
1701 Market Street
Philadelphia, PA 19103
Telephone: (215) 963-5150
E-mail: bortelere@morganlewis.com
Plaintiffs-Respondents MARY K. BOLEY, KANDIE SUTTER, and PHYLLIS
JOHNSON, Individually and as representatives of a class of
similarly situated persons, on behalf of the Universal Health
Services, Inc. Retirement Savings Plan, are represented by:
Lisa W. Basial, Esq.
Mark K. Gyandoh, Esq.
Donald R. Reavey, Esq.
CAPOZZI ADLER
2933 North Front Street
Harrisburg, PA 17110
Telephone: (717) 233-4101
E-mail: lisawb@capozziadler.com
markg@capozziadler.com
donr@capozziadler.com
- and -
Alec Berin, Esq.
Michael P. Ols, Esq.
James C. Shah, Esq.
MILLER SHAH
1845 Walnut Street, Suite 806
Philadelphia, PA 19103
Telephone: (610) 891-9880
E-mail: aberin@sfmslaw.com
mols@sfmslaw.com
jshah@sfmslaw.com
- and -
Gabrielle P. Kelerchian, Esq.
CAPOZZI ADLER
312 Old Lancaster Road
Merion Station, PA 19066
Telephone: (215) 669-8687
E-mail: Gabriellek@capozziadler.com
- and -
James E. Miller, Esq.
Laurie Rubinow, Esq.
MILLER SHAH
65 Main Street
Chester, CT 06412
Telephone: (860) 526-1100
E-mail: jmiller@sfmslaw.com
lrubinow@sfmslaw.com
- and -
Kolin Tang, Esq.
MILLER SHAH
1401 Dove Street, Suite 540
Newport Beach, CA 92660
Telephone: (323) 510-4066
E-mail: ktang@sfmslaw.com
UNIVERSITY OF IOWA: Hospital Workers Gain Class Action Cert.
------------------------------------------------------------
Vanessa Miller at thegazette.com reports that a federal judge has
certified as class-action a lawsuit filed two years ago by a group
of University of Iowa Hospitals and Clinics employees -- including
nurses and custodians -- accusing their employer of, among other
things, failing to pay wages and overtime on time.
U.S. District Court Judge Stephanie Rose certified two classes in
her ruling on the lawsuit originally filed against Iowa's Board of
Regents -- which governs the University of Iowa and UIHC -- in
August 2019.
She previously certified a third class of employees asserting UIHC
had failed to pay their overtime by their next regular payday.
Rose certified class status for:
-- Union members, like nurses, who have worked for UIHC since Aug.
19, 2017, and "blue collar workers," like custodians, who've worked
there since Oct. 7, 2017, who have not received wages until more
than 12 days after the end of their pay period.
-- Union and blue-collar workers who've worked for UIHC since Oct.
7, 2017, and have since been terminated and have not received
accrued vacation pay -- or up to $2,000 unused accumulated sick
leave for retired employees 55 or older -- by what would have been
their next regular payday.
Attorneys representing current and former UIHC employees suing the
board expect the approved class statuses will cover more than 8,000
workers.
Employees covered under the class definitions must opt out to be
excluded from the lawsuit, and attorneys are planning to send a
notice giving employees that option.
UIHC officials said they can't comment on pending litigation, but
confirmed the organization did make payroll changes in the past
year.
UI Health Care transitioned staff nurse and select professional
classifications to a "non-exempt" status - moving them to four-week
work schedules instead of six-week work schedules, helping align
their schedules and payroll dates.
UIHC also shifted to a biweekly payment period for employees
eligible to receive overtime and other pay adjustments, helping to
better align UIHC's pay practices with other health care providers
nationally.
In the original lawsuit, workers accuse UIHC of maintaining a
policy and practice of not paying adjustments in the pay period
when they're earned or within 12 days, as required by Iowa law.
"Instead, these health care workers are routinely not paid their
wage 'adjustments' until one or two months after the period in
which they were earned," according to the lawsuit.
The August 2019 lawsuit came after The Gazette weeks earlier
reported UIHC worker concerns with how they're paid for working
extra shifts.
At the time, although UIHC nurses and other providers earned a
salary on a monthly basis, they operated as hourly employees
capable of earning pay adjustments by working extra hours,
overnight, weekends or longer shifts.
After the state stripped collective bargaining rights in 2017,
unionized UIHC workers lost much of their negotiated contract and
power. And the hospital changed when and how it paid employee
adjustments.
The lawsuit and pay dispute came before COVID-19, which compounded
UIHC's need for overtime and staff willing to work extra shifts.
Last summer, facing dire pandemic-propelled losses, UIHC enacted
administrative pay cuts and furloughs or returned vacation hours
for unionized staffers.
