/raid1/www/Hosts/bankrupt/CAR_Public/210616.mbx
C L A S S A C T I O N R E P O R T E R
Wednesday, June 16, 2021, Vol. 23, No. 114
Headlines
1STDIBS.COM INC: Davis Files ADA Suit in S.D. New York
3M COMPANY: Bennett Sues Over Exposure to Toxic Film-Forming Foams
3M COMPANY: Burns Sues Over Complications From AFFF Products
3M COMPANY: Crozier Sues Over Exposure to Toxic Foams & Chemicals
3M COMPANY: Devine Sues Over Exposure to Highly Toxic AFFF
3M COMPANY: Endy Sues Over Exposure to Toxic Film-Forming Foams
AAA CAFE: Lopez Sues Over Unpaid Wages for Restaurant Employees
AFTERPAY LTD: Faces Class Action Over Unfair Marketing Practices
AFTERPAY US: Young Files ADA Suit in S.D. New York
AKAZOO SA: September 7 Settlement Fairness Hearing Set
ALASKA: Faces Class Action Over Prisoners' Phone-Call Charges
ALIGN TECHNOLOGY: SDC's Motion Transferred to M.D. Tennessee
AMERICAN COLONIAL: K&L Gates Attorneys Discuss Class Action
ARRAY TECHNOLOGIES: Labaton Sucharow Reminds of July 13 Deadline
ARTPIX LLC: Davis Files ADA Suit in S.D. New York
AUTOCAR LLC: Terminated Non-Hispanic Workers, McNair Suit Claims
BANK OF AMERICA: McClure Suit Transferred to S.D. California
BANK OF AMERICA: Willrich Suit Transferred to S.D. California
BAYER CROPSCIENCE: Antitrust Suit Moved From S.D. Ill. to E.D. Mo.
BAYER CROPSCIENCE: Duncan Suit Moved From S.D. Ill. to E.D. Mo.
BAYER CROPSCIENCE: Faces Suit Over Crop Chemicals Market Monopoly
BAYER CROPSCIENCE: Lex Suit Moved From S.D. Ill. to E.D. Mo.
BAYER CROPSCIENCE: Swanson Suit Moved From S.D. Ill. to E.D. Mo.
BAYER CROPSCIENCE: Vienna Eqho Farms Suit Transferred to E.D. Mo.
BBVA USA: California Court Allows Arbitration in Hill Class Suit
BENJAMIN F. EDWARDS: Young Files ADA Suit in S.D. New York
BENNETEK ECOMMERCE: Angeles Files ADA Suit in S.D. New York
BOLLINGER MOTORS: Davis Files ADA Suit in S.D. New York
CARDINAL MULTI: Mendoza Sues Over Construction Workers' Unpaid OT
CARRIZO OIL: July 2 Extension to File Class Cert. Bid Sought
CELTIC SERVICES: Fails to Pay Overtime Wages, Penate Alleges
CENTRAL BUCKS: Marinello Suit Alleges Equal Pay Violations
CHARTER FOODS: Davis FLSA Suit Seeks to Certify Class of AGMs
CHIME FINANCIAL: Court Enters Final Judgment in Richards Class Suit
CLOUDERA INC: Filing of Amended Complaint Due June 24
CLOUDERA INC: Securities Class Suit in California Underway
COINBASE GLOBAL: Suspended Account Holders File Class Action
COMMONWEALTH ELECTRICAL: Underpays Inspectors, Bellinger Suit Says
CONAGRA FOODS: Final Approval of Class Deal in Briseno Reversed
CONNECTED PET: Fischler Files ADA Suit in E.D. New York
CONTINENTAL CASUALTY: Loses Bid to Dismiss Legacy Sports Class Suit
CORNERSTONE BUILDING: Ramirez Wage-and-Hour Suit Goes to E.D. Cal.
COSTCO WHOLESALE: Appeal on Ruling to Remand Nevarez Suit Pending
COSTCO WHOLESALE: Bid to Dismiss Soulek Putative Class Suit Pending
COSTCO WHOLESALE: Bid to Nix Edwards Labor Suit Pending
COSTCO WHOLESALE: Consolidated Opioid-Related Litigation Underway
COSTCO WHOLESALE: Dismissal of Johnson-Chen Suit Under Appeal
DELL TECH: Discovery Ongoing in Class V Transaction Related Suit
DELL TECH: Pivotal Software Acquisition Related Suit Underway
DELL TECHNOLOGIES: Faces Suit Over Laptop Upgradeability Issues
DHL EXPRESS: Martin Sues Over Misleading Delivery Charges
DILLY KEY: Acosta Suit Claims Unpaid Wages for Restaurant Staff
ECWID INC: Pascual Files ADA Suit in S.D. New York
EDIE PARKER: Pascual Files ADA Suit in S.D. New York
ENTERPRISE RENT-A-CAR: Fails to Pay Proper Wages, Elias Alleges
FIGURE TECHNOLOGIES: Pascual Files ADA Suit in S.D. New York
FLORIDA HEALTH: 2nd Amended Doyle Suit Dismissed Without Prejudice
GENERAL MILLS: Judge Tosses Mislabeling Class Action Settlement
GENESIS FINANCIAL: Pascual Files ADA Suit in S.D. New York
GEO GROUP: Fox Rothschild Attorney Discusses Class Action
GLOBAL PLASMA: Boeing Study Cited in Federal Class Action Suit
GOOGLE LLC: Seeks Dismissal of Gift Cards Class Action Lawsuit
HANNAFORD BROS: Prinzo Wage-and-Hour Suit Goes to D. Massachusetts
HORMAN'S PICKLES: Angeles Files ADA Suit in S.D. New York
HP INC: Bid to Dismiss Mobile Emergency Housing Suit Pending
HP INC: Consolidated Gensin Class Suit Underway in Israel
HP INC: Oral Argument on Appeal in Parziale Suit Set for July 29
HP INC: Suit by Electrical Workers Pension Fund, Local 103 Ongoing
HP INC: York County Putative Class Action Underway
I.C. SYSTEM: New York Court Dismisses Teitelbaum FDCPA Class Suit
IMMUNOVANT INC: IMVT-1401 Related Putative Class Suit Underway
INTERCONTINENTAL TERMINALS: Ogden Suit Transferred to D.S.C.
IRHYTHM TECHNOLOGIES: PERSM Named Lead Plaintiff in Habelt Suit
JUUL LABS: E-Cigarette Device Causes Addiction, Mendones Alleges
JUUL LABS: Markets E-Cigarette to Youth, Ohio District Alleges
JUUL LABS: Markets E-Cigarette to Youth, Ohio School Alleges
JUUL LABS: N.Y. School District Sues Over Youth E-Cigarette Crisis
JUUL LABS: Promotes E-Cigarette to Youth, Md. School District Says
JUUL LABS: Promotes E-Cigarette to Youth, Tenn. School Claims
JUUL LABS: School District Sues Over Youth E-Cigarette Crisis
JUUL LABS: School District Sues Over Youth Health Crisis in Wis.
KATIONX CORP: Pascual Files ADA Suit in S.D. New York
KIRKLAND'S STORES: Miles Suit Seeks to Certify Classes & Subclasses
KODIAK CAKES: Angeles Files ADA Suit in S.D. New York
KOHL'S CORP: Mollett Sues Over Unpaid OT for Call Center Agents
LAWLINE: Zwerin Files ADA Suit in W.D. Washington
LEARJET INC: Wood Wins Conditional Collective Action Cert. Bid
LEONARD DIPASQUALE: FLSA Suit Seeks to Certify Exotic Dancer Class
LEVY ELECTRIC: Pascual Files ADA Suit in S.D. New York
LIBERTY INSURANCE: 11th Cir. Affirms Summary Judgment in Horn Suit
LIMETREE BAY: Boynes Sues Over Refinery's Environmental Disasters
MAPCO EXPRESS: Suit Seeks to Certify Class of Female Store Managers
MCDONALD'S CORP: BIPA Class Action Lands in Federal Court
MCKINSEY & COMPANY: Personal Injury Suit Moved to N.D. California
MDL 2389: Fund Distribution Plan in FB IPO Securities Suit Granted
MISSOURI: $113-Mil. Judgment in Hootselle v. MDOC Affirmed in Part
NAVISTAR INT'L: Court Narrows Claims in Veterans Rideshare Suit
NESTLE USA: Saldivar Sues Over Mislabeled Coffee-Mate Products
OCWEN LOAN: July 9 Extension of Class Certification Hearing Sought
OREGON: Court Denies Bid to Remand Moore v. ODOC Class Suit
OVERLAND SOLUTIONS: Parducci Seeks to Certify Class & Subclass
PACIFIC GAS: Wong Sues Over Improper Business Practices
PACIFIC MERCANTILE: SEC Filings Mislead Stockholders, Parshall Says
PELOTON INTERACTIVE: Schall Law Firm Reminds of June 28 Deadline
PINTEREST INC: Pomerantz Law Reminds of June 28 Deadline
PROVENTION BIO: Robbins Geller Reminds of July 20 Deadline
PURECYCLE TECH: Schall Law Firm Reminds of July 12 Deadline
PURELY ELIZABETH: Faces Consumer Class Action in California
REV GROUP: Settlements in 2017 IPO Related Suits Awaits Initial OK
ROMEO'S PIZZA: August 11 Extension to File Class Cert. Bid Sought
SAN DIEGO, CA: Montoya et al., Lose Class Certification Bid
SCHNEIDER NATIONAL: Naler Labor Suit Removed to C.D. California
SCHUYLKILL COUNTY, PA: Faces Class Action Over Prothonotary Fees
SEALED AIR: New York Court Narrows Claims in Funds Securities Suit
SERCO INC: Settles 401(k) Plan Fee Class Action for $1.2 Million
SILVER BOURBON: Kikuchi FLSA-LWPA Suit Dismissed Without Prejudice
SKILLZ INC: Schall Law Firm Reminds of July 7 Deadline
STAMPS.COM: Agreement in Principle Reached in Karinski Class Suit
SYNGENTA CORPORATION: Budde Suit Moved From D. Kan. to E.D. Mo.
TURQUOISE HILL: Bid for Protective Order in Securities Suit Denied
UBIQUITI INC: Howard G. Smith Reminds of July 19 Deadline
UBIQUITI INC: Schall Law Firm Reminds of July 19 Deadline
UNITED PARCEL: Judge Hands Partial Victory in Labor Class Suit
UNITED STATES: Morrison & Foerster Attorney Discusses IGRA Case
VERVE INC: Angeles Files ADA Suit in S.D. New York
VIRGIN GALACTIC: Frank R. Cruz Reminds of July 27 Deadline
VIRGIN GALACTIC: Glancy Prongay Reminds of July 27 Deadline
WAKEFIELD & ASSOCIATES: Nasta Files FDCPA Suit in W.D.N.C.
WALMART INC: Opioids Related Class Suits Underway
WASHINGTON DC: Seeks Filing Extension for Class Cert. Bid Response
XTO ENERGY: Court Denies Bid to Dismiss Brusamonti Class Suit
ZALE DELAWARE: Kaint Files Suit in Cal. Super. Ct.
ZOOM VIDEO: Kane ADA Suit Transferred to N.D. California
ZUMIEZ INC: Mediation in Herrera Suit Set for June 23
ZUORA INC: Continues to Defend Consolidated IPO Related Class Suit
ZUORA INC: Discovery Ongoing in California Putative Class Suit
[*] Ballard Spahr Attorney Discusses New CFPB Arbitration Rule
[*] Butler Snow Attorney Discusses Class Rep Incentive Award
[*] Shook, Hardy & Bacon Attorneys Discuss Class Action Report
*********
1STDIBS.COM INC: Davis Files ADA Suit in S.D. New York
------------------------------------------------------
A class action lawsuit has been filed against 1stdibs.com, Inc. The
case is styled as Kevin Davis, on behalf of himself and all others
similarly situated v. 1stdibs.com, Inc., Case No. 1:21-cv-05131-JMF
(S.D.N.Y., June 10, 2021).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
1stDibs -- https://www.1stdibs.com/ -- is an e-commerce company. It
has an online marketplace, which sells luxury items such as
high-end furniture for interior design, fine art and jewelry.[BN]
The Plaintiff is represented by:
Yitzchak Zelman, Esq.
MARCUS & ZELMAN LLC
701 Cookman Avenue, Suite 300
Asbury Park, NJ 07712
Phone: (845) 367-7146
Fax: (732) 298-6256
Email: yzelman@marcuszelman.com
3M COMPANY: Bennett Sues Over Exposure to Toxic Film-Forming Foams
------------------------------------------------------------------
James G. Bennett, and those similarly situated v. 3M COMPANY (f/k/a
Minnesota Mining and Manufacturing Company); AGC 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.), Case No. 2:21-cv-01729-RMG (D.S.C., June 10,
2021), is brought for damages for personal injury resulting from
exposure to aqueous film-forming foams ("AFFF") containing the
toxic chemicals collectively known as per and polyfluoroalkyl
substances ("PFAS"). PFAS includes, but is not limited to,
perfluorooctanoic acid ("PFOA") and perfluorooctane sulfonic acid
("PFOS") and related chemicals including those that degrade to PFOA
and/or PFOS.
According to the complaint, the Defendants collectively designed,
marketed, developed, manufactured, distributed, released, trained
users, produced instructional materials, promoted, sold, and/or
otherwise released into the stream of commerce AFFF with knowledge
that it contained highly toxic and bio persistent PFASs, which
would expose end users of the product to the risks associated with
PFAS. Further, the Defendants designed, marketed, developed,
manufactured, distributed, released, trained users, produced
instructional materials, promoted, sold and/or otherwise handled
and/or used underlying chemicals and/or products added to AFFF
which contained PFAS for use in firefighting.
PFAS binds to proteins in the blood of humans exposed to the
material and remains and persists over long periods of time. Due to
their unique chemical structure, PFAS accumulates in the blood and
body of exposed individuals. PFAS are highly toxic and carcinogenic
chemicals. The Defendants knew, or should have known, that PFAS
remain in the human body while presenting significant health risks
to humans.
The Defendants' PFAS-containing AFFF products were used by the
Plaintiff in their intended manner, without significant change in
the products' condition. The Plaintiff was unaware of the dangerous
properties of the Defendants' AFFF products and relied on the
Defendants' instructions as to the proper handling of the products.
The Plaintiff regularly used, and was thereby directly exposed to,
AFFF in training and to extinguish fires during his working career
as a military and/or civilian firefighter and was diagnosed with
prostatic cancer as a result of exposure to Defendants' AFFF
products, says the complaint.
The Defendants are designers, marketers, developers, manufacturers,
distributors, releasers, instructors, promotors and sellers of
PFAS-containing AFFF products or underlying PFAS containing
chemicals used in AFFF production.[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
Phone: 205-328-9200
Facsimile: 205-328-9456
- and -
J. Edward Bell, Esq.
Gabrielle Anna Sulpizio, Esq.
BELL LEGAL GROUP
219 Ridge Street
Georgetown, SC 25442
Phone: 843-546-2408
Facsimile: 843-546-9604
3M COMPANY: Burns Sues Over Complications From AFFF Products
------------------------------------------------------------
MICHAEL BURNS, 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-01719-RMG
(D.S.C., June 9, 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
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.
As a result of alleged exposure to the Defendants' AFFF products,
the Plaintiff was diagnosed with prostate cancer.
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: Crozier Sues Over Exposure to Toxic Foams & Chemicals
-----------------------------------------------------------------
Robert Douglas Crozier, Sr., and those similarly situated v. 3M
COMPANY (f/k/a Minnesota Mining and Manufacturing Company); AGC
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.), Case No. 2:21-cv-01730-RMG
(D.S.C., June 10, 2021), is brought for damages for personal injury
resulting from exposure to aqueous film-forming foams ("AFFF")
containing the toxic chemicals collectively known as per and
polyfluoroalkyl substances ("PFAS"). PFAS includes, but is not
limited to, perfluorooctanoic acid ("PFOA") and perfluorooctane
sulfonic acid ("PFOS") and related chemicals including those that
degrade to PFOA and/or PFOS.
According to the complaint, the Defendants collectively designed,
marketed, developed, manufactured, distributed, released, trained
users, produced instructional materials, promoted, sold, and/or
otherwise released into the stream of commerce AFFF with knowledge
that it contained highly toxic and bio persistent PFASs, which
would expose end users of the product to the risks associated with
PFAS. Further, the Defendants designed, marketed, developed,
manufactured, distributed, released, trained users, produced
instructional materials, promoted, sold and/or otherwise handled
and/or used underlying chemicals and/or products added to AFFF
which contained PFAS for use in firefighting.
PFAS binds to proteins in the blood of humans exposed to the
material and remains and persists over long periods of time. Due to
their unique chemical structure, PFAS accumulates in the blood and
body of exposed individuals. PFAS are highly toxic and carcinogenic
chemicals. The Defendants knew, or should have known, that PFAS
remain in the human body while presenting significant health risks
to humans.
The Defendants' PFAS-containing AFFF products were used by the
Plaintiff in their intended manner, without significant change in
the products' condition. The Plaintiff was unaware of the dangerous
properties of the Defendants' AFFF products and relied on the
Defendants' instructions as to the proper handling of the products.
The Plaintiff regularly used, and was thereby directly exposed to,
AFFF in training and to extinguish fires during his working career
as a military and/or civilian firefighter and was diagnosed with
prostatic cancer as a result of exposure to Defendants' AFFF
products, says the complaint.
The Defendants are designers, marketers, developers, manufacturers,
distributors, releasers, instructors, promotors and sellers of
PFAS-containing AFFF products or underlying PFAS containing
chemicals used in AFFF production.[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
Phone: 205-328-9200
Facsimile: 205-328-9456
- and -
J. Edward Bell, Esq.
Gabrielle Anna Sulpizio, Esq.
BELL LEGAL GROUP
219 Ridge Street
Georgetown, SC 25442
Phone: 843-546-2408
Facsimile: 843-546-9604
3M COMPANY: Devine Sues Over Exposure to Highly Toxic AFFF
----------------------------------------------------------
Terence Timothy Devine, and those similarly situated v. 3M COMPANY
(f/k/a Minnesota Mining and Manufacturing Company); AGC 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.), Case No. 2:21-cv-01731-RMG
(D.S.C., June 10, 2021), is brought for damages for personal injury
resulting from exposure to aqueous film-forming foams ("AFFF")
containing the toxic chemicals collectively known as per and
polyfluoroalkyl substances ("PFAS"). PFAS includes, but is not
limited to, perfluorooctanoic acid ("PFOA") and perfluorooctane
sulfonic acid ("PFOS") and related chemicals including those that
degrade to PFOA and/or PFOS.
According to the complaint, the Defendants collectively designed,
marketed, developed, manufactured, distributed, released, trained
users, produced instructional materials, promoted, sold, and/or
otherwise released into the stream of commerce AFFF with knowledge
that it contained highly toxic and bio persistent PFASs, which
would expose end users of the product to the risks associated with
PFAS. Further, the Defendants designed, marketed, developed,
manufactured, distributed, released, trained users, produced
instructional materials, promoted, sold and/or otherwise handled
and/or used underlying chemicals and/or products added to AFFF
which contained PFAS for use in firefighting.
PFAS binds to proteins in the blood of humans exposed to the
material and remains and persists over long periods of time. Due to
their unique chemical structure, PFAS accumulates in the blood and
body of exposed individuals. PFAS are highly toxic and carcinogenic
chemicals. The Defendants knew, or should have known, that PFAS
remain in the human body while presenting significant health risks
to humans.
The Defendants' PFAS-containing AFFF products were used by the
Plaintiff in their intended manner, without significant change in
the products' condition. The Plaintiff was unaware of the dangerous
properties of the Defendants' AFFF products and relied on the
Defendants' instructions as to the proper handling of the products.
The Plaintiff regularly used, and was thereby directly exposed to,
AFFF in training and to extinguish fires during his working career
as a military and/or civilian firefighter and was diagnosed with
prostatic cancer as a result of exposure to Defendants' AFFF
products, says the complaint.
The Defendants are designers, marketers, developers, manufacturers,
distributors, releasers, instructors, promotors and sellers of
PFAS-containing AFFF products or underlying PFAS containing
chemicals used in AFFF production.[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
Phone: 205-328-9200
Facsimile: 205-328-9456
- and -
J. Edward Bell, Esq.
Gabrielle Anna Sulpizio, Esq.
BELL LEGAL GROUP
219 Ridge Street
Georgetown, SC 25442
Phone: 843-546-2408
Facsimile: 843-546-9604
3M COMPANY: Endy Sues Over Exposure to Toxic Film-Forming Foams
---------------------------------------------------------------
Theodore Edward Endy, and those similarly situated v. 3M COMPANY
(f/k/a Minnesota Mining and Manufacturing Company); AGC 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.), Case No. 2:21-cv-01732-RMG
(D.S.C., June 10, 2021), is brought for damages for personal injury
resulting from exposure to aqueous film-forming foams ("AFFF")
containing the toxic chemicals collectively known as per and
polyfluoroalkyl substances ("PFAS"). PFAS includes, but is not
limited to, perfluorooctanoic acid ("PFOA") and perfluorooctane
sulfonic acid ("PFOS") and related chemicals including those that
degrade to PFOA and/or PFOS.
According to the complaint, the Defendants collectively designed,
marketed, developed, manufactured, distributed, released, trained
users, produced instructional materials, promoted, sold, and/or
otherwise released into the stream of commerce AFFF with knowledge
that it contained highly toxic and bio persistent PFASs, which
would expose end users of the product to the risks associated with
PFAS. Further, the Defendants designed, marketed, developed,
manufactured, distributed, released, trained users, produced
instructional materials, promoted, sold and/or otherwise handled
and/or used underlying chemicals and/or products added to AFFF
which contained PFAS for use in firefighting.
PFAS binds to proteins in the blood of humans exposed to the
material and remains and persists over long periods of time. Due to
their unique chemical structure, PFAS accumulates in the blood and
body of exposed individuals. PFAS are highly toxic and carcinogenic
chemicals. The Defendants knew, or should have known, that PFAS
remain in the human body while presenting significant health risks
to humans.
The Defendants' PFAS-containing AFFF products were used by the
Plaintiff in their intended manner, without significant change in
the products' condition. The Plaintiff was unaware of the dangerous
properties of the Defendants' AFFF products and relied on the
Defendants' instructions as to the proper handling of the products.
The Plaintiff regularly used, and was thereby directly exposed to,
AFFF in training and to extinguish fires during his working career
as a military and/or civilian firefighter and was diagnosed with
prostatic cancer as a result of exposure to Defendants' AFFF
products, says the complaint.
The Defendants are designers, marketers, developers, manufacturers,
distributors, releasers, instructors, promotors and sellers of
PFAS-containing AFFF products or underlying PFAS containing
chemicals used in AFFF production.[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
Phone: 205-328-9200
Facsimile: 205-328-9456
- and -
J. Edward Bell, Esq.
Gabrielle Anna Sulpizio, Esq.
BELL LEGAL GROUP
219 Ridge Street
Georgetown, SC 25442
Phone: 843-546-2408
Facsimile: 843-546-9604
AAA CAFE: Lopez Sues Over Unpaid Wages for Restaurant Employees
---------------------------------------------------------------
JUAN HERNANDEZ LOPEZ, individually and on behalf of all others
similarly situated, Plaintiff v. AAA CAFE CORP. D/B/A RETRO PIZZA
CAFE, DAISY AVRAAMIDES, and LEONIDAS AVRAAMIDES, Defendants, Case
No. 1:21-cv-03245 (E.D.N.Y., June 8, 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 appropriate
minimum wages, failure to pay overtime, failure to comply with
notice and recordkeeping requirements, and failure to provide
accurate wage statements.
Mr. Lopez was employed by the Defendants as a food prep and
delivery person at Retro Pizza Cafe in New York from July 2019
until October 2020.
AAA Cafe Corp., doing business as Retro Pizza Cafe, is a restaurant
owner and operator located in New York. [BN]
The Plaintiff is represented by:
Roman Avshalumov, Esq.
HELEN F. DALTON & ASSOCIATES, P.C.
80-02 Kew Gardens Road, Suite 601
Kew Gardens, NY 11415
Telephone: (718) 263-9591
AFTERPAY LTD: Faces Class Action Over Unfair Marketing Practices
----------------------------------------------------------------
Elizabeth Knight, writing for Brisbane Times, reports that a legal
class action case just filed against Afterpay in California puts
the spotlight on the often ignored fact that the cost to the
customer of using buy now, pay later (BNPL) can be more expensive
than the late fees imposed by the operators.
The legal action itself may be frivolous, as are many of the class
actions that are a feature of the US legal system, but it brings
the spectre of regulation back on the radar for Afterpay, which is
hoping to hit paydirt in the US.
The case being brought by plaintiff lawyers in the US is about lack
of disclosure and misrepresentation of Afterpay's marketing to its
customers. The most interesting aspect to the lawsuit is the
contention that Afterpay has deceived its US users through
misrepresentations and omissions in its marketing material about
fees that can be charged by the banks.
While Afterpay correctly tells customers that it can charge late
fees of up to 25 per cent of the purchase price of the product, the
lawyers for the plaintiff argue that no warning is given about
banks charging overdraft fees and insufficient funds fees.
Afterpay says that's not its problem because it tells customers
that they need to have sufficient funds in their accounts to meet
the instalment payments. Indeed Afterpay goes further, suggesting
that if a customer doesn't have enough money in their accounts to
make the payments their gripe should be with the bank.
Afterpay contends that it is not its responsibility to tell
customers about the fees charged by another organisation.
This isn't just an issue confined to the US, it's also a feature in
Australia and other jurisdictions and just how large these fees are
depend on the nature of the account. In Australia, customers that
sign up for direct debit on their accounts will be charged for some
form of overdraft and potentially with interest. And even if the
bank doesn't allow the customer's account to go into overdraft it
can still impose a fee for insufficient funds.
If this happens the customer gets slugged twice.
The US legal claim characterises Afterpay's business model as
targeting the young and the poor -- groups that are more
financially strapped and "struggling to make ends meet".
"In its rush to tout itself as convenient, simple, automatic, and
free, Afterpay does not disclose that overdraft and NSF fees are a
likely and devastating consequence of the use of its service. No
reasonable consumer would run this risk,′ the class action
complaint reads.
If the bank allows customers to go into overdraft or the customer
pays an BNPL provider like Afterpay by using a credit card the
transaction takes on more of the characteristics of credit.
(Indeed this has been an argument that has been pushed by the
Australian banks for a few years.)
But to date, regulators have not seen it fit to include these
instalment payments as credit under the National Consumer Credit
Protection Act and don't need to comply with responsible lending
obligations.
A deep dive into the BNPL sector by the Australian Securities and
Investments Commission last year found that a worrying 20 per cent
of users said they had gone without essentials to meet their
repayments, while another 15 per cent said they had taken out an
additional loan.
About a third of both groups had made six or more BNPL purchases in
the prior six months. Between 30 per cent and 40 per cent held
another small or medium-sized credit contract. Over half had missed
a BNPL payment. And half were aged between 18 and 29.
And Afterpay doesn't know how many other BNPL accounts its
customers use.
Even if the class action in California is successful it won't be a
game changer for Afterpay or the BNPL sector. But it may serve to
provide additional air to those that have long argued that Afterpay
and its ilk need to have greater regulation. [GN]
AFTERPAY US: Young Files ADA Suit in S.D. New York
--------------------------------------------------
A class action lawsuit has been filed against Afterpay US, Inc. The
case is styled as Lawrence Young, on behalf of himself and all
other persons similarly situated v. Afterpay US, Inc., Case No.
1:21-cv-05183 (S.D.N.Y., June 10, 2021).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Afterpay -- https://www.afterpay.com/ -- provides payment services.
The company offers an installment payment service that is free for
customers who pay on time.[BN]
The Plaintiff is represented by:
Michael A. LaBollita, Esq.
GOTTLIEB & ASSOCIATES
150 E. 18th Street, Suite Phr
New York, NY 10003
Phone: (212) 228-9795
Email: michael@gottlieb.legal
AKAZOO SA: September 7 Settlement Fairness Hearing Set
------------------------------------------------------
The Rosen Law Firm, P.A. and Glancy Prongay & Murray LLP on June 7
disclosed that the United States District Court for the Eastern
District of New York has approved the following announcement of a
proposed class action settlement that would benefit purchasers of
securities of Akazoo S.A. and holders of common stock of Modern
Media Acquisition Corp. (NASDAQ: SONG):
SUMMARY NOTICE OF PENDENCY AND PROPOSED PARTIAL SETTLEMENT OF
SECURITIES CLASS ACTION
TO:
All persons and entities who or which: (1) purchased or otherwise
acquired the publicly traded securities of Akazoo S.A. ("Akazoo")
between January 24, 2019 and May 21, 2020, both dates inclusive,
including but not limited to, those who purchased or acquired
Akazoo securities pursuant to the private placement offering
agreement, and were damaged thereby; (2) held common stock of
Modern Media Acquisition Corp. ("MMAC") as of August 9, 2019,
eligible to vote at MMAC's August 28, 2019 special meeting, and
were damaged thereby; and/or (3) purchased or otherwise acquired
Akazoo common stock pursuant or traceable to the company's
registration statement and prospectus issued in connection with the
September 2019 merger of MMAC and Akazoo Limited, and were damaged
thereby (the "Settlement Class").
THIS NOTICE WAS AUTHORIZED BY A COURT. IT IS NOT A LAWYER
SOLICITATION. PLEASE READ THIS NOTICE CAREFULLY AND IN ITS
ENTIRETY.
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 Eastern District of New York, that the above-captioned
litigation (the "Federal Action") has been preliminarily certified
as a class action on behalf of the Settlement Class, except for
certain persons and entities who are excluded from the Settlement
Class by definition as set forth in the full Notice of Pendency and
Proposed Partial Settlement of Class Action (the "Long Notice").
YOU ARE ALSO NOTIFIED that Lead Plaintiffs in the Federal Action,
along with the Plaintiffs in a related action pending in the
Superior Court for the State of Georgia, Fulton County, styled
Pareja, et al., v. Apostolos N. Zervos, et al., Case No.
2020CV337418 (the "State Action" and together with the Federal
Action, the "Class Actions"), have reached a proposed partial
settlement of the Class Actions for $4,900,000, plus any Additional
Settlement Amount that may be recovered (the "Settlement"). If the
Settlement is approved, it will resolve all claims in the Class
Actions with respect to the Settling Defendants.
A hearing will be held on September 7, 2021 at 10:00 a.m., before
the Honorable Brian M. Cogan at the United States District Court
for the Eastern District of New York, 225 Cadman Plaza East,
Brooklyn, NY 11201, to determine: (i) whether the proposed partial
Settlement should be approved as fair, reasonable, and adequate;
(ii) whether the Federal Action should be dismissed with prejudice
against Settling Defendants, and the Releases specified and
described in the Stipulation and Agreement of Partial Settlement,
dated April 22, 2021 ("Stipulation") and in the Long Notice should
be granted; (iii) whether the proposed Plan of Allocation should be
approved as fair and reasonable; and (iv) whether Class Counsel's
application for an award of attorneys' fees and reimbursement of
Litigation Expenses should be approved.
If you are a member of the Settlement Class, your rights will be
affected by the Settlement, and you may be entitled to share in the
Settlement Fund. The Long Notice and Proof of Claim and Release
Form ("Claim Form"), as well as a copy of the Stipulation (which,
among other things, contains definitions for the defined terms used
in this Summary Notice), can be downloaded from the website
maintained by the Claims Administrator, Strategic Claims Services,
www.strategicclaims.net. You may also obtain copies of the Long
Notice and Claim Form by contacting the Claims Administrator at
Akazoo S.A. Securities Litigation, c/o Strategic Claims Services,
P.O. Box 230, 600 N. Jackson St., Ste. 205, Media, PA 19063, Tel:
(866) 274-4004; Fax: (610) 565-7985; Email:
info@strategicclaims.net.
If you are a member of the Settlement Class, in order to be
eligible to receive a payment under the proposed Settlement, you
must submit a Claim Form postmarked or electronically submitted no
later than September 23, 2021. If you are a Settlement Class Member
and do not submit a proper Claim Form, you will not be eligible to
share in the distribution of the net proceeds of the Settlement,
but you will nevertheless be bound by any judgments or orders
entered by the Court in the Federal Action.
If you are a member of the Settlement Class and wish to exclude
yourself from the Settlement Class, you must submit a request for
exclusion such that it is received no later than August 17, 2021,
in accordance with the instructions set forth in the Long Notice.
If you properly exclude yourself from the Settlement Class, you
will not be bound by any judgments or orders entered by the Court
in the Federal Action and you will not be eligible to share in the
proceeds of the Settlement.
Any objections to the proposed Settlement, the proposed Plan of
Allocation, or Class Counsel's motion for attorneys' fees and
reimbursement of Litigation Expenses, must be filed with the Court
and delivered to Class Counsel and Defense Counsel such that they
are received no later than August 17, 2021, in accordance with the
instructions set forth in the Long Notice. Please do not contact
the Court, the Clerk's office, Akazoo, or its counsel regarding
this notice. All questions about this notice, the proposed
Settlement, or your eligibility to participate in the Settlement
should be directed to Class Counsel or the Claims Administrator.
Requests for the Long Notice and Claim Form should be made to:
Akazoo S.A.Securities Litigation
c/o Strategic Claims Services
P.O. Box 230
600 N. Jackson St., Ste. 205
Media, PA 19063
Tel: 866-274-4004
www.strategicclaims.net
Inquiries, other than requests for the Long Notice and Claim Form,
should be made to Class Counsel:
THE ROSEN LAW FIRM, P.A.
Phillip Kim, Esq.
275 Madison Avenue, 40th Floor
New York, NY 10016
Tel: (212) 686-1060
or
GLANCY PRONGAY & MURRAY LLP
Casey Sadler, Esq.
1925 Century Park East, Suite 2100
Los Angeles, California 90067
Tel: (888) 773-9224
By Order of the Court [GN]
ALASKA: Faces Class Action Over Prisoners' Phone-Call Charges
-------------------------------------------------------------
Michelle Theriault Boots, writing for Anchorage Daily News, reports
that an Anchorage activist and her incarcerated husband have filed
a class-action lawsuit against the state challenging what they say
are unaffordable, unconstitutional paid prison phone calls.
The lawsuit, filed in Anchorage Superior Court on June 1, asserts
that Alaska prisoners have a right to phone access through the
state's constitution, which has been interpreted by courts to
afford prisoners rehabilitation services.
"However, if you make it very expensive for prisoners to call their
loved ones, this right is undermined," the lawsuit, filed by
attorneys with the Northern Justice Project in Anchorage says.
Plaintiffs Terria and Karl Vandenhuerk's lawsuit is filed on behalf
of both people incarcerated in Alaska jails and prisons and their
loved ones on the outside -- the people who pay for calls through
Securus, the Texas-based, for-profit corporation that controls all
phone communication between prisoners and the outside world.
"If they can't get a hold of their family or their family can't pay
for it -- how do they prepare to be able to re-enter society?" said
Terria Vandenhuerk, an Anchorage restorative justice activist whose
husband is incarcerated at Wildwood Correctional Center in Kenai.
The Alaska Department of Corrections referred questions to the
Alaska Department of Law. The Department of Law has not yet
responded to the lawsuit.
The lawsuit also alleges the state is also violating a decades-old
final settlement in Cleary vs. State of Alaska, a landmark
prisoners' rights case.
The Cleary settlement promised that the state would never charge
more than 50 cents for local calls, said Nick Feronti, an attorney
with the Northern Justice Project. These days, local calls are $1
and long-distance calls can be up to $5 for 15 minutes, with taxes
and fees attached.
Unlike in other states, in-person visits to prisons are less of an
option for many people in Alaska, Feronti said. Phone calls are
even more important.
"Visitation is really hard in Alaska," said Feronti. "Even in the
best of circumstances. Think of anyone off the road system, they
have to take a plane flight and a long journey to see a loved one.
It's different than almost every state."
Expensive phone calls are a problem because inmates without the
ability to connect to people outside prison are more likely to fall
back into crime when they are released, said Vandenhuerk.
Vandenhuerk, whose husband Karl is serving time for burglary and
other convictions at Wildwood Correctional Center in Kenai, has
spent thousands of dollars on their conversations. Their
connection, and those conversations, helped him move away from
prison gang life and into a substance-abuse rehab program. He hopes
to become a barber when he gets out.
Vandenhuerk's son Christopher Seaman was murdered in 2015. Her
desire for affordable phone calls for incarcerated people extends
to her son's killer, she said.
"I want nothing more than the man who killed my son to get the
services and rehabilitation he needs,' she said. "I want him to be
able to talk to his mom, sister and children. I want him to be
released as a whole transformed individual." [GN]
ALIGN TECHNOLOGY: SDC's Motion Transferred to M.D. Tennessee
------------------------------------------------------------
In the case, SmileDirectClub LLC, Petitioner v. Align Technology
Incorporated, Respondent, Case No. MC-21-00021-PHX-DLR (D. Ariz.),
Judge Douglas R. Rayes of the U.S. District Court for the District
of Arizona granted Align's request to transfer motion to the U.S.
District Court for the Middle District of Tennessee.
Petitioner SmileDirectClub LLC ("SDC") currently is a defendant in
a nationwide class action lawsuit pending in the U.S. District
Court for the Middle District of Tennessee, Ciccio v.
SmileDirectClub, LLC, et al., Case No. 3:19-845. As part of that
litigation, SDC served a subpoena duces tecum on Respondent Align,
who is not a party to the Tennessee case.
SDC's subpoena seeks production of 15 categories of documents.
Align objected to the subpoena and refused to produce any
documents. Consequently, on April 15, 2021, SDC filed a motion
with the Court seeking enforcement of its subpoena. SDC filed its
motion with the Court because Align is headquartered in Tempe,
Arizona.
In response, Align both argues the merits of the subpoena and asks
that the Court transfer the matter to the Middle District of
Tennessee so that the court overseeing the underlying lawsuit can
determine whether the subpoena seeks relevant and proportional
information. In reply, SDC takes no position regarding Align's
Motion to Transfer.
Judge Rayes states that Federal Rule of Civil Procedure 45(f)
allows the Court to transfer a motion under this rule to the
issuing court if the person subject to the subpoena consents or if
the court finds exceptional circumstances. In the case, the entity
subject to the subpoena -- Align -- not only consents to such a
transfer but has affirmatively requested it. The Judge therefore
may transfer the motion, and in his discretion finds such a
transfer warranted. Indeed, the issuing court overseeing the
underlying litigation is in a superior position to assess the
relevance and proportionality of SDC's subpoena.
Accordingly, Judge Rayes granted Align's motion to transfer. The
matter is transferred to the U.S. District Court for the Middle
District of Tennessee.
A full-text copy of the Court's June 1, 2021 Order is available at
https://tinyurl.com/45c38aec from Leagle.com.
AMERICAN COLONIAL: K&L Gates Attorneys Discuss Class Action
-----------------------------------------------------------
Cameron Abbott, Esq., and Jacqueline Patishman, Esq., of K&L Gates
LLP, in an article for Lexology, report that recently the law firm
posted about a ransomware attack on the American Colonial Pipeline
Company. The Company has been hit with a class action alleging that
a range of US businesses and consumers suffered loss as a result of
Colonial Pipeline's decision to cut its supply of fuel until the
ransomware attack was resolved. Meanwhile, the Company is still not
entirely back on track – Colonial's main website is still
offline.
The class action is open to all fuel consumers who were impacted by
the closure of the pipeline across the east coast which includes a
range of businesses that rely on fuel (such as airlines and
trucking companies) as well as ordinary retail consumers.
Reuters reported that 88% of petrol stations were out of fuel in
Washington, 65% in North Carolina, while in South Carolina, Georgia
and Virginia, just under 50% were without fuel.
One of the points that will be considered in the case is whether
Colonial actually needed to close the pipeline -- it's been
suggested that the pipeline could have been left open and that the
Company could have reversed billed its customers based on estimated
usage. The ransomware hack was one of the most disruptive attacks
on critical infrastructure that the US has ever experienced and it
will be hard to determine whether Colonial's decision to 'turn off'
its pipeline was necessary to contain the breach or not.
Colonial has already paid a $US4.4 million (~$5.7m AUD) ransom to
the hacking group DarkSide and if this action is successful, it
could stand to lose hundreds of millions more. Flow on effects of
attacks on critical infrastructure clearly have the potential to
seriously damage businesses and the economy generally. Even the
cost of defending litigation makes the cost of a security breach
much higher than merely paying a ransom. [GN]
ARRAY TECHNOLOGIES: Labaton Sucharow Reminds of July 13 Deadline
----------------------------------------------------------------
Labaton Sucharow LLP ("Labaton Sucharow") on June 7 disclosed that
on May 14, 2021, it filed a securities class action lawsuit,
captioned Plymouth County Retirement Association v. Array
Technologies, Inc., No. 21-cv-2396 (S.D.N.Y.) (the "Action"), on
behalf of its client the Plymouth County Retirement Association
("PCRA") against Array Technologies, Inc. (NASDAQ:ARRY) ("Array" or
the 'Company') and other related parties (collectively,
"Defendants").
The Action asserts claims under Sections 10(b) and 20(a) of the
Securities Exchange Act of 1934 (the "Exchange Act") and SEC Rule
10b-5 promulgated thereunder on behalf of all persons and entities
who purchased or otherwise acquired Array securities between
October 14, 2020 and May 11, 2021, inclusive (the 'Class Period'),
who were damaged thereby. The Exchange Act claims are brought
against Array and certain of the Company's officers.
Separately, the Action asserts claims under Sections 11, 12(a)(2),
and 15 of the Securities Act of 1933 (the "Securities Act") on
behalf of all persons and entities who purchased or otherwise
acquired Array common stock pursuant and/or traceable to the
Company's October 2020 initial public offering, the Company's
December 2020 secondary public offering, or the Company's March
2021 secondary public offering (collectively, the "Offerings"), and
were damaged thereby.