If, however, UIHC beats its budget this fiscal year and achieves a
target margin of 3 percent, each staffer will get a bonus equal to
1 percent of his or her annual base pay. [GN]
UNIVERSITY OF MICHIGAN: Faces Suit Over Handling of Sexual Assault
------------------------------------------------------------------
Jared Dougall at michigandaily.com reports that a class action
complaint was filed in the U.S. District Court for the Eastern
District of Michigan against the University of Michigan for its
handling of allegations of sexual assault against former University
doctor Robert E. Anderson. The complaint, in order to prevent and
respond to sexual violence on the U-M campus, seeks a court order
that will require the University to carry out major reforms
surrounding the school's best-practice policies and procedures
related to sexual and gender-based abuse on campus.
"The patient-physician relationship involves a solemn commitment
and trust," the complaint reads. "Without trust, how could a
physician expect patients to reveal the full extent of their
medically relevant history, expose themselves to the physical exam,
or act on recommendations for tests or treatments? For decades, the
University of Michigan allowed and enabled a physician in its
employ, Dr. Robert E. Anderson to continuously violate that solemn
trust."
The complaint, which lists a series of reforms and best-practices,
states that the University needs to implement more training and
education, and add additional policies for how to identify, prevent
and respond to sexual and gender-based assault. It also seeks to
appoint an "independent monitor" to oversee the implementation of
these policies and report on progress to the court.
Some lawyers representing plaintiffs, like Annika K. Martin, made
statements providing support to victims of Anderson.
"Everyone who was abused by Robert Anderson – including those who
may not be ready to come forward – deserves an opportunity to
hold U-M accountable and have their voice heard," Martin said. "U-M
has repeatedly failed to implement policies that put students
first, and accordingly this complaint seeks relief through the
court to ensure they will."
Led by LSA junior Josephine Graham, the complaint is a companion to
a suit filed in March 2020 by survivors of abuse at the hands of
Anderson. The complaint alleges the University and its Regents
enabled Anderson's sexual abuse of students from 1968 until 2003.
"The Anderson case is one of many at U-M rooted in the university's
pervasive and broken culture mirroring our greater society," Graham
said in a press release. "Gender-based violence is a complex,
systemic issue that requires systemic solutions to prevent and
eradicate it."
More than 70 individual lawsuits have been filed in federal court,
but the class action suit, unlike the individual lawsuits which
only represent specific plaintiffs, seeks to prosecute the
University on behalf of all students affected by Anderson - even
those who may not be ready to come forward.
Since October 2020, the lawyers representing the University and the
lawyers who brought the original class action suit have been in
negotiations. A settlement could cost the University millions of
dollars in damages to the hundreds of alleged victims of Anderson's
abuse.
The law firm WilmerHale completed their independent investigation
of the allegations against Anderson. The investigation concluded
that there was "no doubt" about the fact that the hundreds of
complaints against Anderson were credible and Anderson exhibited a
consistent pattern of misconduct. The report outlines
recommendations for the University to follow in order to improve
upon their practices and procedures regarding sexual assault.
In an email to the Daily, U-M spokeswoman Kim Broekhuizen wrote
that while the University issues its sincerest apologies for the
abuse that occurred under the late Robert Anderson, the recent
lawsuit has no legal standing. Broekhuizen wrote that Anderson has
not been employed by the University since before the majority of
the incoming Class of 2025 was born in 2003 and the University has
adopted dozens of policies to prevent actions like Anderson's from
being repeated since then.
"Many members of our community are now a part of the formal effort
to improve the culture of the institution even further as it
relates to sexual and gender-based misconduct through a process
that engages the community in the co-creation of change, across all
entities on our campuses." Broekhuizen wrote, "We look forward to
working with representatives of all members of our community,
especially students, to reach that goal in the coming months."[GN]
UNIVERSITY OF PITTSBURGH: Hickey Appeals Case Dismissal to 3rd Cir.
-------------------------------------------------------------------
Plaintiffs Claire Hickey, Akira Kirkpatrick, Valeri Natoli, Candace
N. Graham, Nicholas Bowes, and Carly Swartz filed an appeal from a
court ruling entered in their lawsuit styled CLAIRE HICKEY, AKIRA
KIRKPATRICK, VALERI NATOLI, CANDACE N. GRAHAM, NICHOLAS BOWES, and
CARLY SWARTZ, on behalf of themselves and all others similarly
situated, Plaintiffs v. UNIVERSITY OF PITTSBURGH, Defendant, Case
No. 2-20-CV-690-WSS, in the U.S. District Court for the Western
District of Pennsylvania.
As reported in the Class Action Reporter on May 21, 2020, the
lawsuit seeks the University's disgorgement and return of the pro
rated portion of the tuition and mandatory fees, proportionate to
the amount of time that remained in the Spring Semester 2020 when
the University closed and switched to online distance learning or,
in the case of housing and dining, for any members of the Class
that moved out of University housing after April 3, 2020, a
prorated portion of the housing and dining fee for the days left in
the semester after they moved out.
The University's failure to provide the services for which tuition
and the Mandatory Fees were intended to cover since approximately
March 23, 2020, is a breach of the contracts between the University
and the Plaintiffs and the members of the Class, and is unjust,
according to the complaint. The University only provided prorated
refunds to students for housing and dining, who vacated their
campus housing on or before April 3, 2020. Those students, who did
not move out of University housing until after April 3, should also
be entitled to a prorated refund, the Plaintiffs aver.
According to the complaint, the Plaintiffs and the members of the
Class have paid for tuition for a first-rate education and
educational experience, with all the appurtenant benefits offered
by a first-rate university, and were provided a materially
deficient and insufficient alternative, which alternative
constitutes a breach of the contracts entered into by the
Plaintiffs and the Class with the University. As to Mandatory Fees,
the Plaintiffs and the Class have paid fees for services and
facilities which are simply not being provided; this failure also
constitutes a breach of the contracts entered into by the
Plaintiffs and the Class with the University.
The Plaintiffs now seek a review of the Court's April 27, 2021
Opinion, Order, and Judgment, granting Defendant's motion to
dismiss the case with prejudice.
The appellate case is captioned as CLAIRE HICKEY, et al. v.
UNIVERSITY OF PITTSBURGH, Case No. 21-2013 in the U.S. Court of
Appeals for the Third Circuit, filed on May 25, 2021.[BN]
Plaintiffs-Appellants Claire Hickey, Akira Kirkpatrick, Valeri
Natoli, Candace N. Graham, Nicholas Bowes, and Carly Swartz are
represented by:
Jeffrey A. Klafter, Esq.
Seth R. Lesser, Esq.
Amir Alimehri, Esq.
KLAFTER LESSER LLP
2 International Drive, Suite 350
Rye Brook, New York 10601
Telephone: (914) 934-9200
Facsimile: (914) 934-9220
E-mail: jak@klafterlesser.com
seth@klafterlesser.com
amir.alimehn@klafterlesser.com
- and -
Gary F. Lynch, Esq.
Edward W. Ciolko, Esq.
Kelly K. Iverson, Esq.
CARLSON LYNCH LLP
1133 Penn Avenue 5th Floor
Pittsburgh, PA 15222
Telephone: (412) 322-9243
Facsimile: (412) 231-0246
E-mail: glynch@carlsonlynch.com
eciolko@carlsonlynch.com
kiverson@carlsonlynch.com
- and -
Eric M. Poulin, Esq.
Roy T. Willey, IV, Esq.
ANASTOPOULO LAW FIRM, LLC
32 Ann Street
Charleston, SC 29403
Telephone: (843) 614-8888
Facsimile: (843) 494-5536
E-mail: eric@akimlawfirm.com
roy@akimlawfirm.com
VITAL FARMS: Faces Class Lawsuit Over Misleading Sale of Eggs
-------------------------------------------------------------
perishablenews.com reports that PETA Foundation attorneys helped
file a class-action lawsuit in Texas federal court against
Austin-based Vital Farms, Inc., on behalf of consumers who were
misled into buying eggs at a premium price because of the company's
false claims that it treats animals in an ethical and humane
manner.
The lawsuit alleges that Vital Farms obtains hens from hatcheries
that kill all male chicks at birth. Allegations also include that
Vital Farms burns or cuts off hens' highly sensitive beaks, an
industry-standard practice performed on stressed, severely crowded,
confined hens. The birds are allegedly kept in conditions that
cause many of them to spend most or all of their time indoors --
not in "pastures," as Vital Farms claims in words and images.
"Every one of these eggs represents the pain and suffering of
gentle hens who are confined, tormented, and ultimately killed,"
says PETA Foundation Director of Litigation Asher Smith. "Vegan
food is the only truly ethical choice, and PETA and compassionate
consumers hope to see an end to this company's malignant marketing
gimmicks."
The lawsuit also alleges that Vital Farms causes hens to lay far
more eggs than they would naturally, taxing their bodies and
leading to health issues such as osteoporosis. The lawsuit alleges
-- based on admissions of Vital Farms' founder and executive chair,
Matthew O'Hayer -- that when hens stop laying enough eggs to be
profitable, they're sold to pet food companies and killed for cheap
meat, likely right alongside their factory-farmed counterparts.
Despite all this, Vital Farms deceptively touts its "humane
treatment of farm animals" in every carton, alongside photos that
misleadingly show hens free to roam on green grass.