In connection with the Offerings, Array filed registration
statements and prospectuses with the U.S. Securities and Exchange
Commission (the "Offering Materials"). The Securities Act claims
are brought against Array, investment banks that acted as
underwriters on the Offerings, and Company directors and officers
who signed the Offering Materials. ATI Investment Parent, LLC, an
Array shareholder who sold substantial amounts of Array stock
through the Offerings is also named as a defendant in connection
with the Securities Act claims.
Array is an Albuquerque, New Mexico-based manufacturer of
ground-mounting systems used in solar energy projects. The
Company's principal products are commonly referred to as
'trackers.' Trackers are designed to move solar panels throughout
the day to maintain an optimal orientation to the sun, which
significantly increases their energy production.
With respect to the Exchange Act claims, the Action alleges that,
throughout the Class Period, Defendants made false and misleading
statements because they omitted and otherwise failed to disclose
that, dating back to the first quarter of 2020, prices of certain
commodities such as steel was in the process of more than doubling,
and that Array was facing increasing freight costs. As a result of
the foregoing, the Company's positive statements about its business
and operations lacked a reasonable basis.
Similarly, with respect to the Securities Act claims, the Action
alleges that the Offering Materials contained false and misleading
statements because they omitted and otherwise failed to disclose
that, prior to the Offerings, increases in commodity and freight
costs had been negatively impacting the Company's business and
operations.
On May 11, 2021, just months after the Offerings, the truth about
these mounting costs and their negative impact on the Company's
profits was revealed. On that date, Array reported first quarter
2021 results that missed profit analysts' expectations and withdrew
its full-year 2021 outlook citing increases in steel and freight
costs. Analysts immediately cut their ratings on Array stock citing
concerns about the Company's shrinking profit margins. For example,
in a Barclays report, analysts downgraded Array stock from
'Overweight' to 'Underweight' noting concerns about volumes,
margins, and earnings power. On this news, Array's stock priced
dropped $11.49 per share, or 46.1 percent, to close at $13.46 per
share on May 12, 2021.
If you: (1) purchased or otherwise acquired Array securities during
the Class Period and were damaged thereby, or (2) purchased or
otherwise acquired Array common stock pursuant and/or traceable to
any of the Offerings and were damaged thereby, you are a member of
the 'Class' and may be able to seek appointment as Lead Plaintiff.
Lead Plaintiff motion papers must be filed with the U.S. District
Court for the Southern District of New York no later than July 13,
2021. The Lead Plaintiff is a court-appointed representative for
absent members of the Class. You do not need to seek appointment as
Lead Plaintiff to share in any Class recovery in the Action. If you
are a Class member and there is a recovery for the Class, you can
share in that recovery as an absent Class member. You may retain
counsel of your choice to represent you in the Action.
If you would like to consider serving as Lead Plaintiff or have any
questions about this lawsuit, you may contact David J. Schwartz,
Esq. of Labaton Sucharow at (800) 321-0476, or via email at
dschwartz@labaton.com.
PCRA is represented by Labaton Sucharow, which represents many of
the largest pension funds in the United States and internationally
with combined assets under management of more than $2 trillion.
Labaton Sucharow has been recognized for its excellence by the
courts and peers, and it is consistently ranked in leading industry
publications. Offices are located in New York, NY, Wilmington, DE,
and Washington, D.C. More information about Labaton Sucharow is
available at www.labaton.com. [GN]
ARTPIX LLC: Davis Files ADA Suit in S.D. New York
-------------------------------------------------
A class action lawsuit has been filed against ArtPix, LLC. The case
is styled as Kevin Davis, on behalf of himself and all others
similarly situated v. ArtPix, LLC, Case No. 1:21-cv-05132-AJN
(S.D.N.Y., June 10, 2021).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
ArtPix 3D -- https://artpix3d.com/ -- merges innovative laser
engraving technology and quality craftsmanship to transform photos
into detailed 3D crystal images.[BN]
The Plaintiff is represented by:
Yitzchak Zelman, Esq.
MARCUS & ZELMAN LLC
701 Cookman Avenue, Suite 300
Asbury Park, NJ 07712
Phone: (845) 367-7146
Fax: (732) 298-6256
Email: yzelman@marcuszelman.com
AUTOCAR LLC: Terminated Non-Hispanic Workers, McNair Suit Claims
----------------------------------------------------------------
BRANDON McNAIR, individually and on behalf of all others similarly
situated, Plaintiff v. AUTOCAR, LLC; AUTOCAR INDUSTRIES, LLC; and
BIRMINGHAM ASSEMBLY OPERATIONS, LLC, Defendants, Case No.
2:21-cv-00787-JHE (N.D. Ala., June 8, 2021) is a class action
against the Defendants for violations of Title VII of the Civil
Rights Act of 1964.
According to the complaint, the Defendants' termination and hiring
plan had disparate impact on the basis of national origin,
ancestry, ethnicity, or race. The Defendants disproportionately
favored and increased the number of employees of Hispanic national
origin, ancestry, ethnicity, and/or race and, at the same time,
disproportionately disfavored and decreased the number of
non-Hispanic and/or African American employees. During 2019, the
Defendants allegedly terminated a large number of employees at
Birmingham, Alabama and Hagerstown, Indiana locations and replaced
those employees with Hispanic employees.
Mr. McNair was hired by the Defendants on or about August 14, 2017
and was terminated on or about November 13, 2019. As a result of
the Defendants' conduct, the Plaintiff was deprived of income and
other benefits due him. The Plaintiff also suffered embarrassment,
humiliation, inconvenience, and mental distress.
Autocar, LLC is an American manufacturer of severe-duty, Class 7
and Class 8 vocational trucks, with its headquarters in Birmingham,
Alabama.
Autocar Industries, LLC is a truck manufacturer based in
Birmingham, Alabama.
Birmingham Assembly Operations, LLC is a heavy-duty truck assembly
operation business in Birmingham, Alabama. [BN]
The Plaintiff is represented by:
H. Wallace Blizzard, Esq.
WIGGINS, CHILDS, PANTAZIS, FISHER & GOLDFARB, LLC
The Kress Building
301 19th Street North
Birmingham, AL 35203
Telephone: (205) 314-0593
E-mail: wblizzard@wigginschilds.com
BANK OF AMERICA: McClure Suit Transferred to S.D. California
------------------------------------------------------------
The case styled as Lindsay McClure, on behalf of herself and all
others similarly situated v. Bank of America, N.A., Defendant;
Jennifer Yick; Third Party Plaintiff, Case No. 3:21-cv-00572, was
transferred from the U.S. District Court for the Northern District
of California, to the U.S. District Court for the Southern District
of California on June 10, 2021.
The District Court Clerk assigned Case No. 3:21-cv-01089-LAB to the
proceeding.
The nature of suit is stated as Negotiable Instrument for Fraud.
Bank of America, National Association --
https://www.bankofamerica.com/ -- operates as a bank. The Bank
offers saving and current account, investment and financial
services, online banking, and mortgage and non-mortgage loan
facilities, as well as issues credit card and business loans.[BN]
The Plaintiff is represented by:
Francis A. Bottini, Esq.
Albert Chang, Esq.
Anne Beste, Esq.
Yury Kolesnikov, Esq.
BOTTINI & BOTTINI, INC.
7817 Ivanhoe Avenue, Suite 102
La Jolla, CA 92037
Phone: (858) 914-2001
Fax: (858) 914-2002
Email: fbottini@bottinilaw.com
achang@bottinilaw.com
ykolesnikov@bottinilaw.com
The Defendants are represented by:
David Rossiter Callaway, Esq.
GOODWIN PROCTER LLP
601 Marshall Street
Redwood City, CA 94063
Phone: (650) 752-3100
Fax: (650) 853-1038
Email: dcallaway@goodwinlaw.com
- and -
Laura Alexandra Stoll, Esq.
GOODWIN PROCTER LLP
601 South Figueroa Street, 41st Floor
Los Angeles, CA 90017
Phone: (213) 426-2500
Fax: (213) 623-1673
Email: lstoll@goodwinlaw.com
The Third Party Plaintiff is represented by:
Brian Danitz, Esq.
COTCHETT, PITRE & McCARTHY. LLC
840 Malcolm Road
Burlingame, CA 94010
Phone: (650) 697-6000
Fax: (650) 697-6000
Email: bdanitz@cpmlegal.com
BANK OF AMERICA: Willrich Suit Transferred to S.D. California
-------------------------------------------------------------
The case is styled as styled as J. Michael Willrich, on behalf of
himself and others similarly situated v. Bank of America, N.A.,
Defendant; Jennifer Yick, Movant; Case No. 3:21-cv-00547, was
transferred from the U.S. District Court for the Northern District
of California, to the U.S. District Court for the Southern District
of California on June 10, 2021.
The District Court Clerk assigned Case No. 3:21-cv-01093-LAB to the
proceeding.
The nature of suit is stated as Other Contract for Breach of
Contract.
Bank of America, National Association --
https://www.bankofamerica.com/ -- operates as a bank. The Bank
offers saving and current account, investment and financial
services, online banking, and mortgage and non-mortgage loan
facilities, as well as issues credit card and business loans.[BN]
The Plaintiff is represented by:
Natasha N. Serino, Esq.
Shannon Frances Nocon, Esq.
LAW OFFICES OF ALEXANDER M. SCHACK
16870 West Bernardo Drive, Suite 400
San Diego, CA 92127
Phone: (858) 485-6535
Fax: (858) 485-0608
Email: natashaserino@amslawoffice.com
shannonnocon@amslawoffice.com
The Defendant is represented by:
Laura Alexandra Stoll, Esq.
GOODWIN PROCTER LLP
601 South Figueroa Street, 41st Floor
Los Angeles, CA 90017
Phone: (213) 426-2500
Fax: (213) 623-1673
Email: lstoll@goodwinlaw.com
- and -
David Rossiter Callaway, Esq.
GOODWIN PROCTER LLP
601 Marshall Street
Redwood City, CA 94063
Phone: (650) 752-3100
Fax: (650) 853-1038
Email: dcallaway@goodwinlaw.com
The Third Party Plaintiff is represented by:
Brian Danitz, Esq.
COTCHETT, PITRE & McCARTHY. LLC
840 Malcolm Road
Burlingame, CA 94010
Phone: (650) 697-6000
Fax: (650) 697-6000
Email: bdanitz@cpmlegal.com
BAYER CROPSCIENCE: Antitrust Suit Moved From S.D. Ill. to E.D. Mo.
------------------------------------------------------------------
The case styled JONES PLANTING CO. III, on behalf of itself and all
others similarly situated v. BAYER CROPSCIENCE LP; BAYER
CROPSCIENCE, INC.; CORTEVA INC.; CARGILL INCORPORATED; BASF
CORPORATION; SYNGENTA CORPORATION; WINFIELD SOLUTIONS, LLC; UNIVAR
SOLUTIONS, INC.; FEDERATED CO-OPERATIVES LTD.; CHS INC.; NUTRIEN AG
SOLUTIONS INC.; GROWMARK INC.; SIMPLOT AB RETAIL SUB, INC.; and
TENKOZ INC., Case No. 3:21-cv-00173, was transferred from the U.S.
District Court for the Southern District of Illinois to the U.S.
District Court for the Eastern District of Missouri on June 9,
2021.
The Clerk of Court for the Eastern District of Missouri assigned
Case No. 4:21-cv-00653-SRC to the proceeding.
The case arises from the Defendants' alleged violations of state
antitrust laws and state consumer protection laws in the U.S. by
engaging in an anticompetitive scheme and unlawful conspiracy to
deprive farmers the opportunity to purchase crop inputs such as
seed and crop protection chemicals like fungicides, herbicides, and
insecticides at transparent, competitive prices from electronic
platforms. Instead, they are forced to continue paying artificially
high prices for crop inputs purchased from local retailers subject
to the Defendants' confidentiality requirements, says the suit.
Bayer CropScience LP is a wholly-owned subsidiary of Bayer AG,
headquartered in Research Triangle Park, North Carolina.
Bayer CropScience Inc. is a wholly-owned subsidiary of Bayer AG,
headquartered in St. Louis, Missouri.
Corteva Inc. is an American agricultural chemical and seed company,
headquartered in Wilmington, Delaware.
Cargill, Incorporated is an American privately held global food
corporation based in Minnetonka, Minnesota.
BASF Corporation is a multinational pharmaceutical, seed, and
chemical company, headquartered in Florham Park, New Jersey.
Syngenta Corporation is a chemical manufacturing company based in
Wilmington, Delaware.
Winfield Solutions, LLC is a company that manufactures and
distributes seed and crop protection products, headquartered in
Arden Hills, Minnesota.
Univar Solutions, Inc. is a global chemical and ingredients
distributor based in Illinois.
Federated Co-operatives Ltd. is a crop inputs retailer
headquartered in Saskatoon, Saskatchewan.
CHS Inc. is a regional agricultural cooperative, headquartered in
Inver Grove Heights, Minnesota.
Nutrien Ag Solutions, Inc. is a crop inputs wholesaler based in
Colorado.
GROWMARK, Inc. is a crop inputs retailer headquartered in
Illinois.
Simplot AB Retail Sub, Inc. is a crop inputs retailer headquartered
in Idaho.
Tenkoz Inc. is a crop inputs retailer headquartered in Georgia.
[BN]
The Plaintiff is represented by:
Charles F. Barrett, Esq.
NEAL & HARWELL, PLC
1201 Demonbreun Street, Suite 1000
Nashville, TN 37203
Telephone: (615) 244-1713
E-mail: cbarrett@nealharwell.com
- and –
Gregory S. Asciolla, Esq.
Karin E. Garvey, Esq.
Jonathan S. Crevier, Esq.
LABATON SUCHAROW LLP
140 Broadway
New York, NY 10005
Telephone: (212) 907-0700
E-mail: gasciolla@labaton.com
kgarvey@labaton.com
jcrevier@labaton.com
- and –
Jonathan P. Barrett, Esq.
BARRETT LAW, PLLC
121 Colony Crossing, Suite D
Madison, MS 39110
Telephone: (601) 790-1505
E-mail: jpb@barrettlawms.com
BAYER CROPSCIENCE: Duncan Suit Moved From S.D. Ill. to E.D. Mo.
---------------------------------------------------------------
The case styled DARREN DUNCAN, individually and on behalf of all
others similarly situated v. BAYER CROPSCIENCE LP; BAYER
CROPSCIENCE, INC.; CORTEVA INC.; CARGILL INCORPORATED; BASF
CORPORATION; SYNGENTA CORPORATION; WINFIELD SOLUTIONS, LLC; UNIVAR
SOLUTIONS, INC.; FEDERATED CO-OPERATIVES LTD.; CHS INC.; NUTRIEN AG
SOLUTIONS INC.; GROWMARK INC.; SIMPLOT AB RETAIL SUB, INC.; and
TENKOZ INC., Case No. 3:21-cv-00158, was transferred from the U.S.
District Court for the Southern District of Illinois to the U.S.
District Court for the Eastern District of Missouri on June 9,
2021.
The Clerk of Court for the Eastern District of Missouri assigned
Case No. 4:21-cv-00651-SRC to the proceeding.
The case arises from the Defendants' alleged violations of state
antitrust laws and state consumer protection laws in the U.S. by
engaging in an anticompetitive scheme and unlawful conspiracy to
deprive farmers the opportunity to purchase crop inputs such as
seed and crop protection chemicals like fungicides, herbicides, and
insecticides at transparent, competitive prices from electronic
platforms. Instead, they are forced to continue paying artificially
high prices for crop inputs purchased from local retailers subject
to the Defendants' confidentiality requirements, the suit says.
Bayer CropScience LP is a wholly-owned subsidiary of Bayer AG,
headquartered in Research Triangle Park, North Carolina.
Bayer CropScience Inc. is a wholly-owned subsidiary of Bayer AG,
headquartered in St. Louis, Missouri.
Corteva Inc. is an American agricultural chemical and seed company,
headquartered in Wilmington, Delaware.
Cargill, Incorporated is an American privately held global food
corporation based in Minnetonka, Minnesota.
BASF Corporation is a multinational pharmaceutical, seed, and
chemical company, headquartered in Florham Park, New Jersey.
Syngenta Corporation is a chemical manufacturing company based in
Wilmington, Delaware.
Winfield Solutions, LLC is a company that manufactures and
distributes seed and crop protection products, headquartered in
Arden Hills, Minnesota.
Univar Solutions, Inc. is a global chemical and ingredients
distributor based in Illinois.
Federated Co-operatives Ltd. is a crop inputs retailer
headquartered in Saskatoon, Saskatchewan.
CHS Inc. is a regional agricultural cooperative, headquartered in
Inver Grove Heights, Minnesota.
Nutrien Ag Solutions, Inc. is a crop inputs wholesaler based in
Colorado.
GROWMARK, Inc. is a crop inputs retailer headquartered in
Illinois.
Simplot AB Retail Sub, Inc. is a crop inputs retailer headquartered
in Idaho.
Tenkoz Inc. is a crop inputs retailer headquartered in Georgia.
[BN]
The Plaintiff is represented by:
Derek Y. Brandt, Esq.
Leigh M. Perica, Esq.
Connor P. Lemire, Esq.
MCCUNE WRIGHT AREVALO, LLP
231 North Main Street, Suite 20
Edwardsville, IL 62025
Telephone: (618) 307-6116
Facsimile: (618) 307-6161
E-mail: dyb@mccunewright.com
lmp@mccunewright.com
cpl@mccunewright.com
- and –
Richard D. McCune, Esq.
MCCUNE WRIGHT AREVALO, LLP
3281 East Guasti Road, Suite 100
Ontario, CA 91761
Telephone: (909) 557-1250
E-mail: rdm@mccunewright.com
BAYER CROPSCIENCE: Faces Suit Over Crop Chemicals Market Monopoly
-----------------------------------------------------------------
GEORGE POTZNER, individually and on behalf of all others similarly
situated, Plaintiff v. BAYER CROPSCIENCE LP; BAYER CROPSCIENCE,
INC.; CORTEVA INC.; CARGILL INCORPORATED; BASF CORPORATION;
SYNGENTA CORPORATION; WINFIELD SOLUTIONS, LLC; UNIVAR SOLUTIONS,
INC.; PIONEER HI-BRED INTERNATIONAL, INC.; FEDERATED CO-OPERATIVES
LTD.; CHS INC.; NUTRIEN AG SOLUTIONS INC.; GROWMARK INC.; SIMPLOT
AB RETAIL SUB, INC.; and TENKOZ INC., Defendants, Case No.
3:21-cv-00535 (S.D. Ill., June 2, 2021) alleges violation of the
Sherman Act.
According to the complaint, the market for "Crop Inputs" -- seeds
and crop protection chemicals such as fungicides, herbicides, and
insecticides -- used by American farmers is one of the largest
markets in the world with annual sales in excess of $65 billion.
Historically and through the present, the distribution and sale
process for Crop Inputs enable the market participants to maintain
supra-competitive prices in part by denying farmers accurate
product information, including pricing information, which would
allow them to make fully-informed purchasing decisions. As a
result, the average price American farmers pay for Crop Inputs is
increasing at a rate that dramatically outpaces yields.
Recognizing these inefficiencies, several electronic Crop Inputs
sales platforms were launched in the past decade. These electronic
platforms aimed to provide a cheaper, more transparent way for
farmers to buy Crop Inputs, circumventing the existing opaque,
convoluted distribution system. For example, Farmers Business
Network ("FBN"), a leading electronic sales platform and Silicon
Valley startup, was extremely popular with farmers upon launch and
has successfully raised millions of dollars from leading venture
capital firms to build out capacity to meet that demand.
These new platforms allegedly threatened the Defendants' dominant
market positions and control over pricing. As a result, rather than
compete fairly with the electronic platforms, the Defendants
conspired to block the platforms' access to Crop Inputs by engaging
in a group boycott. The Defendants blocked FBN's access to Crop
Inputs by agreeing among themselves not to sell products to FBN,
even though doing so would have opened a significant new sales
channel for any individual manufacturer, wholesaler, or retailer
acting independently and would have been in Defendants' unilateral
best economic interests. To ensure that this boycott was
successful, the Defendants imposed strict penalties on retailers
who made sales to FBN. Similarly, certain manufacturers audited
authorized retailers to ensure that electronic platforms were not
securing branded Crop Inputs by buying from an authorized retailer,
the suit asserts.
Bayer Cropscience LP operates as a crop science company. The
Company offers fungicides, harvest aids, herbicides, insecticides,
traits, seed, and seed treatments. [BN]
The Plaintiff is represented by:
Elizabeth A. Fegan, Esq.
FEGAN SCOTT LLC
150 S. Wacker Dr., 24th Floor
Chicago, IL 60606
Telephone: (312) 741-1019
Facsimile: (312) 264-0100
E-mail: beth@feganscott.com
-and-
Jonathan D. Lindenfeld, Esq.