The nine plaintiffs -- including individuals from New York City;
Los Angeles and Marina del Rey, California; Warren, Michigan;
Crosby, Texas; and Cooper City, Florida -- are also represented by
Richard L. Stone of Blackner Stone & Associates and Jesse Weiss of
Edmundson Shelton Weiss PLLC. O'Hayer along with Vital Farms' CEO
and chief marketing officer are also named as defendants.
PETA -- whose motto reads, in part, that "animals are not ours to
eat" -- opposes speciesism, a human-supremacist worldview. For more
information, please visit PETA.org or follow the group on Twitter,
Facebook, or Instagram. [GN]
VOLKSWAGEN AG: Eastern District of New York Dismisses Mucha Suit
----------------------------------------------------------------
In the case, WAYNE and LINDA MUCHA, individually and on behalf of
all others similarly situated, Plaintiffs v. VOLKSWAGEN
AKTIENGESELLSCHAFT, MATTHIAS MÜLLER, MARTIN WINTERKORN, FRANK
WITTER, and HANS DIETER POTSCH, Defendants, Case No. 17-cv-5092
(DLI)(PK) (E.D.N.Y.), Judge Dora L. Irizarry of the U.S. District
Court for the Eastern District of New York granted the Defendants'
motions to dismiss failure to state a claim.
Wayne and Linda Mucha brought the putative class action on behalf
of purchasers of American Depository Receipts ("ADRs") sponsored by
Volkswagen, for the period from Aug. 30, 2012 through July 21,
2017, pursuant to Sections 10(b), 15 U.S.C. Section 78j(b), and
20(a), and 15 U.S.C. section 78t(a) of the Securities Exchange Act
of 1934, and Rule 10b-5, 17 C.F.R. Section 240.10b-5. In addition
to Volkswagen, the Plaintiffs named as Defendants current and
former members of Volkswagen's Board of Management, Matthias
Müller, Frank Witter, and Hans Dieter Potsch, as well as Martin
Winterkorn, who has not appeared in the action.
The Plaintiffs allege that, beginning in the 1990s, in response to
competitive pressures from Japanese manufacturers, the so-called
"Group of Five" German automakers, Volkswagen, Daimler, BMW, Audi
and Porsche, formed a "cartel" to suppress competition among them
and protect their profit margins. The cartel was organized through
more than 60 "working groups" staffed by personnel from members of
each company. Each working group focused on a particular aspect of
the manufacturing process, which facilitated the flow of sensitive,
proprietary information among the Group of Five. The Plaintiffs
allege that much of this cooperation was "in violation of European
and German law." Through the working groups, the Group of Five
coordinated the development of new technologies so that no one
member could outpace the others and cooperated on a common strategy
on the purchase of raw materials and manufacturing inputs.
The Plaintiffs allege that the relevant IFRSs required Volkswagen
to disclose, inter alia, its "contingent liabilities" and make a
"fair presentation" of its finances. They allege Volkswagen failed
to comply with these obligations by not disclosing its
anticompetitive practices, rendering its accounting standards
statements false or misleading.
On July 4, 2016, after Germany's Federal Cartel Office came across
evidence of the cartel's existence during the course of a separate
investigation, Volkswagen informed European and German authorities
of its participation in "suspected cartel infringements" and
provided them with relevant records. On July 21, 2017, the German
magazine Der Spiegel published a report revealing that European and
German regulators had opened investigations into the Group of Five
for suspected violations of European competition laws. Upon
publication of the Der Spiegel report, Volkswagen's common and
preferred stock dropped by 2.6% and 2.7%, respectively. All
members of the Group of Five currently are under investigation by
regulators from the European Commission and the Federal Cartel
Office in Germany.
The Plaintiffs filed the initial Complaint against Volkswagen and
the Individual Defendants on Aug. 29, 2017 and the Amended
Complaint on July 13, 2018. Count One alleges violations of
Section 10(b) of the Exchange Act against all Defendants and Count
Two alleges violations of Section 20(a) of the Exchange Act against
the Individual Defendants.
Volkswagen and the Individual Defendants moved to dismiss the
Amended Complaint pursuant to Rules 12(b)(2) and 12(b)(6) of the
Federal Rules of Civil Procedure. The Plaintiffs opposed both
motions. Volkswagen and the Individual Defendants replied in
further support of their motions.
Volkswagen and the Individual Defendants move to dismiss the
Amended Complaint on five grounds: (1) forum non conveniens because
Germany is a superior forum for this action; (2) the alleged
misstatements or omissions are not material; (3) the alleged
misstatements are not false; (4) Volkswagen had no duty to disclose
the alleged anticompetitive conduct and that, in any case, the
Plaintiffs do not allege adequately that the conduct was unlawful;
and (5) the Plaintiffs have not alleged facts supporting a strong
inference of scienter. In addition to these grounds, the
Individual Defendants move to dismiss the claims against them for
lack of personal jurisdiction.
Analysis
I. Personal Jurisdiction
Judge Irizarry opines that while a foreign director who signed SEC
filings may have a greater awareness that his statements would
reach American investors, "it is the Defendant's actions, not his
expectations" that may render an individual subject to the Court's
exercise of personal jurisdiction. She says the Plaintiffs have
established that the Individual Defendants had sufficient minimum
contacts with the United States. The Individual Defendants, who
approved the reports, "followed a course of conduct directed at the
jurisdiction of a given sovereign, so that the sovereign has the
power to subject the defendant to judgment concerning that
conduct."
The Judge further concludes that it is not the "rare case" where
the exercise of personal jurisdiction would be unreasonable even
though minimum contacts have been established. While subjecting
the Individual Defendants to the Court's jurisdiction undoubtedly
imposes a burden on them, the United States has an interest in
ensuring that investors who purchase securities in the United
States are not defrauded by the issuer or sponsor of those
securities. Accordingly, the Individual Defendants' motion to
dismiss the action for lack of personal jurisdiction is denied.
II. Forum Non Conveniens
Volkswagen contends that the Plaintiffs are not entitled to their
choice of forum because they do not allege they are residents of
New York and the allegations in the Amended Complaint concern
events that took place outside of the United States. Volkswagen
further asserts that the ADRs purchased by the Plaintiffs are
"foreign in character" and are not traded on any U.S. exchange and,
instead, are sold "over the counter" ("OTC"). It also maintains
that the annual reports containing the alleged material
misstatements or omissions were not filed with the SEC.
Judge Irizarry concludes that the Plaintiffs' choice of forum is
entitled to little deference because they have not alleged their
residence. Many of the Plaintiff's reasons for selecting this
forum suggest they were motivated by disfavored forum shopping.
The parties agree that Germany, the proposed alternative venue, is
an adequate forum for resolving this dispute. The private interest
factors are neutral in the analysis. Although the majority of the
witnesses and evidence are located in Germany, the Defendants'
financial resources and the availability of technology and
transportation decrease the burdens on Defendants associated with
litigating this action in the United States, neutralizing this
factor.
The Court and the public at large have a strong interest in
ensuring a domestic means of redress for victims of fraud in the
United States securities markets. The Defendants have availed
themselves of the United States banking system in marketing
securities in a foreign market to United States investors. This
factor weighs heavily against dismissal. The Defendants bear a
heavy burden in the forum non conveniens analysis. In balancing
the factors discussed, they do not tilt heavily in the Defendants'
favor. Accordingly, the Defendants' motion to dismiss on forum non
conveniens grounds is denied.
III. Standards Governing Defendants' Motion to Dismiss for Failure
to State a Claim
Volkswagen contends that the Plaintiffs' securities fraud claims
must fail because the latter have not alleged adequately that the
company was engaged in unlawful anticompetitive conduct, and, even
if it had, the company was under no duty to disclose it. It also
argues that the Plaintiffs fail to state a claim for securities
fraud because the statements identified in the Amended Complaint
are not adequately alleged to be false or are not material, nor do
the Plaintiffs adequately allege facts supporting a strong
inference of scienter.
The Plaintiffs counter that their factual allegations regarding the
anticompetitive conduct, coupled with references to German and
European government entities, are sufficient to allege that the
anticompetitive conduct was illegal, and that Volkswagen was under
a duty to disclose it by virtue of its public statements putting
the subject in issue.
First, Judge Irizarry holds that the Plaintiffs' failure to
identify any specific laws or to plead with particularity how
Volkswagen's conduct violated those laws is fatal to the Amended
Complaint. However, for the sake of completeness, she finds it
appropriate to identify alternative bases for dismissal. Second,
even accepting the truth of the Plaintiffs' allegations regarding
the anticompetitive conspiracy, these statements are not adequately
alleged to be false. Even if true, the alleged anticompetitive
conduct does not render these statements, which are general
puffery, false or misleading. Thus, these statements are not
actionable.
Third, the Judge declines to hold that IAS1 goes farther than IAS37
or Item 303 of Regulation S-K in requiring disclosure of unlawful
conduct prior to the initiation of an investigation. The
Plaintiffs have not identified an accounting standard requiring
Volkswagen to disclose the alleged anticompetitive conduct and
Volkswagen's statements regarding compliance with IFRSs alone do
not create a duty to disclose the alleged conduct. Accordingly,
Volkswagen's accounting standards statements cannot serve as a
basis for liability under Section 10(b) of the Exchange Act.