FEGAN SCOTT LLC
140 Broadway, 46th Floor
New York, NY 10005
Telephone: (332) 216-2101
Facsimile: (312) 2640-0100
E-mail: jonathan@feganscott.com
BAYER CROPSCIENCE: Lex Suit Moved From S.D. Ill. to E.D. Mo.
------------------------------------------------------------
The case styled CHARLES LEX, on behalf of himself and all others
similarly situated v. BAYER CROPSCIENCE LP; BAYER CROPSCIENCE,
INC.; CORTEVA INC.; CARGILL INCORPORATED; BASF CORPORATION;
SYNGENTA CORPORATION; WINFIELD SOLUTIONS, LLC; UNIVAR SOLUTIONS,
INC.; FEDERATED CO-OPERATIVES LTD.; CHS INC.; NUTRIEN AG SOLUTIONS
INC.; GROWMARK INC.; SIMPLOT AB RETAIL SUB, INC.; and TENKOZ INC.,
Case No. 3:21-cv-00122, was transferred from the U.S. District
Court for the Southern District of Illinois to the U.S. District
Court for the Eastern District of Missouri on June 9, 2021.
The Clerk of Court for the Eastern District of Missouri assigned
Case No. 4:21-cv-00654-SRC to the proceeding.
The case arises from the Defendants' alleged violations of state
antitrust laws and state consumer protection laws in the U.S. by
engaging in an anticompetitive scheme and unlawful conspiracy to
deprive farmers the opportunity to purchase crop inputs such as
seed and crop protection chemicals like fungicides, herbicides, and
insecticides at transparent, competitive prices from electronic
platforms. Instead, they are forced to continue paying artificially
high prices for crop inputs purchased from local retailers subject
to the Defendants' confidentiality requirements, the suit says.
Bayer CropScience LP is a wholly-owned subsidiary of Bayer AG,
headquartered in Research Triangle Park, North Carolina.
Bayer CropScience Inc. is a wholly-owned subsidiary of Bayer AG,
headquartered in St. Louis, Missouri.
Corteva Inc. is an American agricultural chemical and seed company,
headquartered in Wilmington, Delaware.
Cargill, Incorporated is an American privately held global food
corporation based in Minnetonka, Minnesota.
BASF Corporation is a multinational pharmaceutical, seed, and
chemical company, headquartered in Florham Park, New Jersey.
Syngenta Corporation is a chemical manufacturing company based in
Wilmington, Delaware.
Winfield Solutions, LLC is a company that manufactures and
distributes seed and crop protection products, headquartered in
Arden Hills, Minnesota.
Univar Solutions, Inc. is a global chemical and ingredients
distributor based in Illinois.
Federated Co-operatives Ltd. is a crop inputs retailer
headquartered in Saskatoon, Saskatchewan.
CHS Inc. is a regional agricultural cooperative, headquartered in
Inver Grove Heights, Minnesota.
Nutrien Ag Solutions, Inc. is a crop inputs wholesaler based in
Colorado.
GROWMARK, Inc. is a crop inputs retailer headquartered in
Illinois.
Simplot AB Retail Sub, Inc. is a crop inputs retailer headquartered
in Idaho.
Tenkoz Inc. is a crop inputs retailer headquartered in Georgia.
[BN]
The Plaintiff is represented by:
Robert L. King, Esq.
KOREIN TILLERY LLC
One U.S. Bank Plaza
505 N. 7th Street, Suite 3600
St. Louis, MO 63101
Telephone: (314) 241-4844
E-mail: rking@koreintillery.com
- and –
W. Joseph Bruckner, Esq.
Robert K. Shelquist, Esq.
Brian D. Clark, Esq.
Rebecca A. Peterson, Esq.
Stephanie A. Chen, Esq.
LOCKRIDGE GRINDAL NAUEN P.L.L.P.
100 Washington Ave. South, Suite 2200
Minneapolis, MN 55401
Telephone: (612) 339-6900
E-mail: wjbruckner@locklaw.com
rkshelquist@locklaw.com
bdclark@locklaw.com
rapeterson@locklaw.com
sachen@locklaw.com
- and –
J. Barton Goplerud, Esq.
Brandon M. Bohlman, Esq.
SCHINDLER, ANDERSON, GOPLERUD & WEESE P.C.
5015 Grand Ridge Drive, Suite 100
West Des Moines, IA 50265
Telephone: (515) 223-4567
E-mail: goplerud@sagwlaw.com
bohlman@sagwlaw.com
BAYER CROPSCIENCE: Swanson Suit Moved From S.D. Ill. to E.D. Mo.
----------------------------------------------------------------
The case styled JOHN C. SWANSON, on behalf of himself and all
others similarly situated v. BAYER CROPSCIENCE LP; BAYER
CROPSCIENCE, INC.; CORTEVA INC.; CARGILL INCORPORATED; BASF
CORPORATION; SYNGENTA CORPORATION; WINFIELD SOLUTIONS, LLC; UNIVAR
SOLUTIONS, INC.; FEDERATED CO-OPERATIVES LTD.; CHS INC.; NUTRIEN AG
SOLUTIONS INC.; GROWMARK INC.; GROWMARK FS, LLC; SIMPLOT AB RETAIL
SUB, INC.; and TENKOZ INC., Case No. 3:21-cv-00046, was transferred
from the U.S. District Court for the Southern District of Illinois
to the U.S. District Court for the Eastern District of Missouri on
June 9, 2021.
The Clerk of Court for the Eastern District of Missouri assigned
Case No. 4:21-cv-00655-SRC to the proceeding.
The case arises from the Defendants' alleged violations of state
antitrust laws and state consumer protection laws in the U.S. by
engaging in an anticompetitive scheme and unlawful conspiracy to
deprive farmers the opportunity to purchase crop inputs such as
seed and crop protection chemicals like fungicides, herbicides, and
insecticides at transparent, competitive prices from electronic
platforms. They have been forced to continue paying
supra-competitive prices for crop inputs purchased from inefficient
brick-and-mortar retailers, subject to the Defendants'
confidentiality requirements, the suit says.
Bayer CropScience LP is a wholly-owned subsidiary of Bayer AG,
headquartered in Research Triangle Park, North Carolina.
Bayer CropScience Inc. is a wholly-owned subsidiary of Bayer AG,
headquartered in St. Louis, Missouri.
Corteva Inc. is an American agricultural chemical and seed company,
headquartered in Wilmington, Delaware.
Cargill, Incorporated is an American privately held global food
corporation based in Minnetonka, Minnesota.
BASF Corporation is a multinational pharmaceutical, seed, and
chemical company, headquartered in Florham Park, New Jersey.
Syngenta Corporation is a chemical manufacturing company based in
Wilmington, Delaware.
Winfield Solutions, LLC is a company that manufactures and
distributes seed and crop protection products, headquartered in
Arden Hills, Minnesota.
Univar Solutions, Inc. is a global chemical and ingredients
distributor based in Illinois.
Federated Co-operatives Ltd. is a crop inputs retailer
headquartered in Saskatoon, Saskatchewan.
CHS Inc. is a regional agricultural cooperative, headquartered in
Inver Grove Heights, Minnesota.
Nutrien Ag Solutions, Inc. is a crop inputs wholesaler based in
Colorado.
GROWMARK, Inc. is a crop inputs retailer headquartered in
Illinois.
GROWMARK FS, LLC is a crop inputs retailer headquartered in
Delaware.
Simplot AB Retail Sub, Inc. is a crop inputs retailer headquartered
in Idaho.
Tenkoz Inc. is a crop inputs retailer headquartered in Georgia.
[BN]
The Plaintiff is represented by:
Robert A. Clifford, Esq.
Shannon M. McNulty, Esq.
CLIFFORD LAW OFFICES, P.C.
120 North LaSalle, #3100
Chicago, IL 60602
Telephone: (312) 899-9090
E-mail: rac@cliffordlaw.com
smm@cliffordlaw.com
- and –
Linda P. Nussbaum, Esq.
Bart D. Cohen, Esq.
Christopher B. Sanchez, Esq.
Louis Kessler, Esq.
NUSSBAUM LAW GROUP, P.C.
1211 Avenue of the Americas, 40th Floor
New York, NY 10036
Telephone: (917) 438-9102
E-mail: lnussbaum@nussbaumpc.com
bcohen@nussbaumpc.com
csanchez@nussbaumpc.com
lkessler@nussbaumpc.com
- and –
Arthur N. Bailey, Esq.
Marco Cercone, Esq.
RUPP BAASE PFALZGRAF CUNNINGHAM LLC
1600 Liberty Building
424 Main Street
Buffalo, NY 14202
Telephone: (716) 854-3400
E-mail: bailey@ruppbaase.com
cercone@ruppbaase.com
BAYER CROPSCIENCE: Vienna Eqho Farms Suit Transferred to E.D. Mo.
-----------------------------------------------------------------
The case styled VIENNA EQHO FARMS, on behalf of itself and all
others similarly situated v. BAYER CROPSCIENCE LP; BAYER
CROPSCIENCE, INC.; CORTEVA INC.; CARGILL INCORPORATED; BASF
CORPORATION; SYNGENTA CORPORATION; WINFIELD SOLUTIONS, LLC; UNIVAR
SOLUTIONS, INC.; FEDERATED CO-OPERATIVES LTD.; CHS INC.; NUTRIEN AG
SOLUTIONS INC.; GROWMARK INC.; SIMPLOT AB RETAIL SUB, INC.; and
TENKOZ INC., Case No. 3:21-cv-00204, was transferred from the U.S.
District Court for the Southern District of Illinois to the U.S.
District Court for the Eastern District of Missouri on June 9,
2021.
The Clerk of Court for the Eastern District of Missouri assigned
Case No. 4:21-cv-00656-SRC to the proceeding.
The case arises from the Defendants' alleged violations of state
antitrust laws and state consumer protection laws in the U.S. by
engaging in an anticompetitive scheme and unlawful conspiracy to
deprive farmers the opportunity to purchase crop inputs such as
seed and crop protection chemicals like fungicides, herbicides, and
insecticides at transparent, competitive prices from electronic
platforms. Instead, they are forced to continue paying artificially
high prices for crop inputs purchased from local retailers subject
to the Defendants' confidentiality requirements, says the suit.
Bayer CropScience LP is a wholly-owned subsidiary of Bayer AG,
headquartered in Research Triangle Park, North Carolina.
Bayer CropScience Inc. is a wholly-owned subsidiary of Bayer AG,
headquartered in St. Louis, Missouri.
Corteva Inc. is an American agricultural chemical and seed company,
headquartered in Wilmington, Delaware.
Cargill, Incorporated is an American privately held global food
corporation based in Minnetonka, Minnesota.
BASF Corporation is a multinational pharmaceutical, seed, and
chemical company, headquartered in Florham Park, New Jersey.
Syngenta Corporation is a chemical manufacturing company based in
Wilmington, Delaware.
Winfield Solutions, LLC is a company that manufactures and
distributes seed and crop protection products, headquartered in
Arden Hills, Minnesota.
Univar Solutions, Inc. is a global chemical and ingredients
distributor based in Illinois.
Federated Co-operatives Ltd. is a crop inputs retailer
headquartered in Saskatoon, Saskatchewan.
CHS Inc. is a regional agricultural cooperative, headquartered in
Inver Grove Heights, Minnesota.
Nutrien Ag Solutions, Inc. is a crop inputs wholesaler based in
Colorado.
GROWMARK, Inc. is a crop inputs retailer headquartered in
Illinois.
Simplot AB Retail Sub, Inc. is a crop inputs retailer headquartered
in Idaho.
Tenkoz Inc. is a crop inputs retailer headquartered in Georgia.
[BN]
The Plaintiff is represented by:
John W. "Don" Barrett, Esq.
Katherine Barrett Riley, Esq.
David McMullan, Jr., Esq.
Sterling Starns, Esq.
BARRETT LAW GROUP, P.A.
P.O. Box 927
404 Court Square North
Lexington, MS 39095-0927
Telephone: (662) 834-2488
Facsimile: (662) 834-2628
E-mail: dbarrett@barrettlawgroup.com
kbriley@barrettlawgroup.com
dmcmullan@barrettlawgroup.com
sstarns@barrettlawgroup.com
- and –
Jonathan W. Cuneo, Esq.
Victoria Sims, Esq.
Blaine Finley, Esq.
CUNEO GILBERT & LADUCA, LLP
4725 Wisconsin Ave., NW Suite 200
Washington, DC 20016
Telephone: (202) 789-3960
E-mail: jonc@cuneolaw.com
vicky@cuneolaw.com
bfinley@cuneolaw.com
BBVA USA: California Court Allows Arbitration in Hill Class Suit
----------------------------------------------------------------
In the case, SARAH HILL, and TIMOTHY MILLS, on behalf of themselves
and all others similarly situated, Plaintiffs v. BBVA USA, an
Alabama corporation, Defendant, Case No. 20-CV-1016 JLS (WVG) (S.D.
Cal.), Judge Janis L. Sammartino of the U.S. District Court for the
Southern District of California grants Defendant BBVA USA's Motion
to Compel Arbitration.
The Plaintiffs hold separate checking accounts with the Defendant,
which offers retail banking services. They allege that the
Defendant assessed overdraft fees on transactions that did not
overdraw their bank accounts, and the Defendant charged more than
one nonsufficient funds fee on a single transaction. The
Plaintiffs contend that these practices breach the terms of their
account contracts with Defendant and violate California's Unfair
Competition Law ("UCL"), Cal. Bus. & Prof. Code Sections 17200, et
seq.
The Plaintiffs, proceeding on behalf of a putative class, seek
declaratory relief, monetary damages, and an order on behalf of the
general public enjoining the Defendant from "misrepresenting and/or
omitting material information as to its fee assessment practices."
When the Plaintiffs opened their checking accounts with the
Defendant, they agreed to the Defendant's Consumer Deposit Account
Agreement. Section 3 of the Agreement is entitled Dispute
Resolution, Arbitration. Additionally, the Arbitration Agreement
includes the clause regarding class action, private attorney
general, and representative actions. Finally, the Agreement
provides the clause regarding the availability of remedies.
The Defendant filed the present Motion alongside a Motion to
Dismiss and Motion to Strike the Amended Complaint. The Parties
filed a Joint Motion requesting that the Court considers only the
Defendant's Motion to Compel Arbitration and stay consideration of
the Defendant's Motion to Dismiss and Motion to Strike until after
the Court has ruled on the issue of arbitration. The Court granted
the Joint Motion.
The Defendant advances two arguments in support of its Motion to
compel individual arbitration of the Plaintiffs' claims. First,
the Defendant argues that because the Arbitration Agreement permits
the Plaintiffs to seek public injunctive relief in arbitration
proceedings, California law does not prohibit enforcement of the
Agreement. Second, it argues that the Plaintiffs do not seek a
public injunction, and therefore California law does not provide a
basis for avoiding arbitration.
Because Judge Sammartino finds the Arbitration Agreement does not
bar the Plaintiffs from seeking public injunctive relief, she need
not address whether the Plaintiffs seek a public injunction.
The Plaintiffs argue the California Supreme Court's decision in
McGill v. Citibank, N.A., 393 P.3d 85 (Cal. 2017), invalidates the
Arbitration Agreement. The McGill court held that an arbitration
provision is invalid and unenforceable if it waives a plaintiff's
statutory right to seek public injunctive relief in any forum.
Public injunctive relief is a remedy that has the primary purpose
and effect of prohibiting unlawful acts that threaten future injury
to the general public. Such relief benefits the plaintiff, if at
all, only incidentally and/or as a member of the general public.
However, the McGill court made clear that a litigant proceeding as
a "private individual" "on his or her own behalf" may "request
public injunctive relief." Additionally, the Ninth Circuit has
held that McGill "shows no hostility to, and does not prohibit, the
arbitration of public injunctions."
The Plaintiffs allege that the Defendant breached the terms of the
Agreement with account holders and violated California's UCL. More
specifically, they seek to enjoin the Defendant "from
misrepresenting and/or omitting material information as to its fee
assessment practices in the documents that it makes available to
the public." They claim that the Arbitration Agreement precludes
them from seeking this relief, and therefore the Arbitration
Agreement is invalid under the McGill rule.
The Plaintiffs argue the Arbitration Agreement improperly waives
their right to seek public injunctive relief in any forum. They
claim that the Agreement's bar on representative, class, and
collective actions prohibits them from seeking public injunctive
relief for their UCL claim, and therefore the Agreement is invalid
under the McGill rule. I
Judge Sammartino holds that this argument was recently rejected by
the Ninth Circuit in DiCarlo v. MoneyLion, Inc., 988 F.3d 1148 (9th
Cir. 2021). In DiCarlo, the plaintiff could seek public injunctive
relief despite the arbitration agreement's ban on representative
actions because such a clause does not restrict the availability of
public injunctive relief. The Dicarlo court clarified that public
injunction claims are distinct from class actions and
representative actions. As the McGill court held, a plaintiff
proceeding "on his or her own behalf" may "request public
injunctive relief." The type of action and the type of relief
sought are separate inquiries. Therefore, an arbitration clause
waiving representative actions does not, by itself, run afoul with
the McGill rule.
The Plaintiffs' argument is similarly unavailing, Judge Sammartino
holds. She says although the Agreement prevents the Plaintiffs
from joining their claims together, they may individually seek
public injunctive relief that benefits the general public. The
Arbitration Agreement provides that "nothing in this arbitration
provision will limit certain other rights" the parties may have.
The Agreement specifically provides that the Plaintiffs could "get
an injunction." Because the Plaintiffs are free to seek public
injunctive relief in arbitration, there is no conflict with McGill,
and the Arbitration Agreement is valid and enforceable.
Accordingly, Judge Sammartino grants the Defendant's Motion to
Compel Arbitration. Because she finds all of the Plaintiffs'
claims subject to arbitration, the Judge denies without prejudice
the Defendant's Motion to Dismiss for Failure to State a Claim and
Motion to Dismiss for Lack of Jurisdiction and Motion to Strike.
When arbitration is mandatory, courts have discretion to stay the
case under 9 U.S.C. Section 3 or dismiss the litigation entirely.
The Defendant requests the Court either enters an order compelling
arbitration and staying the litigation or dismisses the action.
The Plaintiffs request that the Court dismisses the case, rather
than stay it, so they may pursue an appeal. An order compelling
arbitration may be appealed if the district court dismisses all the
underlying claims, but may not be appealed if the court stays the
action pending arbitration. The Parties have not provided any
argument why the Court should retain jurisdiction over the matter;
therefore, the Judge concludes dismissal is appropriate.
Accordingly, she dismisses the action in its entirety.
The Clerk of Court will close the file.
A full-text copy of the Court's June 1, 2021 Order is available at
https://tinyurl.com/pr4z2jtp from Leagle.com.
BENJAMIN F. EDWARDS: Young Files ADA Suit in S.D. New York
----------------------------------------------------------
A class action lawsuit has been filed against Benjamin F. Edwards &
Company, Inc. The case is styled as Lawrence Young, on behalf of
himself and all other persons similarly situated v. Benjamin F.
Edwards & Company, Inc., Case No. 1:21-cv-05184 (S.D.N.Y., June 10,
2021).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Benjamin F. Edwards & Company, Inc. --
https://benjaminfedwards.com/ -- operates as a wealth management
company. The Company manages securities such as stock, bonds, and
mutual funds.[BN]
The Plaintiff is represented by:
Michael A. LaBollita, Esq.
GOTTLIEB & ASSOCIATES
150 E. 18th Street, Suite Phr
New York, NY 10003
Phone: (212) 228-9795
Email: michael@gottlieb.legal
BENNETEK ECOMMERCE: Angeles Files ADA Suit in S.D. New York
-----------------------------------------------------------
A class action lawsuit has been filed against Bennetek Ecommerce
Company. The case is styled as Jenisa Angeles, on behalf of herself
and all others similarly situated v. Bennetek Ecommerce Company,
Case No. 1:21-cv-05188 (S.D.N.Y., June 10, 2021).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Bennetek Ecommerce Company doing business as Natural Candy Store --
https://www.naturalcandystore.com/ -- offers 100% natural candy
with no artificial colors, flavors, preservatives, or
sweeteners.[BN]
The Plaintiff is represented by:
Mark Rozenberg, Esq.
STEIN SAKS, PLLC
285 Passaic Street
Hackensack, NJ 07601
Phone: (201) 282-6500
Email: mrozenberg@steinsakslegal.com
BOLLINGER MOTORS: Davis Files ADA Suit in S.D. New York
-------------------------------------------------------
A class action lawsuit has been filed against Bollinger Motors,
Inc. The case is styled as Kevin Davis, on behalf of himself and
all others similarly situated v. Bollinger Motors, Inc., Case No.
1:21-cv-05128 (S.D.N.Y., June 10, 2021).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Bollinger Motors, Inc. -- https://bollingermotors.com/ -- is an
automotive company designing and engineering Class 3 electric
trucks.[BN]
The Plaintiff is represented by:
Yitzchak Zelman, Esq.