Fourth, the Plaintiffs failed to plead with particularity that
Defendants engaged in an unlawful, anticompetitive scheme with
their competitors. This deficiency renders their securities claims
concerning the competition statement in the 2016 Annual Report
"fatally flawed."
Finally, the Judge opines that the Plaintiffs have failed to plead
primary liability under Section 10(b) for the reasons set forth.
As such, their claims for control person liability under Section
20(a) of the Exchange Act necessarily fail.
Conclusion
For the reasons she set forth, Judge Irizarry denied the
Defendants' motion to dismiss the Amended Complaint as to the
Individual Defendants for lack of personal jurisdiction pursuant to
Fed. R. Civ. P. 12(b)(2). As to the non-appearing Defendant,
Winterkorn, the action is dismissed as to him for lack of personal
jurisdiction. The Defendants' motion to dismiss on forum non
conveniens grounds is denied. The Defendants' motion to dismiss
the Amended Complaint pursuant to Fed. R. Civ. P. 12(b)(6) is
granted.
A full-text copy of the Court's May 20, 2021 Opinion & Order is
available at https://tinyurl.com/2bamvw26 from Leagle.com.
WALLA WALLA PUBLIC: Crouthamel Appeals Summary Judgment to 9th Cir.
-------------------------------------------------------------------
Plaintiffs Carolyn Crouthamel, et al., filed an appeal from a court
ruling entered in the lawsuit entitled CAROLYN CROUTHAMEL, DIANE
MCCALLISTER, and JOANNE BAKER, on behalf of themselves and all
others similarly situated, as individuals, Plaintiffs v. WALLA
WALLA PUBLIC SCHOOLS, a Washington public school district;
EVERGREEN PUBLIC SCHOOL DISTRICT, a Washington public school
district; KENT PUBLIC SCHOOL DISTRICT, a Washington public school
district; and PUBLIC SCHOOL EMPLOYEES, SERVICE EMPLOYEES
INTERNATIONAL UNION LOCAL 1948, a labor corporation, Defendants,
Case No. 4:20-cv-05076-RMP, in the U.S. District Court for the
Eastern District of Washington, Richland.
According to the complaint, Defendant Service Employees
International Union Local 1948 (SEIU 1948) is the exclusive
collective bargaining representative for approximately 33,706
employees in various bargaining units in the State of Washington,
including bargaining units in the three Defendant school districts,
Walla Walla Public School District, Evergreen Public School
District, Kent Public School District. As of March 2020,
approximately 26,918 School District employees were dues paying
members of SEIU 1948.
School District employees are not required to become SEIU 1948
members as a condition of employment. For employees who elect to
sign union membership cards, the School Districts deduct dues from
their paychecks and remit those dues to SEIU 1948.
Prior to summer 2018, the School Districts allegedly deducted
agency fees from nonunion-members as a condition of employment and
remitted the fees to SEIU 1948. The agency fees were less than full
member dues. The School District ceased its practice of collecting
agency fees from nonmembers once the U.S. Supreme Court issued its
decision in Janus v. AFSCME Council 31, 138 S. Ct. 2448 (2018), on
June 27, 2018.
The Plaintiffs' Amended Complaint raises claims, on behalf of
themselves and others similarly situated, for: (1) violation of the
First Amendment of the U.S. Constitution, through 42 U.S.C. Section
1983, by deducting union dues or fees from Plaintiffs' wages; (2)
violation of due process under the Fourteenth Amendment of the U.S.
Constitution, through 42 U.S.C. Section 1983; (3) violation of the
First Amendment, through 42 U.S.C. Section 1983, to the extent that
RCW 41.56.110 and the relevant collective bargaining agreements
force Plaintiffs to maintain union membership over their objection;
(4) violation of the First Amendment and Fourteenth Amendment,
through 42 U.S.C. Section 1983, by agreeing or conspiring to
deprive Plaintiffs and class members of their constitutional
rights; (5) breach of contract under Washington State law, by
including irrevocability provisions in the 2018 SEIU 1948
membership agreements without consideration and in violation of the
original dues deduction authorization agreements; and (6) unjust
enrichment under Washington State law, by knowingly receiving a
benefit in the form of a percentage of Plaintiffs' wages.
The Plaintiffs seek a review of the Court's Order dated April 22,
2021, granting Defendants' cross-motion for summary judgment and
denying Plaintiffs' motion for summary judgment.
The appellate case is captioned as Carolyn Crouthamel, et al. v.
Walla Walla Public Schools, et al., Case No. 21-35387, in the
United States Court of Appeals for the Ninth Circuit, filed on May
20, 2021.
The briefing schedule in the Appellate Case states that:
-- Appellants Joanne Baker, Carolyn Crouthamel and Diane
McCallister Mediation Questionnaire was due on May 27, 2021;
-- Appellants Joanne Baker, Carolyn Crouthamel and Diane
McCallister opening brief is due on July 19, 2021;
-- Appellees Attorney General for the State of Washington,
Evergreen Public School District, Kent Public School District, Mike
Merlino, Service Employees International Union Local 1948, Wade
Smith, Walla Walla Public Schools and Calvin J. Watts answering
brief is due on August 18, 2021; and
-- Appellant's optional reply brief is due 21 days after service
of the answering brief.[BN]
Plaintiffs-Appellants CAROLYN CROUTHAMEL, DIANE MCCALLISTER, and
JOANNE BAKER, on behalf of themselves and a proposed class of
similarly situated individuals, are represented by:
James G. Abernathy, Esq.
Shella Sadovnik, Esq.
FREEDOM FOUNDATION
P.O. Box 552
Olympia, WA 98507
Telephone: (360) 956-3482
Defendants-Appellees WALLA WALLA PUBLIC SCHOOLS, a Washington
public school district; EVERGREEN PUBLIC SCHOOL DISTRICT, a
Washington public school district; KENT PUBLIC SCHOOL DISTRICT, a
Washington public school district; SERVICE EMPLOYEES INTERNATIONAL
UNION LOCAL 1948, a labor corporation, AKA SEIU 1948; MIKE MERLINO,
Superintendent of Evergreen Public Schools; CALVIN J. WATTS,
Superintendent of Kent School District; and WADE SMITH,
Superintendent of Walla Walla Public Schools, are represented by:
Paul Eric Clay, Esq.
STEVENS CLAY & MANIX
421 West Riverside
Spokane, WA 99201
Telephone: (509) 838-8330
E-mail: pclay@stevensclay.org
- and -
Francis S. Floyd, Esq.
John A. Safarli, Esq.
FLOYD, PFLUEGER & RINGER
200 W. Thomas Street
Seattle, WA 98119
Telephone: (206) 441-4455
E-mail: ffloyd@floyd-ringer.com
jsafarli@floyd-ringer.com
- and -
Scott A. Kronland, Esq.
Matthew John Murray, Esq.
ALTSHULER BERZON LLP
177 Post Street, Suite 300
San Francisco, CA 94108
Telephone: (415) 421-7151
E-mail: skronland@altber.com
mmurray@altber.com
- and -
Robert H. Lavitt, Esq.
BARNARD IGLITZIN & LAVITT LLP
18 West Mercer Street, Suite 400
Seattle, WA 98119
Telephone: (206) 257-6004
E-mail: lavitt@workerlaw.com
Intervenor-Defendant-Appellee ATTORNEY GENERAL FOR THE STATE OF
WASHINGTON is represented by:
Susan Sackett DanPullo, Esq.
WASHINGTON STATE OFFICE OF THE ATTORNEY GENERAL
7141 Cleanwater Drive SW
P.O. Box 40109
Olympia, WA 98504-0109
Telephone: (360) 664-4173
E-mail: susand1@atg.wa.gov
- and -
Alicia Orlena Young, Esq.
AGWA - OFFICE OF THE WASHINGTON
ATTORNEY GENERAL (OLYMPIA)
P.O. Box 40100
1125 Washington St., SE
Olympia, WA 98504-0100
Telephone: (360) 586-2697
E-mail: alicia.young@atg.wa.gov
WASTE MANAGEMENT: Class Settlement in Heigl Suit Has Final Approval
-------------------------------------------------------------------
In the case, JULLANNE HEIGL individually and on behalf of all
others similarly situated, Plaintiff v. WASTE MANAGEMENT OF NEW
YORK, LLC, Defendant, Civil Action No. 19-cv-05487-WFK-ST
(E.D.N.Y.), Magistrate Judge Steven L. Tiscione of the U.S.
District Court for the Eastern District of New York grants:
(i) the Plaintiff's Motion for Final Approval of the
Settlement Agreement; and
(ii) the Plaintiff's Motion for Attorneys' Fees, Costs,
Expenses, And Incentive Award.
The Parties have entered into a Class Action Settlement Agreement,
which, together with the exhibits attached thereto, sets forth the
terms and conditions for a proposed settlement and dismissal of the
Action with prejudice as to the Defendant upon the tennis and
conditions set forth therein.
On Aug. 27, 2020, the Court granted the Plaintiff's Motion for
Preliminary Approval of Class Action Settlement, conditionally
certifying a Class pursuant to Fed. R. Civ. P. 23(b)(3) of "all
Waste Management residential subscription customers (i.e.,
individual consumers who subscriber to Waste Management's
residential services, but not including individuals whose
residential waste collection services is/was provided by Waste
Management pursuant to a contract awarded following a competitive
bidding process) with a New York mailing address who from Sept. 27,
2016 to and through the date of the Order were charged and paid the
Defendant's Administrative Charge."