MARCUS & ZELMAN LLC
701 Cookman Avenue, Suite 300
Asbury Park, NJ 07712
Phone: (845) 367-7146
Fax: (732) 298-6256
Email: yzelman@marcuszelman.com
CARDINAL MULTI: Mendoza Sues Over Construction Workers' Unpaid OT
-----------------------------------------------------------------
FRANCISCO MENDOZA, MIGUEL MARTINEZ and KEVIN RODRIGUEZ,
individually and on behalf of all others similarly situated,
Plaintiffs v. CARDINAL MULTI SERVICES LLC and WILSON O. AGUILAR,
Defendants, Case No. 1:21-cv-00685 (E.D. Va., June 8, 2021) is a
class action against the Defendants for violations of the Fair
Labor Standards Act and the Virginia Wage Payment Act by failing to
pay overtime for all hours worked in excess of 40 hours in a
workweek and failing to provide meal breaks or pay premium in lieu
thereof.
The Plaintiffs worked for the Defendants as construction
employees.
Cardinal Multi Services LLC is a provider of underground utility
installation, asphalt, and traffic control services, located at
5504 Oakwood Road, Alexandria, Virginia. [BN]
The Plaintiffs are represented by:
Mark Hanna, Esq.
Roseann R. Romano, Esq.
MURPHY ANDERSON PLLC
1401 K Street NW, Suite 300
Washington, DC 20005
Telephone: (202) 223-2620
Facsimile: (202) 296-9600
E-mail: mhanna@murphypllc.com
CARRIZO OIL: July 2 Extension to File Class Cert. Bid Sought
------------------------------------------------------------
In the class action lawsuit captioned as DON CHISUM, Individually
and For Others Similarly Situated, v. CARRIZO OIL & GAS, INC.,
CALLON PETROLEUM COMPANY, and CALLON PETROLEUM OPERATING COMPANY,
Case No. 4:20-cv-00051-DC-DF (W.D. Tex.), the Parties ask the Court
to enter an order extending the deadline for the Plaintiff to file
his Motion for Court Approved Notice and for Defendants to file
their Response to same:
1. The deadline for Plaintiff to file a Motion for Class
Certification and Court Approved Notice be extended by
fourteen days, from the current deadline of Friday, June 11,
2021 to Friday, July 2, 2021.
2. The deadline for Defendants to file a Response to Plaintiff's
Motion for Class Certification and Court Approved Notice be
extended from seven days (Local Court Rule 7(e)) to 21 days,
to Monday, July 23, 2021.
3. The deadline for Plaintiff to file a Reply remains seven days
(Local Court Rule 7(f)), and is Monday, July 30, 2021.
Carrizo Oil explores for and produces natural gas and crude oil.
Callon is an independent oil and natural gas company.
A copy of the Parties motion dated June 9, 2021 is available from
PacerMonitor.com at https://bit.ly/3iAWeNr at no extra charge.[CC]
The Plaintiff is represented by:
Richard M. Schreiber, Esq.
Michael A. Josephson, Esq.
Andrew W. Dunlap, Esq.
Richard M. Schreiber, Esq.
JOSEPHSON DUNLAP LLP
11 Greenway Plaza, Suite 3050
Houston, TX 77046
Telephone: (713) 352-1100
Facsimile: (713) 352-3300
E-mail: mjosephson@mybackwages.com
adunlap@mybackwages.com
rschreiber@mybackwages.com
- and -
Richard J. (Rex) Burch, Esq.
BRUCKNER BURCH, PLLC
8 Greenway Plaza, Suite 1500
Houston, TX 77046
Telephone: (713) 877-8788
Facsimile: (713) 877-8065
E-mail: rburch@brucknerburch.com
The Defendant is represented by:
David B. Jordan, Esq.
Paige A. Cantrell, Esq.
LITTLER MENDELSON, P.C.
1301 McKinney Street, Suite 1900
Houston, TX 77010
Telephone: (713) 951-9400
Facsimile: (713) 951-9212
E-mail djordan@littler.com
pcantrell@littler.com
CELTIC SERVICES: Fails to Pay Overtime Wages, Penate Alleges
------------------------------------------------------------
FIDEL PENATE, individually and on behalf of all others similarly
situated, Plaintiff v. CELTIC SERVICES NYC INC.; WHITE STAR NYC
INC.; KIERAN SLEVIN A/K/A CAMARON; and CARLOS MENDOZA, Defendants,
Case No. 1:21-cv-04863 (S.D.N.Y., June 2, 2021) is an action
against the Defendant's failure to pay the Plaintiff and the class
overtime compensation for hours worked in excess of 40 hours per
week.
Plaintiff Penate was employed by the Defendants as laborer.
CELTIC SERVICES NYC INC. provides general contracting services for
residential and commercial properties. [BN]
The Plaintiff is represented by:
Jiajing Fan, Esq.
HANG & ASSOCIATES, PLLC
136-20 38th Avenue, Suite 10G
Flushing, NY 11354
Telephone: (718)353-8588
E-mail: jfan@hanglaw.com
CENTRAL BUCKS: Marinello Suit Alleges Equal Pay Violations
----------------------------------------------------------
DAWN MARINELLO, individually and on behalf of all others similarly
situated, Plaintiff v. CENTRAL BUCKS SCHOOL DISTRICT, Defendant,
Case No. 2:21-cv-02587 (E.D. Pa., June 8, 2021) is a class action
against the Defendant for violations of rights under the federal
Equal Pay Act.
The case arises from the Defendant's alleged discrimination against
female teachers, including the Plaintiff, by compensating male
teachers more favorably than female teachers under the Salary
Schedules.
Ms. Marinello has been employed as a teacher by the Defendant since
August 2016.
Central Bucks School District is a public school district in Bucks
County, Pennsylvania. [BN]
The Plaintiff is represented by:
Edward S. Mazurek, Esq.
THE MAZUREK LAW FIRM, LLC
717 S. Columbus Blvd., Suite 516
Philadelphia, PA 19147
Telephone: (267) 243-3393
E-mail: emazurek@mazureklawfirm.com
CHARTER FOODS: Davis FLSA Suit Seeks to Certify Class of AGMs
-------------------------------------------------------------
In the class action lawsuit captioned as TIM DAVIS and NIKLAUS
RYKER SCHLEUFER, individually and on behalf of all others similarly
situated, v. CHARTER FOODS, INC., CHARTER CENTRAL, LLC, and CHARTER
FOODS NORTH, LLC, Case No. 2:20-cv-159 (E.D. Tenn.), the Plaintiffs
ask the Court to enter an order certifying a class consisting of:
"all individuals who are or have been employed by Defendants as
an Assistant General Manager in the Commonwealth of Pennsylvania
from three years prior to the filing date of this Complaint up
until this State Class is finally certified by the Court, who
have worked more than 40 hours per week without being paid at
overtime rates."
The Plaintiffs were employed by the Defendants as Assistant General
Managers (AGMs) and were classified as exempt for purposes of the
Fair Labor Standards Act (FLSA), making them ineligible for
overtime pay. They worked considerable amounts of unpaid overtime,
which the Defendants owe them because their classification as
exempt was in violation of the FLSA and its implementing
regulations. Because they are similarly situated to all other
Charter AGMs, having all been victims of the same corporate
misclassification policy, the Court should conditionally certify
their proposed FLSA collective, the Plaintiffs contend.
Charter Foods is located in Morristown, Tennessee and is part of
the Fast-Food & Quick-Service Restaurants Industry.
A copy of the Plaintiffs' motion to certify class dated June 9,
2021 is available from PacerMonitor.com at https://bit.ly/3xblTQM
at no extra charge.[CC]
The Plaintiffs are represented by:
Jennifer B. Morton, Esq.
Maha M. Ayesh, Esq.
JENNIFER MORTON LAW, PLLC
8217 Pickens Gap Road
Knoxville, TN 37920
Telephone: (865) 579 0708
Facsimile: (865) 579-0787
E-mail: jen@jmortonlaw.com
maha@jmortonlaw.com
- and -
Derrek W. Cummings, Esq.
Larry A. Weisberg, Esq.
WEISBERG CUMMINGS, P.C.
2704 Commerce Drive, Suite B
Harrisburg, PA 17110-9380
Telephone: (717) 238-5707
Facsimile: (717) 233-8133
E-mail: dcummings@weisbergcummings.com
lweisberg@weisbergcummings.com
- and -
George A. Hanson, Esq.
Alexander T. Ricke, Esq.
STUEVE SIEGEL HANSON LLP
460 Nichols Rd, Suite 200
Kansas City, MO 64112
Telephone: (816) 714-7100
Facsimile: (816) 714-7101
E-mail: hanson@stuevesiegel.com
ricke@stuevesiegel.com
CHIME FINANCIAL: Court Enters Final Judgment in Richards Class Suit
-------------------------------------------------------------------
Judge Haywood S. Gilliam, Jr., of the U.S. District Court for the
Northern District of California, Oakland Division, entered Final
Judgment in the case, RYAN RICHARDS, RUBA AYOUB, BRANDY TERBAY AND
TRACY CUMMINGS, on behalf of themselves and all others similarly
situated, Plaintiffs v. CHIME FINANCIAL, INC., GALILEO FINANCIAL
TECHNOLOGIES, INC., and THE BANCORP INC., Defendant, Case No.
4:19-CV-06864-HSG (N.D. Cal.).
The Judgment is entered for the reasons set forth in the Court's
Order Granting Motion for Final Approval and Granting in part and
Denying in Part Motion for Attorneys' Fees, dated May 24, 2021, in
the matter as to the following class of persons: All consumers who
attempted to and were unable to access or utilize the functions of
their accounts with Chime, as confirmed by a failed transaction or
a locked card as recorded in Chime's business records, beginning on
Oct. 16, 2019 through Oct. 19, 2019, as a result of the Service
Disruption.
The Judgment is entered, pursuant to Federal Rule of Civil
Procedure 58, as to the class of persons, Plaintiffs Ryan Richards,
Ruba Ayoub, Brandy Terbay, and Tracy Cummings, and Defendants Chime
Financial, Inc., Galileo Financial Technologies, LLC, formerly
known as Galileo Financial Technologies, Inc., and The Bancorp
Inc., on the terms and conditions of the class action settlement
agreement approved by the Court's Final Approval Order.
Judge Gilliam, for purposes of the Final Judgment, adopts the terms
and definitions set forth in the Settlement Agreement incorporated
into the Final Approval Order, which Final Approval Order is
incorporated in the Final Judgment as if restated in full, and
which granted final approval to the Settlement Agreement and
directed the Parties and the Settlement Administrator to implement
the Final Approval Order and the Settlement Agreement in accordance
with the terms of the Settlement Agreement.
All Released Claims of the Releasing Parties are released as
against the Defendants and the Released Parties, as detailed in the
Settlement Agreement.
The claims of Plaintiffs and the Settlement Class are dismissed on
the merits and with prejudice in accordance with the Court's Final
Approval Order.
The Class Counsel's attorneys' fees, costs, and expenses are
awarded as set forth in the Final Approval Order.
The Parties will bear their own costs and attorneys' fees, except
as otherwise set forth in the Final Approval Order.
The Final Judgment document constitutes a final judgment and
separate document for purposes of Federal Rule of Civil Procedure
58(a).
Judge Gilliam finds, pursuant to Rule 54(a) of the Federal Rules of
Civil Procedure, that the Final Judgment should be entered and that
there is no just reason for delay in the entry of the Final
Judgment as to the Plaintiffs, the Settlement Class, and the
Defendants. Accordingly, the Clerk is directed to enter Judgment
forthwith and close the case.
A full-text copy of the Court's June 1, 2021 Judgment is available
at https://tinyurl.com/29n6pbsw from Leagle.com.
CLOUDERA INC: Filing of Amended Complaint Due June 24
-----------------------------------------------------
Cloudera, Inc. said in its Form 10-Q Report filed with the
Securities and Exchange Commission on June 4, 2021, for the
quarterly period ended April 30, 2021, that filing of amended
complaint in the consolidated suit entitled, In re Cloudera, Inc.
Securities Litigation, Case No. 5:19-cv-3221-LHK, is due on June
24, 2021.
On June 7, 2019, a purported class action complaint was filed in
the United States District Court for the Northern District of
California, entitled Christie v. Cloudera, Inc., et al., Case No.
5:19-cv-3221-LHK.
The complaint named as defendants Cloudera, its former Chief
Executive Officer, its Chief Financial Officer and a former officer
and director, asserting alleged class claims under Sections 10(b)
and 20(a) of the Securities Exchange Act of 1934 (Exchange Act) and
SEC Rule 10b-5. Two substantially similar class action complaints,
entitled Zarantonello v. Cloudera, Inc., et al., Case No.
5:19-cv-4007-LHK, and Dvornic v. Cloudera, Inc., et al., Case No.
5:19-cv-4310-LHK, were subsequently filed against the same
defendants in the same court on July 12, 2019 and July 26, 2019,
respectively. The suits have been consolidated under the name, In
re Cloudera, Inc. Securities Litigation, Case No. 5:19-cv-3221-LHK.
The court subsequently appointed lead plaintiffs and lead counsel,
and a consolidated complaint was filed on February 14, 2020.
On March 18, 2020, the court vacated its prior order appointing
lead plaintiffs and lead counsel and reopened the lead plaintiff
process. On July 27, 2020, the court appointed new lead plaintiffs
and lead counsel. On September 22, 2020, lead plaintiffs filed a
consolidated amended complaint.
The consolidated amended complaint asserted claims against Cloudera
and four individual defendants under Sections 10(b) and 20(a) of
the Exchange Act and Rule 10b-5, based on allegedly false and
misleading statements between April 28, 2017 and June 5, 2019.
The consolidated amended complaint also asserted claims against
Cloudera, Intel Corporation, and fourteen current and former
officers and directors under the Securities Act of 1933, on behalf
of all persons who acquired Cloudera stock pursuant or traceable to
the S-4 registration statement filed in connection with Cloudera's
January 2019 merger with Hortonworks, and alleged that the
registration statement contained untrue statements of material fact
and omitted material facts.
On April 2, 2021, the Court denied a motion filed by two additional
plaintiffs seeking permission to file an additional class action
complaint alleging claims under the Securities Act of 1933.
On May 25, 2021, the Court granted defendants' motions to dismiss
the consolidated amended complaint with leave to amend. Plaintiffs
have until June 24, 2021 to file an amended complaint.
Cloudera, Inc. provides platform for machine learning and analytics
in the United States, Europe, and Asia. The company operates
through two segments, Subscription and Services. Cloudera, Inc. was
founded in 2008 and is headquartered in Palo Alto, California.
CLOUDERA INC: Securities Class Suit in California Underway
----------------------------------------------------------
Cloudera, Inc. said in its Form 10-Q Report filed with the
Securities and Exchange Commission on June 4, 2021, for the
quarterly period ended April 30, 2021, that the company continues
to defend a consolidated class action suit entitled, In re
Cloudera, Inc. Securities Litigation, Lead Case No. 19CV348674.
On June 7, 2019, a purported class action complaint was filed in
the Superior Court of California, County of Santa Clara, entitled
Lazard v. Cloudera, Inc., et al., Case No. 19CV348674.
The complaint named as defendants Cloudera, thirteen individuals
who are current or former directors or officers of Cloudera, and
Intel Corporation.
Two substantially similar suits, entitled Franchi v. Cloudera,
Inc., et al., Case No. 19CV348790, and Cannizzo v. Cloudera, Inc.,
et al., Case No. 19CV348974, were subsequently filed in the same
court on June 11, 2019 and June 14, 2019, respectively.
The suits have been consolidated under the name In re Cloudera,
Inc. Securities Litigation, Lead Case No. 19CV348674 and the
consolidated amended complaint purports to assert claims under
Sections 11, 12(a)(2) and 15 of the Securities Act of 1933 on
behalf of all persons who acquired Cloudera stock pursuant or
traceable to the S-4 registration statement filed in connection
with Cloudera's January 2019 merger with Hortonworks. The
consolidated amended complaint alleges that the registration
statement contained untrue statements of material fact and omitted
material facts. Plaintiffs seek, among other things, an award of
damages and attorneys' fees and costs.
On July 1, 2020, the court overruled Cloudera's demurrer to the
consolidated amended complaint. On August 18, 2020, a purported
shareholder class action captioned Stahl v. Cloudera, Inc., et al.,
Case No. 20CV369480 was filed in the Superior Court of California,
County of Santa Clara, and was subsequently consolidated into the
lead case.
On November 5, 2020, the court entered a stipulated order
certifying a class consisting of all persons who acquired Cloudera
common stock in exchange for Hortonworks securities pursuant to the
registration statement and prospectus issued in connection with
Cloudera's January 2019 merger and acquisition of Hortonworks.
A further case management conference is currently scheduled for
June 9, 2021. Cloudera believes that the allegations in the
lawsuits are without merit.
Cloudera, Inc. provides platform for machine learning and analytics
in the United States, Europe, and Asia. The company operates
through two segments, Subscription and Services. Cloudera, Inc. was
founded in 2008 and is headquartered in Palo Alto, California.
COINBASE GLOBAL: Suspended Account Holders File Class Action
------------------------------------------------------------
Arnab Shome, writing for Finance Magnates, reports that Coinbase,
the crypto exchange that recently went public, is facing a
class-action lawsuit in the United States which has been brought by
users whose accounts were suspended by the exchange.
Filed by six plaintiffs at a California district court, the lawsuit
alleges that the San Francisco-headquartered crypto exchange has
wrongfully suspended their accounts for several months.
"Plaintiffs and Putative Class Members that Defendant locked out of
their accounts or denied access to their funds were often unable to
access their accounts for long periods of time, including but not
limited to a span of a month or more," the lawsuit stated.
Additionally, they alleged that their accounts were suspended after
they made deposits to the exchange and could not even access their
funds. One of the plaintiffs specified that he deposited $30,000 to
purchase XRP, but later could not access his account as it was
showing an error with invalid login details.
"Plaintiffs and Putative Class Members who were locked out of their
accounts and/or deprived of access to their funds suffered a
diminution in the value of their cryptocurrency upon eventually
being granted access to such accounts," the complaint added.
Moreover, the defendants pointed out the incompetence of the
exchange's customer support services and are seeking $5 million in
compensation.
A Dent In Reputation
Coinbase is indeed the largest US cryptocurrency exchange. Despite
its reputation, it is not a stranger to lawsuits. Last year, the
company settled a legal complaint filed by the victims of the
now-defunct crypto exchange, Cryptsy for around $1 million.
Though a Coinbase spokesperson said that the exchange is looking
into the fresh allegations, it is to be seen in the coming days if
the class-action lawsuit can stand in court or not. [GN]
COMMONWEALTH ELECTRICAL: Underpays Inspectors, Bellinger Suit Says
------------------------------------------------------------------
ROBERT BELLINGER, FRANK BONCORE, RAYNE DEGRE, STEVE LOMISON, and
TERRY MAYS, individually and on behalf of all others similarly
situated, Plaintiffs v. COMMONWEALTH ELECTRICAL INSPECTION
SERVICES, INC., Defendant, Case No. 1:21-cv-00719 (W.D.N.Y., June
8, 2021) is a class action against the Defendant for breach of the
implied covenant of good faith and fair dealing, unjust enrichment,
and violations of the New York Labor Law including failure to pay
wages for all hours worked, failure to comply with notice and
recordkeeping requirements, and failure to provide accurate wage
statements.
The Plaintiffs worked for the Defendants as electrical inspectors
at multiple locations in New York at any time between 2007 and
2020.
Commonwealth Electrical Inspection Services, Inc. is a national
construction inspection company, with its headquarters located in
the Commonwealth of Pennsylvania at 170 Doe Run Road in Manheim,
Pennsylvania. [BN]
The Plaintiffs are represented by:
Samuel Alba, Esq.
FRIEDMAN & RANZENHOFER, P.C.
74 Main Street
P.O. Box 31
Akron, NY 14001
Telephone: (716)-542-5444
- and –
Harold L. Lichten, Esq.
Sarah R. Schalman-Bergen, Esq.
LICHTEN & LISS-RIORDAN, P.C.
729 Boylston Street, Suite 2000
Boston, MA 02116
Telephone: (617) 994-5800
CONAGRA FOODS: Final Approval of Class Deal in Briseno Reversed
---------------------------------------------------------------
In the case, ROBERT BRISENO; CHRISTI TOOMER; KELLY McFADDEN; JANETH
RUIZ; BRENDA KREIN; ALEXIS JUSTAK; LEONORA ULITSKY; ANNE COWAN;
JULIE PALMER; PATTY BOYER; NECLA MUSAT; PAULINE MICHAEL; RONA
JOHNSTON; CHERI SHAFSTALL; JILL CROUCH; ERIKA HEINS; MAUREEN TOWEY;
MICHELE ANDRADE; ANITA WILLMAN; DEE HOPPER-KERCHEVAL; LIL
MARIE-BIRR, individually and on behalf of all others similarly
situated, Plaintiffs-Appellees v. M. TODD HENDERSON,
Objector-Appellant v. CONAGRA FOODS, INC., Defendant-Appellee, Case
No. 19-56297 (9th Cir.), the U.S. Court of Appeals for the Ninth
Circuit reversed the district court's approval of the settlement.
For many years, ConAgra, then-owner of Wesson Oil, labeled that
product as "100% Natural." In 2011, Robert Briseno and others sued
ConAgra, alleging that "100% Natural" was misleading because Wesson
Oil contains ingredients made from genetically modified organisms
("GMOs").
Three years later, the Plaintiffs sought class certification.
Relying on the expert report of Colin B. Weir, they argued that
they overpaid for Wesson Oil based on the "100% Natural" label.
ConAgra responded that its market research showed that less than 3%
of consumers bought the product because of that label. Although
Weir testified that hedonic regression could quantify the supposed
price premium charged for that label, he did not try to calculate
it at first.
Unsurprisingly, ConAgra then challenged the admissibility of Weir's
report. Enlisting its own expert, ConAgra asserted that historical
price data showed that the label did not affect the price of Wesson
Oil. According to ConAgra, if the public had cared about the "100%
Natural" claim, then the price of Wesson Oil should have declined
after ConAgra removed that claim from the product's label. The
district court agreed, denying the Plaintiffs' first certification
request.
Still hoping to strike oil, the Plaintiffs filed an amended motion
for class certification. This time, however, they supplemented
Weir's expert material with a supporting opinion by Dr. Elizabeth
Howlett. Together, their experts asserted that consumers paid a
2.28% price premium for the allegedly mislabeled products.
Furthermore, Dr. Howlett suggested that a conjoint analysis could
help determine how consumers value "GMO content." The Plaintiffs,
however, never submitted that conjoint analysis. ConAgra, again,
sought to strike the Plaintiffs' experts and opposed class
certification.
This time, the court denied ConAgra's motions and certified a Rule
23(b)(3) damage class, though it refused to certify a 23(b)(2)
injunctive class for lack of standing. ConAgra twice pursued Rule
23(f) interlocutory review of class certification. It lost both
appeals and an attempt to seek certiorari. The parties began
settlement negotiations shortly after that.
Meanwhile, ConAgra agreed to sell Wesson Oil to The J.M. Smucker
Company in May 2017. About two months later, ConAgra voluntarily
removed the disputed label, and stopped marketing Wesson products
as "natural." It maintains that this litigation played no role in
either decision.
In early 2018, the Smucker deal hit an insurmountable regulatory
jam. Undeterred, ConAgra sought a new suitor for Wesson. At the
same time, it engaged in mediation with the certified class. The
district court assigned Magistrate Judge McCormick to help the
parties grease the wheels of justice, and they emerged with an
agreement-in-principle in November 2018. A month later, ConAgra
agreed to sell Wesson to Richardson International. The deal closed
in February 2019. The next month, the parties proposed a
settlement agreement.
ConAgra agreed to provide, in relevant part: (a) $0.15 for each
unit of Wesson Oils purchased to households submitting valid claim
forms (to a maximum of 30 units without proof of purchase, and
unlimited units with proof of purchase) (b) an additional fund of
$575,000 to be allocated to New York and Oregon class members
submitting valid claim forms, as compensation for statutory damages
under those states' consumer protection laws, and (c) an additional
fund of $10,000 to compensate those in all classes submitting valid
proof of purchase receipts more than 30 purchases, at $0.15 for
each such purchase above 30, with Class Counsel paying any
non-funded claims (i.e., claims above the $10,000 provided by
ConAgra) from any attorneys' fees awarded in the case.
With a class of nearly 15 million consumers, ConAgra claimed that
it theoretically exposed itself to nearly $67.5 million in claims
if every consumer submitted a claim. The settlement agreement
established a fund on a claims-made basis -- i.e., ConAgra would
pay out for only those claims submitted by consumers. The
settlement, however, did not require ConAgra to identify or provide
direct notice to class members.
The settlement agreement also provided injunctive relief: Should
ConAgra have seller's remorse and decide to reacquire the Wesson
brand in the future, it agreed not to advertise or market Wesson
Oil as "natural," unless the FDA permits the use of the term to
describe oil derived from GMO seeds. Relying on Mr. Weir's
analysis, the parties asserted that the "the value of the
injunctive relief to the Classes" is $27 million.
Finally, the settlement stated that the Plaintiffs would request --
and ConAgra would not contest -- $6.85 million in attorneys' fees
and expenses. That amount would come directly from ConAgra and be
separate from the class settlement fund. If the court, however,
sliced the agreed-upon attorneys' fees, that reduction would revert
to ConAgra rather than the class.
The parties, thus, represented that their settlement could
theoretically be worth over $100 million -- around $95 million in
value to the class ($67.5 million in potential payout and $27
million in injunctive relief value), along with another $6.85
million for the attorneys. Yet, when the dust settled, ConAgra
shelled out less than $8 million, with a mere $1 million of that
going to the class. The Class counsel's fees swallowed $5.85
million, and expenses devoured another $978,671. Of the 15 million
class members, barely more than one-half of 1% of them submitted a
claim.
Only one class member opted out of the settlement. M. Todd
Henderson, a law professor at the University of Chicago, objected
to the settlement under Rule 23(e), arguing that attorneys hoarded
88% of the class's actual recovery. He asserted that the Ninth
Circuit's precedent required it to treat the settlement as a
constructive common fund (i.e., the settlement effectively
establishes one common fund to pay out both the class members and
their counsel). Henderson also contended that the settlement's
"clear sailing" provision (i.e., ConAgra's refusal to challenge the
agreed-upon attorney's fees) and "kicker" clause (i.e., any
reduction in fees reverting to ConAgra, not the class members)
raised the specter of collusion. He also objected to the stipulated
value of the injunctive relief, describing it as "illusory."
Likewise, Henderson castigated Mr. Weir, stating that his failure
to conduct a price comparison rendered his opinion unreliable.
The Plaintiffs sought final approval of the settlement in July
2019. Based on Mr. Weir's declaration, they valued ConAgra's label
change at $19,080,000. They also contended that, if Wesson's new
owner, Richardson, continued to refrain from labeling the product
as "natural" for even a year, the value of the injunction would
surge to $30.2 million. And for each year that Richardson did not
label Wesson Oil as "natural," the class would obtain an annual
benefit of over $11 million, according to Mr. Weir. The Plaintiffs
argued that the fee request "represented approximately 25.4% of the
parties' estimated value of the injunctive relief or 23% of the
Plaintiffs' conservative estimate." They also calculated their own
lodestar fee at around $11.499 million.
When the claims deadline passed, class members made 97,880 timely
claims for $418,919, a shadow of the $67.5 million potential
liability that ConAgra touted in seeking approval of the
settlement. Even with separately funded pools for New York and
Oregon, ConAgra would pay class members a maximum of $993,919. Out
of a class of 15 million consumers, fewer than 100,000 would
receive a single cent.
The district court held its final fairness hearing in October 2019.
Henderson and the class counsel remained loggerheads on almost
every issue. The parties disputed whether Henderson as an
objector, or the Plaintiffs as proponents, bore the burden of
establishing that the settlement satisfied Rule 23(e). Henderson
argued that the "kicker" demonstrated ConAgra's willingness to
settle for roughly $8 million, and that the class counsel bargained
away absent class members' rights in exchange for much of the
settlement.
The district court disagreed. It maintained that the record in the
case sufficiently dispels the possibility that the class counsel
bargained away a benefit to the class in exchange for their own
interests. Henderson timely appealed.
The Ninth Circuit opines that the parties crammed into their
settlement agreement a bevy of questionable provisions that reeks
of collusion at the expense of the class members: The Class counsel
will receive seven times more money than the class members; an
injunction touted by an expert as worth tens of millions of dollars
appears worthless, the Defendant agrees not to challenge the
Plaintiffs' attorneys' fees amount; any reduction in those fees by
the court reverts to the Defendant; and on and on.
While courts should not casually second-guess class settlements
brokered by the parties, the Ninth Circuit states that they should
not greenlight them, either, just because the parties profess that
their dubious deal is "all right, all right, all right." It
reverses the district court's approval of the class settlement
because the agreement raises a squadron of red flags billowing in
the wind and begging for further review. It holds that under the
newly revised Rule 23(e)(2) standard, courts must scrutinize
settlement agreements -- including post-class certification
settlements -- for potentially unfair collusion in the distribution
of funds between the class and their counsel. The case is remanded
for further proceedings consistent with the Ninth Circuit's
opinion.
A full-text copy of the Court's June 1, 2021 Opinion is available
at https://tinyurl.com/c3mza3z8 from Leagle.com.
Theodore H. Frank -- ted.frank@hlli.org -- (argued) and Melissa A.
Holyoak, Center for Class Action Fairness, Hamilton Lincoln Law
Institute, in Washington, D.C., for Objector-Appellant.
Samuel Issacharoff (argued), in New York City; Robert Klonoff,
Portland, Oregon; Ariana J. Tadler -- atadler@milberg.com -- A.J.
de Bartolomeo, and Brian R. Morrison, Tadler Law LLP, in New York
City; Adam J. Levitt -- alevitt@gelaw.com -- and Amy E. Keller --
akeller@dlcfirm.com -- DiCello Levitt Gutzler LLC, in Chicago,
Illinois; David Azar -- dazar@milberg.com -- Milberg Phillips
Grossman LLP, in Irvine, California; for Plaintiffs-Appellees.
Angela M. Spivey -- aspivey@mcquirewoods.com -- (argued) Alston &
Bird LLP, in Atlanta, Georgia, for Defendant-Appellee.
Mark Brnovich, Attorney General; Oramel H. Skinner, Solicitor
General; Kate B. Sawyer, Assistant Solicitor General; Keena Patel,
Assistant Attorney General; Office of the Attorney General,
Phoenix, Arizona; Steve Marshall, Kevin G. Clarkson, Leslie
Rutledge, Lawrence G. Wasden, Curtis T. Hill Jr., Daniel Cameron,
Jeff Landry, Eric Schmitt, Dave Yost, Mike Hunter, Alan Wilson, and
Ken Paxton Attorneys General; as and for Amici Curiae Attorneys
General of Arizona, Alabama, Alaska, Arkansas, Idaho, Indiana,
Kentucky, Louisiana, Missouri, Ohio, Oklahoma, South Carolina, and
Texas.
CONNECTED PET: Fischler Files ADA Suit in E.D. New York
-------------------------------------------------------
A class action lawsuit has been filed against The Connected Pet
Company, LLC. The case is styled as Brian Fischler, Individually
and on behalf of all other persons similarly situated v. The
Connected Pet Company, LLC doing business as: Toto, Case No.
1:21-cv-03285 (E.D.N.Y., June 10, 2021).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Toto Pet Insurance -- http://www.totopetinsurance.com/-- offers
pet health insurance plans which are offered and marketed by The
Connected Pet Company, LLC.[BN]
The Plaintiff is represented by:
Douglas Brian Lipsky, Esq.
LIPSKY LOWE LLP
420 Lexington Avenue, Suite 1830
New York, NY 10170
Phone: (212) 392-4772
Fax: (212) 444-1030
Email: doug@lipskylowe.com
CONTINENTAL CASUALTY: Loses Bid to Dismiss Legacy Sports Class Suit
-------------------------------------------------------------------
In the case, LEGACY SPORTS BARBERSHOP LLC, et al., Plaintiffs v.
CONTINENTAL CASUALTY COMPANY, Defendant, Case No. 20 C 4149 (N.D.
Ill.), Judge Charles P. Kocoras of the U.S. District Court for the
Northern District of Illinois, Eastern Division, denies the
Defendant's Motion to Dismiss the Plaintiffs' First Amended Class
Action Complaint.
The Plaintiffs are a barbershop, barbering school, and upscale hair
salon that have similar insurance policies with Continental.
Legacy Barbershop and Legacy Academy are located in Virginia Beach,
Virginia, while Panach is found in Santa Monica, California.
The Plaintiffs bring the action seeking coverage under the Policies
for losses suffered because of COVID-19. They seek coverage under
the Policies' Business Income and Extra Expense coverage
provisions, which supply coverage for losses as the result of
"direct physical loss of or damage to the Covered Property." The
Plaintiffs also seek coverage under the Civil Authority coverage
provision, which provides coverage for losses as the result of the
government prohibiting access to the insured's premises due to
"direct physical loss of or damage to" another property. Finally,
they seek coverage under a "Sue and Labor" provision, which
requires the insured to mitigate damages after a covered loss and
keep a record of expenses "for consideration in the settlement of a
claim."
The Plaintiffs allege that the presence of COVID-19 on their
premises required repairs and alterations to their properties.
Specifically, they allege that they installed a new air filtration
system, built a new outdoor patio to accommodate patrons outside,
installed social distancing barriers and germ sanitation stations,
and removed 60% of their workstations to allow for social
distancing indoors. Additionally, the Plaintiffs allege that the
presence of COVID-19 at properties other than their own
necessitated shutdown orders by the state governments, which
prohibited access to their properties. The Plaintiffs allege that
they lost business income and incurred extra expenses because of
the presence of COVID-19 in their businesses, the necessary
alterations, and state mandated closure orders.
Based on these events, the Plaintiffs filed the FAC seeking a
declaratory judgment that their losses are covered under the
Business Income, Extra Expense, Civil Authority, and Sue and Labor
provisions of the Policies. Additionally, they allege that
Continental breached the Policies by denying coverage under those
provisions.
Continental now moves to dismiss the Plaintiffs' First Amended
Class Action Complaint ("FAC") under Federal Rule of Civil
Procedure 12(b)(6). Continental argues that each of the
Plaintiffs' claims must be dismissed because there was no "physical
loss of or damage to" the properties. It also argues that any
losses caused by a virus are excluded under the Policies.
Legal Analysis
I. Loss of or Damage to the Properties
Each of the Plaintiffs' claims hinges upon the meaning of "direct
physical loss of or damage to" the Properties. Continental argues
that there is no "loss of or damage to" the properties because that
phrase requires physical damage or alteration, and Continental says
the Plaintiffs do not allege physical damage or alteration to the
properties. The Plaintiffs respond that allegations of physical
damage or alteration are not needed and, even if they are,
Plaintiffs have alleged just that.
While he agrees with Continental that the Policies' language
requires physical damage or alteration, Judge Kocoras believes the
Plaintiffs have alleged the requisite physical damage and
alteration. He says the Plaintiffs allege more than just loss of
use. They allege that COVID-19 was present on their properties and
that their properties underwent physical alterations. Thus, the
Judge believes that the Plaintiffs have sufficiently alleged that
the Properties underwent a "distinct, demonstrable, physical
alteration" and therefore suffered "physical loss of or damage to"
the Properties. T he Motion to Dismiss on this basis is thus
denied.
II. Policy Exclusion
The Defendant next argues that any losses due to COVID-19 are
excluded from coverage.
Judge Kocoras explains that the burden is on the insurer to
establish that a policy exclusion applies, and its applicability
must be definite and free from doubt. In the case, he does not
believe that the policy language is "clear, sweeping, and
all-encompassing" or that its applicability is "definite and free
from doubt." The Policies do not specifically exclude from
coverage damage caused by viruses, but instead exclude from
coverage damage caused by the "presence, growth, proliferation,
spread or any activity of 'fungi,' wet or dry rot, or 'microbes.'"
It is not clear whether "microbe" as defined under the Policies
includes a virus such as SARS-CoV-2 because that virus, of course,
can spread from person to person. The Judge therefore does not
believe Continental has established that the claims are excluded
from coverage at this stage.
In sum, Judge Kocoras believes that the Plaintiffs have alleged
that they may be entitled to coverage under the Policies. He
emphasizes that the Plaintiffs have merely pled enough facts to
proceed with discovery. Discovery will shed light on the merits of
the Plaintiffs' allegations, including the nature and extent of
COVID-19 on their premises. Accordingly, Continental's Motion to
Dismiss is denied.
Conclusion
For the reasons he stated, Judge Kocoras denies Continental's
motion to dismiss. Continental must answer the FAC within 21 days
of the Order. Telephonic status is set for July 13, 2021 at 10:40
a.m. It is so ordered.
A full-text copy of the Court's June 1, 2021 Order is available at
https://tinyurl.com/2wd277dz from Leagle.com.
CORNERSTONE BUILDING: Ramirez Wage-and-Hour Suit Goes to E.D. Cal.
------------------------------------------------------------------
The case styled CLAUDIA RAMIREZ, ESMERALDA LIZBETH MENDEZ LOZANO,
LILIAN CABRERA, ANA ROSA MENDOZA, ALICIA FERNANDEZ, DULCE NIETO,
ROSA HERNANDEZ, individually and on behalf of all others similarly
situated v. CORNERSTONE BUILDING BRANDS, PLY GEM WINDOWS, PLY GEM
PACIFIC WINDOWS CORPORATION, PLY GEM RESIDENTIAL SOLUTIONS,
SIMONTON DOORS & WINDOWS, and DOES 1 through 100, inclusive, Case
No. 34-2021-00298527-CU-OE-GDS, was removed from the Superior Court
of the State of California for the County of Sacramento to the U.S.
District Court for the Eastern District of California on June 8,
2021.
The Clerk of Court for the Eastern District of California assigned
Case No. 1:21-at-00626 to the proceeding.
The case arises from the Defendants' alleged violations of the
California Labor Code and the California Business and Professions
Code including failure to pay minimum wages and overtime wages for
time worked, failure to provide duty-free meal and rest periods,
failure to pay wages due and owing during employment and upon
termination, failure to provide itemized wage statements and to
maintain requisite payroll records, failure to reimburse business
expenses, and unfair business practices.
Cornerstone Building Brands is a manufacturer of exterior building
products, headquartered in Cary, North Carolina.
Ply Gem Windows is an exterior home building products manufacturer,
headquartered in Cary, North Carolina.
Ply Gem Pacific Windows Corporation is an exterior home building
products manufacturer, headquartered in Auburn, Washington.
Ply Gem Residential Solutions is an exterior home building products
manufacturer, headquartered in Cary, North Carolina.
Simonton Doors & Windows is a replacement window and patio doors
manufacturer based in Cary, North Carolina. [BN]
The Defendants are represented by:
Martin D. Bern, Esq.
C. Hunter Hayes, Esq.
David W. Moreshead, Esq.
MUNGER, TOLLES & OLSON LLP
350 South Grand Avenue
Fiftieth Floor
Los Angeles, CA 90071-3426
Telephone: (213) 683-9100
Facsimile: (213) 687-3702
E-mail: martin.bern@mto.com
hunter.hayes@mto.com
david.moreshead@mto.com
COSTCO WHOLESALE: Appeal on Ruling to Remand Nevarez Suit Pending
-----------------------------------------------------------------
Costco Wholesale Corporation said in its Form 10-Q Report filed
with the Securities and Exchange Commission on June 3, 2021, for
the quarterly period ended May 9, 2021, that the appeal on the
decision to remand the case, Nevarez v. Costco Wholesale Corp.
(Case No. 2:19-cv-03454; C.D. Cal.), is still pending.
In March 2019, employees filed a class action against the Company
alleging claims under California law for failure to pay overtime,
to provide meal and rest periods and itemized wage statements, to
timely pay wages due to terminating employees, to pay minimum
wages, and for unfair business practices.
Relief is sought under the California Labor Code, including civil
penalties and attorneys' fees.
Nevarez v. Costco Wholesale Corp. (Case No. 2:19-cv-03454; C.D.
Cal.).
The Company filed an answer denying the material allegations of the
complaint.
In December 2019, the court issued an order denying class
certification.
In January 2020, the plaintiffs dismissed their Labor Code claims
without prejudice, and the court remanded the action to state
court.
The remand is being appealed.
No further updates were provided in the Company's SEC report.
Costco Wholesale Corporation, together with its subsidiaries,
operates membership warehouses. It offers branded and private-label
products in a range of merchandise categories. The company was
formerly known as Costco Companies, Inc. Costco Wholesale
Corporation was founded in 1976 and is based in Issaquah,
Washington.
COSTCO WHOLESALE: Bid to Dismiss Soulek Putative Class Suit Pending
-------------------------------------------------------------------
Costco Wholesale Corporation said in its Form 10-Q Report filed
with the Securities and Exchange Commission on June 3, 2021, for
the quarterly period ended May 9, 2021, that the motion to dismiss
the putative class action suit entitled, Dustin S. Soulek v. Costco
Wholesale, et al., Case No. 20-cv-937, is pending.
On June 23, 2020, a putative class action was filed against the
Company, the Board of Directors, the Costco Benefits Committee and
others under the Employee Retirement Income Security Act, in the
United States District Court for the Eastern District of Wisconsin.
Dustin S. Soulek v. Costco Wholesale, et al., Case No. 20-cv-937.
The class is alleged to be beneficiaries of the Costco 401(k) plan
from June 23, 2014, and the claims are that the defendants breached
their fiduciary duties in the operation and oversight of the plan.
The complaint seeks injunctive relief, damages, interest, costs,
and attorneys' fees.
On September 11, 2020, the defendants filed a motion to dismiss the
complaint, and on September 21 the plaintiffs filed an amended
complaint, which the defendants have also moved to dismiss.
No further updates were provided in the Company's SEC report.
Costco Wholesale Corporation, together with its subsidiaries,
operates membership warehouses. It offers branded and private-label
products in a range of merchandise categories. The company was
formerly known as Costco Companies, Inc. Costco Wholesale
Corporation was founded in 1976 and is based in Issaquah,
Washington.