Judge Tiscione has considered the Parties' Class Action Settlement
Agreement, as well as the Plaintiff's Motion for Final Approval,
the Plaintiff's Motion for Attorneys' Fees, together with all
exhibits thereto, the arguments and authorities presented by the
Parties and their counsel at the Final Approval Hearing held on
Jan. 6, 2021, and the record in the Action, and good cause
appearing.
The Judge gives final approval to the Settlement Agreement, and
finds that the Settlement Agreement is fair, reasonable, adequate,
and in the best interests of the Settlement Class. The Settlement
is finally approved in all respects. The Parties are directed to
implement the Settlement Agreement according to its terms and
provisions. The Settlement Agreement is incorporated into the
Final Judgment in full and will have the full force of an Order of
the Court. The Action is dismissed on the merits and with
prejudice.
Judge Tiscione has also considered the Plaintiff's Motion For
Attorneys' Fees, Costs, Expenses, And Incentive Award, as well as
the supporting memorandum of law and declarations, and adjudges
that the payment of attorneys' fees, costs, and expenses in the
amount of $900,000 is reasonable in light of the multi-factor test
used to evaluate fee awards in the Second Circuit. Such payment
will be made pursuant to and in the manner provided by the terms of
the Settlement Agreement.
The Judge has also considered the Plaintiff's Motion, memorandum of
law, and supporting declarations for an incentive award to the
Class Representative, Julianne Heigl. He adjudges that the payment
of an incentive award in the amount of $5,000 to the Class
Representative to compensate her for her efforts and commitment on
behalf of the Settlement Class, is fair, reasonable, and justified
under the circumstances of the case. Such payment will be made
pursuant to and in the manner provided by the terms of the
Settlement Agreement.
All payments made to the Settlement Class Members pursuant to the
Settlement Agreement that are not negotiated within 180 days of
issuance will revert to the Legal Aid Society, Inc., which the
Judge approves as an appropriate cy pres recipient. Except as
otherwise set forth in the Order, the Parties will bear their own
costs and attorneys' fees.
The Parties, without further approval from the Court, are permitted
to agree and adopt such amendments, modifications, and expansions
of the Settlement Agreement and its implementing documents
(including all exhibits to the Settlement Agreement), including
extensions of time, so long as they are consistent in all material
respects with the Final Judgment and do not limit the rights of the
Settlement Class Members.
Without affecting the finality of the Final Judgment for purposes
of appeal, until the Effective Date the Court will retain
jurisdiction over all matters relating to administration,
consummation, enforcement, and interpretation of the Settlement
Agreement.
Judge Tiscione directs entry of the Final Judgment pursuant to
Federal Rule of Civil Procedure 58 based upon his finding that
there is no just reason for delay of enforcement or appeal of the
Final Judgment, and dismisses the Action with prejudice, with each
party to bear their own costs, except as provided in the Order or
in the Settlement Agreement.
A full-text copy of the Court's May 19, 2021 Final Judgment & Order
is available at https://tinyurl.com/9m45cs5w from Leagle.com.
WELLS FARGO: Underpays Treasury Service Associates, Calderon Says
-----------------------------------------------------------------
TIFFANY CALDERON, on behalf of herself and all others similarly
situated, Plaintiff v. WELLS FARGO BANK, N.A. and DOES 1 through
10, inclusive, Defendant, Case No. 2:21-cv-04430 (C.D. Cal., May
27, 2021) is a class action against the Defendant for violations of
the California Labor Code, the California's Unfair Competition Act,
and the Fair Labor Standards Act including failure to reimburse
business expenses, failure to pay overtime wages, failure to
provide or pay for meal breaks, failure to provide or pay for rest
breaks, failure to pay all wages owed every pay period, and failure
to furnish timely and accurate wage statements.
The Plaintiff was employed by the Defendant as a treasury service
associate in Los Angeles County, California.
Wells Fargo Bank, N.A. is an American multinational financial
services company, with corporate headquarters located in San
Francisco, California. [BN]
The Plaintiff is represented by:
Joshua H. Haffner, Esq.
Drew R. Ferrandini, Esq.
HAFFNER LAW PC
445 South Figueroa Street, Suite 2625
Los Angeles, CA 90071
Telephone: (213) 514-5681
Facsimile: (213) 514-5682
E-mail: jhh@haffnerlawyers.com
df@haffnerlawyers.com
*********
S U B S C R I P T I O N I N F O R M A T I O N
Class Action Reporter is a daily newsletter, co-published by
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Toledo, Christopher G. Patalinghug, and Peter A. Chapman, Editors.
Copyright 2021. All rights reserved. ISSN 1525-2272.
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