COSTCO WHOLESALE: Bid to Nix Edwards Labor Suit Pending
-------------------------------------------------------
Costco Wholesale Corporation said in its Form 10-Q Report filed
with the Securities and Exchange Commission on June 3, 2021, for
the quarterly period ended May 9, 2021, that the motion to dismiss
the case Edwards v. Costco Wholesale Corp. (Case No. 5:21-cv-00716:
C.D. Cal.), is pending.
In February 2021, a former employee filed a class action against
the Company alleging violations of California Labor Code regarding
payment of wages, meal and rest periods, wage statements,
reimbursement of expenses, payment of final wages to terminated
employees, and for unfair business practices. Edwards v. Costco
Wholesale Corp.
In May 2021, the Company filed a motion to dismiss the complaint.
Costco Wholesale Corporation, together with its subsidiaries,
operates membership warehouses. It offers branded and private-label
products in a range of merchandise categories. The company was
formerly known as Costco Companies, Inc. Costco Wholesale
Corporation was founded in 1976 and is based in Issaquah,
Washington.
COSTCO WHOLESALE: Consolidated Opioid-Related Litigation Underway
-----------------------------------------------------------------
Costco Wholesale Corporation said in its Form 10-Q Report filed
with the Securities and Exchange Commission on June 3, 2021, for
the quarterly period ended May 9, 2021, that the company continues
to defend a consolidated class action suit entitled, In re National
Prescription Opiate Litigation (MDL No. 2804) (N.D. Ohio).
In December 2017, the United States Judicial Panel on Multidistrict
Litigation consolidated numerous cases concerning the impacts of
opioid abuses filed against various defendants by counties, cities,
hospitals, Native American tribes, third-party payors, and others.
In re National Prescription Opiate Litigation (MDL No. 2804) (N.D.
Ohio).
Included are federal cases that name the Company, including actions
filed by counties and cities in Michigan, New Jersey, Oregon,
Virginia and South Carolina and a third-party payor in Ohio, class
actions filed on behalf of infants born with opioid-related medical
conditions in 40 states, and class actions and individual actions
filed on behalf of individuals seeking to recover alleged increased
insurance costs associated with opioid abuse in 42 states and
American Samoa.
Similar actions were commenced against the Company in state courts
in Utah (2019) and Texas (2021). Claims against the Company in
state courts in New Jersey, Oklahoma, and Arizona have been
dismissed.
The Company is defending all of these matters.
Costco Wholesale Corporation, together with its subsidiaries,
operates membership warehouses. It offers branded and private-label
products in a range of merchandise categories. The company was
formerly known as Costco Companies, Inc. Costco Wholesale
Corporation was founded in 1976 and is based in Issaquah,
Washington.
COSTCO WHOLESALE: Dismissal of Johnson-Chen Suit Under Appeal
-------------------------------------------------------------
Costco Wholesale Corporation said in its Form 10-Q Report filed
with the Securities and Exchange Commission on June 3, 2021, for
the quarterly period ended May 9, 2021, that the appeal on the
order of dismissal in the consolidated "Johnson" and "Chen" suit,
is pending.
The Company and its CEO and CFO are defendants in putative class
actions brought on behalf of shareholders who acquired Company
stock between June 6 and October 25, 2018. Johnson v. Costco
Wholesale Corp., et al. (W.D. Wash.; filed Nov. 5, 2018); Chen v.
Costco Wholesale Corp., et al. (W.D. Wash.; filed Dec. 11, 2018).
The complaints allege violations of the federal securities laws
stemming from the Company's disclosures concerning internal control
over financial reporting. They seek unspecified damages, equitable
relief, interest, and costs and attorneys' fees.
On January 30, 2019, an order was entered consolidating the
actions, and a consolidated amended complaint was filed on April
16, 2019.
On November 26, 2019, the court entered an order dismissing the
consolidated amended complaint and granting the plaintiffs leave to
file a further amended complaint.
A further amended complaint was filed on March 9, which the court
dismissed with prejudice on August 19, 2020.
An appeal in the Ninth Circuit is pending.
No further updates were provided in the Company's SEC report.
Costco Wholesale Corporation, together with its subsidiaries,
operates membership warehouses. It offers branded and private-label
products in a range of merchandise categories. The company was
formerly known as Costco Companies, Inc. Costco Wholesale
Corporation was founded in 1976 and is based in Issaquah,
Washington.
DELL TECH: Discovery Ongoing in Class V Transaction Related Suit
----------------------------------------------------------------
Dell Technologies Inc. said in its Form 10-Q Report filed with the
Securities and Exchange Commission on June 7, 2021, for the
quarterly period ended April 30, 2021, that discovery is ongoing in
the consolidated putative class action suit entitled, In Re Dell
Class V Litigation (Consol. C.A. No. 2018-0816-JTL).
On December 28, 2018, the Company completed a transaction (the
"Class V transaction") in which it paid $14.0 billion in cash and
issued 149,387,617 shares of its Class C Common Stock to holders of
its Class V Common Stock in exchange for all outstanding shares of
Class V Common Stock. The non cash consideration portion of the
Class V transaction totaled $6.9 billion. As a result of the Class
V transaction, the tracking stock feature of the Company's capital
structure associated with the Class V Common Stock was terminated.
The Class C Common Stock is traded on the NYSE.
Four purported stockholders brought putative class action
complaints arising out of the Class V transaction.
The actions were captioned Hallandale Beach Police and Fire
Retirement Plan v. Michael Dell et al. (Civil Action No.
2018-0816-JTL), Howard Karp v. Michael Dell et al. (Civil Action
No. 2019-0032-JTL), Miramar Police Officers' Retirement Plan v.
Michael Dell et al. (Civil Action No. 2019-0049-JTL), and
Steamfitters Local 449 Pension Plan v. Michael Dell et al. (Civil
Action No. 2019-0115-JTL).
The four actions were consolidated in the Delaware Chancery Court
into In Re Dell Class V Litigation (Consol. C.A. No.
2018-0816-JTL), which names as defendants the Company's board of
directors and certain stockholders of the Company, including
Michael S. Dell.
The plaintiffs generally allege that the defendants breached their
fiduciary duties to the former holders of Class V Common Stock in
connection with the Class V transaction by allegedly causing the
Company to enter into a transaction that favored the interests of
the controlling stockholders at the expense of such former
stockholders. The plaintiffs seek, among other remedies, a judicial
declaration that the defendants breached their fiduciary duties and
an award of damages, fees, and costs.
The plaintiffs filed an amended complaint in August 2019 making
substantially similar allegations to those described above. The
defendants filed a motion to dismiss the action in September 2019.
The court denied the motion in June 2020 and the case is currently
in the discovery phase.
Trial is currently scheduled to begin on May 3, 2022.
Dell Technologies Inc. provides computer products. The Company
offers laptops, desktops, tablets, workstations, servers, monitors,
printers, gateways, software, storage, and net working products.
Dell Technologies serves customers worldwide. Dell Technologies
Inc. was founded in 1984 and is headquartered in Round Rock,
Texas.
DELL TECH: Pivotal Software Acquisition Related Suit Underway
-------------------------------------------------------------
Dell Technologies Inc. said in its Form 10-Q Report filed with the
Securities and Exchange Commission on June 7, 2021, for the
quarterly period ended April 30, 2021, that the company, VMware,
Inc. Michael S. Dell, and certain officers of Pivotal Software,
Inc., continues to defend a consolidated putative class action suit
entitled, In re: Pivotal Software, Inc. Stockholders Litigation
(Civil Action No. 2020-0440-KSJM).
On December 30, 2019, VMware, Inc. completed its acquisition of
Pivotal Software, Inc. from the Company by merger.
Two purported stockholders brought putative class action complaints
arising out of VMware, Inc.'s acquisition of Pivotal Software, Inc.
on December 30, 2019.
The two actions were consolidated in the Delaware Chancery Court
into In re: Pivotal Software, Inc. Stockholders Litigation (Civil
Action No. 2020-0440-KSJM).
The complaint names as defendants the Company, VMware, Inc.,
Michael S. Dell, and certain officers of Pivotal.
The plaintiffs generally allege that the defendants breached their
fiduciary duties to the former holders of Pivotal Class A Common
Stock in connection with VMware, Inc.'s acquisition of Pivotal by
allegedly causing Pivotal to enter into a transaction that favored
the interests of Pivotal's controlling stockholders at the expense
of such former stockholders.
The plaintiffs seek, among other remedies, a judicial declaration
that the defendants breached their fiduciary duties and an award of
damages, fees, and costs.
Dell Technologies Inc. provides computer products. The Company
offers laptops, desktops, tablets, workstations, servers, monitors,
printers, gateways, software, storage, and net working products.
Dell Technologies serves customers worldwide. Dell Technologies
Inc. was founded in 1984 and is headquartered in Round Rock,
Texas.
DELL TECHNOLOGIES: Faces Suit Over Laptop Upgradeability Issues
---------------------------------------------------------------
Chandraveer Mathur, writing for NewsBytes, reports that Apple makes
it clear that to get an upgrade, customers have to buy a new
MacBook. Meanwhile, in 2019, Dell's subsidiary Alienware launched
the Area-51m R1 laptop claiming that it offered "unprecedented
upgradeability".
A distraught customer has filed a class-action suit against Dell
over the "false and misleading" marketing that promised the
laptop's core components could be upgraded in the future.
2020 laptop components weren't available as upgrades for 2019
variant
Dell's Alienware Area-51m debuted at CES 2019 with 8th and
9th-generation Intel CPUs (including the i7-8700, i7-9700K, and
i9-9900K processors) mated to NVIDIA's RTX 2070 and RTX 2080 GPUs.
When the Area-51m R2 laptop launched in 2020, its internals
including the 10th generation Intel CPUs, RTX 2070 Super, and RTX
2080 Super GPUs weren't available as upgrades for the R1.
Dell promised support for Intel processors compatible with Z390
chipset
Back in 2019, Dell specified that the laptop will only support
Intel processors that use its Z390 motherboard chipset. The chipset
is compatible with the processors that the R1 shipped with, but
Intel's new 10th generation processors used a new
400-series chipset.
Intel usually releases a new motherboard chipset and processor
pairing every year, and that is not in Dell's control.
Claim applies to low-end laptops upgraded using higher-spec
siblings' parts
Thanks to Intel's annual chipset redesign, the R1 can't borrow the
R2's components.
Coming to the GPUs, Dell told The Verge in 2019 that it would "like
to be able to say yes (to upgradeability); right now, we have no
idea."
Essentially, Dell's "unprecedented upgradeability" claim holds good
for upgrading low-end R1 laptops using components available for the
higher-end R1 laptops.
Suit alleges that Dell knew laptop couldn't accommodate future
components
Robert Felter's lawsuit alleges that since Dell works closely with
Intel and NVIDIA, it should have known the product specifications
prior to public launch.
"With full knowledge that the design of the Area-51m R1 could not
accommodate future Intel and NVIDIA chipsets, Dell launched a
global campaign to mislead the public that the Area-51m R1 was
upgradeable," the suit alleges.
Dell didn't disclose that highest-spec laptops wouldn't be
upgradeable
In an email, Felter's lawyer told Tom's Hardware that "Dell's
advertisement to the public didn't place any restrictions on the
upgradeability of the laptop".
"They also never disclosed that those with the highest-spec CPU
and/or GPU that their device would not be upgradeable," the lawyer
added.
Robert Felter is reportedly asking the court for a jury trial.
Plaintiff is seeking damages, attorney fees for himself, other
customers
The Verge reported that Alienware customer Robert Felter has sued
the company in California court. Felter alleged that Dell
"intentionally misled and deceived" buyers. He is seeking damages,
relief, and attorney fees for himself and affected customers in
California and eight other states. [GN]
DHL EXPRESS: Martin Sues Over Misleading Delivery Charges
---------------------------------------------------------
NOAM MARTIN, individually and on behalf of all others similarly
situated, Plaintiff v. DHL EXPRESS (USA), INC., Defendant, Case No.
MER-L-001161-21 (N.J. Super., June 2, 2021) is an action
challenging the Defendant's deceptive uniform policy in the
delivery of goods purchased from retailers outside the United
States which are delivered by DHL to recipients inside the US.
According to the complaint, under the Defendant's uniform policy,
DHL sends the recipient a written notice imposing an additional
charge which the notice falsely represents to be reimbursement for
import duties advanced by DHL, but which in reality includes an
undisclosed and unauthorized $17 service charge imposed by DHL
which is not any type of import duty, tax, or other
government-mandated charge or fee.
In actuality, the written description of the additional charge
demanded in such DHL email notices as a "duty" and "import duty"
advanced by DHL is allegedly false, deceptive and misleading.
Dhl Express (USA), Inc., doing business as DHL Express, provides
mail services. The Company offers addressed letters, parcels, air
and ocean freight, contract logistics, warehousing and
distribution, and packages services. [BN]
The Plaintiff is represented by:
Stephen P. DeNittis, Esq.
DeNITTIS OSEFCHEN PRINCE, P.C.
525 Route 73 North, Suite 410
Marlton, NJ 08053
Telephone: (856) 797-9951
E-mail: sdenittis@denittislaw.com
DILLY KEY: Acosta Suit Claims Unpaid Wages for Restaurant Staff
---------------------------------------------------------------
GISELLE ACOSTA, on behalf of herself and all others similarly
situated, Plaintiff v. DILLY KEY RESTAURANT HOLDING, LLC,
Defendant, Case No. 4:21-cv-10056 (S.D. Fla., June 8, 2021) is a
class action against the Defendant for violations of the Fair Labor
Standards Act by failing to pay the Plaintiff and all others
similarly situated restaurant servers and bartenders appropriate
minimum wages and overtime pay for all hours worked in excess of 40
hours in a workweek.
Ms. Acosta has been employed by the Defendant as a restaurant
server and bartender since January 2020.
Dilly Key Restaurant Holding, LLC is an owner and operator of
multiple restaurants located at 103900 Overseas Highway, Key Largo,
Florida. [BN]
The Plaintiff is represented by:
Jordan Richards, Esq.
Jake Blumstein, Esq.
USA EMPLOYMENT LAWYERS-JORDAN RICHARDS, PLLC
805 E. Broward Blvd. Suite 301
Fort Lauderdale, FL 33301
Telephone: (954) 871-0050
E-mail: Jordan@jordanrichardspllc.com
Jake@jordanrichardspllc.com
ECWID INC: Pascual Files ADA Suit in S.D. New York
--------------------------------------------------
A class action lawsuit has been filed against Ecwid, Inc. The case
is styled as Domingo Pascual, on behalf of himself and all others
similarly situated v. Ecwid, Inc., Case No. 1:21-cv-05145
(S.D.N.Y., June 10, 2021).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Ecwid -- https://www.ecwid.com/ -- is a software-as-a-service
e-commerce company that provides online selling solutions for small
businesses.[BN]
The Plaintiff is represented by:
Joseph H. Mizrahi, Esq.
COHEN & MIZRAHI LLP
300 Cadman Plaza West, 12th Floor
Brooklyn, NY 11201
Phone: (929) 575-4175
Fax: (929) 575-4195
Email: joseph@cml.legal
EDIE PARKER: Pascual Files ADA Suit in S.D. New York
----------------------------------------------------
A class action lawsuit has been filed against Edie Parker LLC. The
case is styled as Domingo Pascual, on behalf of himself and all
others similarly situated v. Edie Parker LLC, Case No.
1:21-cv-05147 (S.D.N.Y., June 10, 2021).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Edie Parker -- https://edie-parker.com/ -- is a collection of
acrylic clutch handbags and home decor, founded and designed by
Brett Heyman.[BN]
The Plaintiff is represented by:
Joseph H. Mizrahi, Esq.
COHEN & MIZRAHI LLP
300 Cadman Plaza West, 12th Floor
Brooklyn, NY 11201
Phone: (929) 575-4175
Fax: (929) 575-4195
Email: joseph@cml.legal
ENTERPRISE RENT-A-CAR: Fails to Pay Proper Wages, Elias Alleges
---------------------------------------------------------------
AMBROSE ELIAS, on behalf of himself and all others similarly
situated, Plaintiff v. ENTERPRISE RENT-A-CAR COMPANY OF LOS
ANGELES, LLC, and DOES 1-50, inclusive, Defendants, Case No.
21STCV21278 (Cal. Super., Los Angeles Cty., June 8, 2021) is a
class action against the Defendants for violations of the
California Labor Code including failure to pay for all hours
worked, including overtime hours worked; failure to provide meal
period; failure to provide rest period; failure to reimburse
business expenses; failure to timely pay all wages owed; and
failure to provide accurate wage statements and maintain accurate
payroll records.
The Plaintiff was employed by the Defendant as a non-exempt
employee until December 2, 2019.
Enterprise Rent-A-Car Company of Los Angeles, LLC is a provider of
car rental services based in California. [BN]
The Plaintiff is represented by:
Nazo Koulloukian, Esq.
Hilary Silvia, Esq.
KOUL LAW FIRM
3435 Wilshire Blvd., Suite 1710
Los Angeles, CA 90010
Telephone: (213) 761-5484
Facsimile: (818) 561-3938
E-mail: nazo@koullaw.com
hilary@koullaw.com
FIGURE TECHNOLOGIES: Pascual Files ADA Suit in S.D. New York
------------------------------------------------------------
A class action lawsuit has been filed against Figure Technologies,
Inc. The case is styled as Domingo Pascual, on behalf of himself
and all others similarly situated v. Figure Technologies, Inc.,
Case No. 1:21-cv-05148 (S.D.N.Y., June 10, 2021).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Figure Technologies -- https://www.figure.com/ -- is an American
financial technology company that provides financial services using
blockchain technology.[BN]
The Plaintiff is represented by:
Joseph H. Mizrahi, Esq.
COHEN & MIZRAHI LLP
300 Cadman Plaza West, 12th Floor
Brooklyn, NY 11201
Phone: (929) 575-4175
Fax: (929) 575-4195
Email: joseph@cml.legal
FLORIDA HEALTH: 2nd Amended Doyle Suit Dismissed Without Prejudice
------------------------------------------------------------------
In the case, ROBERT DOYLE, Plaintiff v. FLORIDA HEALTH SOLUTION,
CORP., and MOBILITY TECHNOLOGIES USA, CORP., Defendants, Case No.
19-cv-24013-GAYLES/OTAZO-REYES (S.D. Fla.), Judge Darrin P. Gayles
of the U.S. District Court for the Southern District of Florida:
(i) denied as moot Defendant FHS' Motion to Dismiss
Plaintiff's Second Amended Complaint ("Motion to
Dismiss"); and
(ii) denied its Supplemental Motion to Dismiss Plaintiff's
Second Amended Complaint.
On Sept. 27, 2019, Plaintiff Doyle filed the class action against
FHS for violations of the Telephone Consumer Protection Act
("TCPA"). On Feb. 25, 2020, the Plaintiff filed an Amended
Complaint against FHS, again alleging violations of the TCPA.
FHS moved to dismiss the Amended Complaint or, in the alternative,
to stay the proceedings pending the Supreme Court's decision in
Barr v. Am. Assoc. Political Consultants. The Court granted the
motion in part and stayed the action.
On July 6, 2020, the Supreme Court issued its decision in Barr,
holding that the government-debt exception to the TCPA was
unconstitutional. The Court then lifted the stay in the matter.
On Sept. 22, 2020, the Plaintiff filed a SAC, adding Mobility as a
defendant. The Plaintiff alleges that FHS sells "credit health
savings plans" and that Mobility transmits telemarketing calls on
behalf of its clients, including FHS. However, for the bulk of the
SAC, the Plaintiff does not differentiate between FHS and Mobility
and merely alleges that the "Defendants" used prerecorded
telemarketing calls to market the Defendants' business. The SAC
sets forth two counts for violations of the TCPA: Count I against
FHS and Count II against Mobility.
On Nov. 1, 2020, FHS moved to dismiss the SAC arguing that it fails
to adequately allege a violation of the TCPA and that the
McCarran-Ferguson Act precludes application of the TCPA to FHS. On
Feb. 5, 2021, FHS filed the Supplemental Motion to Dismiss arguing
the Supreme Court's ruling in Barr rendered the entire TCPA invalid
and, as a result, destroyed the Court's federal question subject
matter jurisdiction over the Plaintiff's claims.
Discussion
I. Jurisdiction
FHS argues that the Court lacks subject matter jurisdiction because
the entire TCPA was rendered invalid by Barr. According to FHS,
the Plaintiff cannot assert claims based on conduct that occurred
while the TCPA was invalid.
Jude Gayles holds that FHS' argument is without merit. As the
Supreme Court explained in Barr, the robocall restriction
functioned independently and fully operated as a law for 20-plus
years before the government-debt exception was added in 2015.
Therefore, severing the government-debt exception does not destroy
the pre-existing robocall restriction. Thus, robocalls made
between November 2015 and July 2020, not made for the purpose of
collecting a government debt, are enforceable under the TCPA.
Therefore, the Court has subject matter jurisdiction over
Plaintiff's TCPA claims.
II. Shotgun Pleading
Jude Gayles has reviewed the SAC and finds that it violates federal
pleading standards. To state a claim for relief, a pleading must
contain "(1) a short and plain statement of the grounds for the
court's jurisdiction; (2) a short and plain statement of the claim
showing that the pleader is entitled to relief; and (3) a demand
for the relief sought." Additionally, "a party must state its
claims or defenses in numbered paragraphs, each limited as far as
practicable to a single set of circumstances." The federal
pleading standards thus require the pleader to present his claims
discretely and succinctly, so that, his adversary can discern what
he is claiming and the court can determine which facts support
which claims and whether the plaintiff has stated any claims upon
which relief can be granted."
Judge Gayles finds that the SAC is an impermissible shotgun
pleading because it lumps together the "Defendants" without
identifying which of the Defendants is responsible for specific
acts or omissions. As a result of these pleading deficiencies, the
Jude is unable to ascertain whether the Plaintiff has stated a
claim against both Defendants. Therefore, the SAC will be
dismissed against FHS without prejudice as an impermissible shotgun
pleading.
Based on the foregoing, Judge Gayles denied Defendant FHS'
Supplemental Motion to Dismiss Plaintiff's Second Amended
Complaint. He dismissed the SAC against FHS without prejudice.
The Plaintiff will file a Third Amended Complaint by June 11,
2021.
The Judge denied as moot Defendant FHS' Motion to Dismiss
Plaintiff's Second Amended Complaint and the Plaintiff's Motion to
Strike Motion to Dismiss Second Amended Complaint.
The Judge denied Defendant FHS' Motion to Stay Discovery.
A full-text copy of the Court's June 1, 2021 Order is available at
https://tinyurl.com/y88uura8 from Leagle.com.
GENERAL MILLS: Judge Tosses Mislabeling Class Action Settlement
---------------------------------------------------------------
Law360 reports that a California federal judge has shot down a
proposed deal to resolve a class action alleging that General Mills
Inc. mislabels its fruit-flavored snacks as having no artificial
flavor, saying the deal shows signs of collusion as it offers the
class of consumers no money and a large payout to its attorneys.
[GN]
GENESIS FINANCIAL: Pascual Files ADA Suit in S.D. New York
----------------------------------------------------------
A class action lawsuit has been filed against Genesis Financial
Services, Inc. The case is styled as Domingo Pascual, on behalf of
himself and all others similarly situated v. Genesis Financial
Services, Inc., Case No. 1:21-cv-05157 (S.D.N.Y., June 10, 2021).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Genesis -- https://www.genesis-fs.com/ -- is the nation's leading
provider of private-label credit programs for non-prime
consumers.[BN]
The Plaintiff is represented by:
Joseph H. Mizrahi, Esq.
COHEN & MIZRAHI LLP
300 Cadman Plaza West, 12th Floor
Brooklyn, NY 11201
Phone: (929) 575-4175
Fax: (929) 575-4195
Email: joseph@cml.legal
GEO GROUP: Fox Rothschild Attorney Discusses Class Action
---------------------------------------------------------
Mark Tabakman, Esq., of Fox Rothschild LLP, in an article for
JDSupra, reports that one tactic to defeat a class action is to
assert that the named plaintiff is not an appropriate or proper
representative for the class. These initiatives are not often
successful, but defense counsel should always be looking for them.
A defendant employer is doing just that by asserting that a lead
plaintiff does not share a sufficiently commonality with the rest
of the class to allow the case to proceed. The cases are entitled
Washington v. GEO Group Inc. and Nwauzor et al. v. GEO Group Inc.
and were filed in federal court in the Western District of
Washington.
The defendant filed the motion to decertify the class one day
before the trial was scheduled to begin, an interesting tactic in
its own right. The lead plaintiff had been diagnosed with a mental
illness, but he had previously been found by the court to be
competent to be the class representative. Now, the defense lawyers
are asserting that the man's condition had "deteriorated
significantly" and a referral for him for inpatient treatment
indicated he was possibly looking at a "possible long-term civil
commitment."
The defendants claimed that Mr. Nwauzor was not a proper class
representative because "his claims are not typical of the class as
a whole." The Company argued that this person only worked in a
single job, i.e. a shower cleaner in the time he was confined.
Thus, the defendants assert that "his experience is too narrow —
both in time and in the scope of his VWP experience. As the sole
class representative, Nwauzor represents participants in only one
out of more than a dozen VWP positions and only about seven percent
of the class period." Alternatively, the defendant contended that
even if the class is not de-certified, it should be limited to only
those workers who occupied the same position as the lead
plaintiff.
The timing of the motion to de-certify is interesting, as stated
above, as jury selection was supposed to start a day later. The
employer had fought long and hard for a totally in-person hearing.
The employer offered the example of the Derek Chauvin as proof that
such an in-person trial could be accomplished safely.
The Takeaway
This is an interesting tactic and it is one that does not often
fall into the hands of a defendant employer. If the motion is
successful, the class is eliminated, and the individual is left to
vindicate only his own claim. The lesson is if there exists an
opportunity to find a magic bullet to get rid of the entire class
action, the employer should avail itself of it.
Keep looking for that magic bullet . . . [GN]
GLOBAL PLASMA: Boeing Study Cited in Federal Class Action Suit
--------------------------------------------------------------
Christina Jewett and Lauren Weber at Kaiser Health News report that
aerospace giant Boeing tested two kinds of ionization technologies
-- like those widely adopted in schools hoping to combat Covid-19
-- to determine how well each killed germs on surfaces and decided
that neither was effective enough to install on its commercial
planes.
Boeing noted in its conclusion that "air ionization has not shown
significant disinfection effectiveness."
Companies that make the air purifiers say they emit charged ions,
or "activated oxygen," that are said to inactivate bacteria and
viruses in the air. Boeing did not test the technology's
effectiveness in the air, only on surfaces. It also used a
"surrogate" for the virus that causes Covid-19.
The Boeing study has been cited in a federal lawsuit filed by a
Maryland consumer against Global Plasma Solutions, maker of the
"needlepoint bipolar ionization" technology that a Boeing
spokesperson said its engineers tested.
The proposed class-action lawsuit says GPS makes "deceptive,
misleading, and false" claims about its products based on
company-funded studies that are "not applicable to real world
conditions."
A GPS spokesperson said the lawsuit is "baseless and misleading"
and that the company will aggressively defend against it. He added
that Boeing "researchers deemed the study 'inconclusive.'"
"Plaintiff's Complaint throws the proverbial kitchen sink at GPS in
the hopes that something might stick," the air purifier company
says in court documents filed May 24 as part of its motion to
dismiss the proposed class action. "But it is devoid of any
concrete, specific allegations plausibly alleging that GPS made
even a single false or deceptive statement about its products."
The plaintiff's case cites a KHN investigation that found that more
than 2,000 U.S. schools had bought air-purifying technology,
including ionizers. Many schools used federal funds to purchase the
products. In April, a covid-19 commission task force from The
Lancet, a leading medical journal, composed of top international
health, education and air-quality experts, called various
air-cleaning technologies -- ionization, plasma and dry hydrogen
peroxide -- "often unproven."
Boeing said in its report that with ionization there is "very
little external peer reviewed research in comparison to other
traditional disinfection technologies" such as chemical, UV and
thermal disinfection and HEPA filters, all of which it relies on to
sanitize its planes.
The controversy is getting the attention of school officials from
coast to coast. They include one California superintendent who
cited the lawsuit and switched off that district's more than 400
GPS devices.
For worried parents and academic air-quality experts who regard
industry-backed studies with skepticism, the Boeing report
heightens their concerns.
"This [study] is totally damning," said Delphine Farmer, a Colorado
State University associate professor who specializes in atmospheric
and indoor chemistry who reviewed the Boeing report. "It should
just raise flags for absolutely everyone."
'No reduction' in bacteria
GPS pointed to another study, one conducted in the weeks before
Boeing began its study in September, by a third-party lab. It
completed a study of two devices — powered by GPS technology —
that another aviation company now markets to clean the air and
surfaces in planes.
That study looked at the effect of the ionizers on the virus that
causes Covid-19 when used on aluminum, a type of plastic called
Kydex and leather. The test report shows it was conducted in a
sealed, 20-by-8-foot chamber, with airflow speeds of 2,133 feet per
minute -- or about 24 mph. At the end of 30 minutes, "the overall
average decrease in active virus" was more than 99 percent.
"Given the specific environment this was tested in, the quality of
the materials, and the method in which the virus was dispersed, it
is safe to say that the bipolar ionization system used in this
experiment has the ability to deactivate SARS-CoV-2 with the given
ion counts," the Aug. 7 report from the third-party lab says.
The following month, Boeing began its own testing of GPS devices
and another kind of ionization technology.
The Boeing study cites a GPS white paper that says its device
killed 99.68 percent of E. coli bacteria in one test in 15 minutes.
GPS records show the test was done on bacteria suspended in the
air. The Boeing engineers used the company's technology to try to
kill E. coli on surfaces in a lab but found "no observable
reduction in viability" after an hour.
The Boeing study notes it "was unable to replicate supplier results
in terms of antimicrobial effectiveness."
GPS cautioned that the Boeing tests examined disinfection of
surfaces, not the air: "While GPS products do have the ability to
help reduce pathogens in air and on surfaces, GPS products are not
chemical surface disinfectants."
Yet surface tests comprise half of the test results the company
lists on its "pathogen reduction" webpage, a GPS spokesperson
confirmed.
Boeing researchers found another lab result they could not
replicate: While the GPS white paper reported a 96.24 percent
reduction in Staphylococcus aureus in 30 minutes, Boeing engineers
found "no reductions" in the bacteria in an hourlong test.
Boeing found minimal or no reduction on surfaces in four other
pathogens it tested with GPS ionizers for an hour in a Huntsville,
Alabama, lab.
Notably, Boeing's tests in Huntsville detected no hazardous ozone
gas from the GPS unit, the report says. The "corona discharge"
ionization technology from another vendor that Boeing also studied
did emit ozone at levels that "exceeded regulatory standards."
A University of Arizona lab test described in the Boeing study
found that the GPS device showed a 66.7% inactivation of a common
cold coronavirus on a surface after an hour of exposure at up to
62,000 negative ions per cubic centimeter. That ion level is far
higher than the amount of ions company leaders have said the
devices tend to deliver to a typical room. Those levels have ranged
from 2,000 to 10,000 and even up to 30,000 ions per cubic
centimeter when an HVAC system is running, according to records
provided to KHN and statements made by company representatives.
In a presentation during a Berkeley Unified School District meeting
in California, a physicist who appeared with executives said a
level of more than 60,000 ions per cubic centimeter "has been shown
to be not healthy."
GPS noted that Boeing deemed the 66.7 percent effectiveness rate in
killing the common cold virus "statistically significant." A GPS
spokesperson said the result validates needlepoint bipolar
ionization's "effectiveness against certain pathogens." In its
report, Boeing called the test results "inconclusive" due to "lack
of experimental confirmation."
A GPS spokesperson also highlighted a passage in the Boeing
report's conclusion that said: "There remains significant interest
in air ionization due to lack of byproduct production, minimal risk
to human health, minimum risk to airplane materials and systems,
and the potential for persistent disinfection of air and surfaces
under specific flow conditions."
The Boeing study concluded in January. In April, GPS published the
results of additional tests it funded at a third-party lab showing
its technology "is highly effective in neutralizing the SARS-CoV-2
pathogen."
Boeing engineers said their study highlights the need for those in
the ionization business to standardize the evaluation of the
technology "to allow comparison to other proven methods of
disinfection."
Ripple effects of the Boeing study
On May 7, law firms representing a man who spent over $750 on a GPS
air cleaner in Texas filed the "fraudulent concealment" lawsuit
against GPS in U.S. District Court in Delaware.
The lawsuit claims that the defendant's "misrepresentations and
false statements were woven into an extensive and long-term
advertising campaign . . . accelerating during the COVID-19
pandemic."
"People are being victimized by these companies for profit," said
Mickey Mills, a Houston attorney for the plaintiff. "People are
scared because of covid, and they capitalize on it."
In filing a motion to dismiss the case, GPS told the court the
lawsuit was an "attempt to distort the facts and assert baseless
claims, doing grave damage to GPS's business in the process."
The GPS court document also says the disclaimers on its website
"make it unreasonable for any consumers to believe that the
efficacy demonstrated in GPS studies will necessarily be the same
for their particular application."
It asserts that most of the GPS statements identified in the
plaintiff's lawsuit -- such as "safe to use" and "cleaner air" --
amount to "non-actionable puffery" as they are "vague generalities
and statements of opinion."
The lawsuit spurred a Newark, California, school district to turn
off its GPS devices, according to a May 18 memo from Superintendent
Mark Triplett to district families. The district spent nearly
$360,000 on the devices, an April board presentation shows.
The roughly 5,500-student district bought GPS units for every
school HVAC system, Triplett said in a March school board meeting
in which he noted the technology "arguably is much better than any
filter." By May, he said in the memo the district had become aware
of the lawsuit "alleging the misrepresentation" of the devices and
would continue to monitor the situation.
A company spokesperson noted GPS appreciates Newark's concerns and
has reached out to share additional data and answer questions, as
well as extended "an offer to conduct onsite testing to verify the
safety of this technology and the added benefits."
Megan McMillen, vice president of the Newark Teachers Association
and a special education preschool teacher, said it was
disheartening to know the cash-strapped district in the Bay Area
spent so much on the devices instead of other safety measures or
services to mitigate learning loss after the chaotic pandemic
year.
"For such a big chunk of that [money] going to something
potentially ineffective . . . is really frustrating," she said.
[GN]
GOOGLE LLC: Seeks Dismissal of Gift Cards Class Action Lawsuit
--------------------------------------------------------------
David Collins, writing for LawStreet, reports that defendants
Alphabet, Inc., Google, Inc., Google Payment Corp., and Google
Arizona LLC filed a Notice of Motion and Motion to Dismiss the
First Amended Complaint, Transfer Venue, and/or Strike Class
Allegations in the Central District of California. They did so in
response to an ongoing class-action lawsuit against their alleged
"refus[al] to redeem Google Play gift cards in accordance with
California law."
In the notice, the defendants explained that "Google Play is
Google's online platform through which sellers can sell apps,
games, movies, and other digital content", and that Google Play
gift cards are bound to the "Gift Card TOS", which incorporates the
Google Play Terms of Service and the Google Terms of Service. The
defendants emphasized that the Google TOS has a forum selection
clause that states: "disputes will be resolved exclusively in the
federal or state courts of Santa Clara County, California." Google
argued that their forum selection clause should be "enforced either
by dismissal under the doctrine of forum non conveniens or by
transfer to the Northern District of California", claiming that
they have a "significant corporate footprint there" and that they
"employ thousands of employees at [their] various offices in the
Northern District."
The defendants argued that the lawsuit should be dismissed "in its
entirety for failure to state any viable claim." They claimed that
California's Unfair Competition Law and the breach of contract
claims "are not governed by the Gift Certificate Law." Furthermore,
they suggested that each putative class member be verified as a
Google Play gift card holder, so that Google can check whether
their individual accounts were subject to "improperly applied"
security measures.
The plaintiffs are represented by McCune Wright Arevalo, LLP. They
are seeking class action certification, restitution, an award for
damages, and attorney's fees and costs.
Google is represented by Cooley LLP. [GN]
HANNAFORD BROS: Prinzo Wage-and-Hour Suit Goes to D. Massachusetts
------------------------------------------------------------------
The case styled JUDITH PRINZO, on behalf of herself and all others
similarly situated v. HANNAFORD BROS. CO., LLC, Case No.
2183CV00323, was removed from the Superior Court of the
Commonwealth of Massachusetts, Plymouth County, to the U.S.
District Court for the District of Massachusetts on June 9, 2021.
The Clerk of Court for the District of Massachusetts assigned Case
No. 1:21-cv-10968-JGD to the proceeding.
The case arises from the Defendant's alleged violations of the
Massachusetts Wage Act by failing to pay the Plaintiff and all
others similarly situated employees overtime pay for all hours
worked in excess of 40 hours in a workweek.
Hannaford Bros. Co., LLC is a supermarket chain based in
Scarborough, Maine. [BN]
The Defendant is represented by:
Christopher M. Pardo, Esq.
Elizabeth L. Sherwood, Esq.
HUNTON ANDREWS KURTH LLP
60 State Street, Suite 2400
Boston, MA 02109
Telephone: (617) 648-2800
Facsimile: (617) 433-5022
E-mail: cpardo@HuntonAK.com
esherwood@HuntonAK.com
HORMAN'S PICKLES: Angeles Files ADA Suit in S.D. New York
---------------------------------------------------------
A class action lawsuit has been filed against Horman's Pickles,
Inc. The case is styled as Jenisa Angeles, on behalf of herself and
all others similarly situated v. Horman's Pickles, Inc., Case No.
1:21-cv-05167 (S.D.N.Y., June 10, 2021).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Horman's Pickles, Inc. -- https://hormansbestpickles.com/ --
delivers variously flavored pickles.[BN]
The Plaintiff is represented by:
Mark Rozenberg, Esq.
STEIN SAKS, PLLC
285 Passaic Street
Hackensack, NJ 07601
Phone: (201) 282-6500
Email: mrozenberg@steinsakslegal.com
HP INC: Bid to Dismiss Mobile Emergency Housing Suit Pending
------------------------------------------------------------
HP Inc. said in its Form 10-Q Report filed with the Securities and
Exchange Commission on June 4, 2021, for the quarterly period ended
April 30, 2021, that the company filed a motion to dismiss the
third amended complaint filed in Mobile Emergency Housing Corp., et
al. v. HP, Inc.
On December 17, 2020, a putative consumer class action was filed
against HP in federal court in the Northern District of California
arising out of the use of Dynamic Security firmware updates.
The complaint alleges seven claims under federal and California
law: (1) violation of the federal Computer Fraud and Abuse Act
("CFAA") for allegedly causing "damage without authorization" to
the plaintiffs' printers; (2) violation of the California
Comprehensive Computer Data Access and Fraud Act ("CDAFA"); (3)
violation of the California False Advertising Law ("FAL"); (4)
violation of the "fraudulent" prong of the California Unfair
Competition Law ("UCL"); (5) violation of the "unfair" prong of the
UCL; (6) violation of the "unlawful" prong of the UCL; and (7)
trespass to chattels.
Plaintiffs seek to represent a nationwide injunctive-relief class
of "all persons in the United States who own a Class Printer" and a
monetary relief subclass of those who experienced an error message
due to third-party cartridge incompatibility resulting from a
firmware update, defining "Class Printers" to include the "HP Color
LaserJet Pro M254, HP Color LaserJet Pro MFP M280, HP Color
LaserJet Pro MFP M281, and all other models affected" by the
firmware updates described in the complaint.
On February 10, 2021, HP filed a motion to dismiss the complaint,
and in response, on March 2, 2021, plaintiffs amended their
complaint. The amended complaint added an additional named
plaintiff, a California state consumer subclass, and a California
Consumers Legal Remedies Act claim seeking injunctive relief on
behalf of the new plaintiff and the state consumer subclass.
Plaintiffs subsequently filed Second and Third Amended Complaints
respectively on March 19 and April 8, 2021. The Third Amended
Complaint adds allegations pertaining to data
collection—specifically, that HP allegedly collected data on the
type of third-party cartridges that Plaintiffs used on their
printers without their knowledge, in violation of the FAL and UCL
and in a manner giving rise to a trespass of chattels.
The Third Amended Complaint also pleads new claims under the CFAA
and CDAFA based on these data collection allegations, as well as a
new claim under the CDAFA based on the theory that HP lacked
authorization to issue the firmware updates at issue. Plaintiffs
seek compensatory damages, restitution, injunctive relief against
alleged unfair business practices, and other relief.
On May 24, 2021, HP filed a motion to dismiss the Third Amended
Complaint.
HP Inc. provides personal computing and other access devices,
imaging and printing products, and related technologies, solutions,
and services in the United States and internationally. The company
operates through three segments: Personal Systems, Printing, and
Corporate Investments. The company was formerly known as
Hewlett-Packard Company and changed its name to HP Inc. in October
2015. HP Inc. was founded in 1939 and is headquartered in Palo
Alto, California.
HP INC: Consolidated Gensin Class Suit Underway in Israel
---------------------------------------------------------
HP Inc. said in its Form 10-Q Report filed with the Securities and
Exchange Commission on June 4, 2021, for the quarterly period ended
April 30, 2021, that the company continues to defend a consolidated
class action suit in Israel entitled, Gensin v. HP Inc.
On October 25, 2017, a purported consumer class action, captioned
Gensin v. HP Inc., was filed in the District Court in Jerusalem
against HP arising out of the use of Dynamic Security in certain
OfficeJet printers. The petition and motion for certification as a
class action alleges: (1) tortious wrongdoing in violation of the
Computers Law, 5755-1995; (2) breach of Contracts Law, 5731-1970;
(3) breach of the Consumer Protection Law, 5741-1981; (4)
negligence; and (5) improper enrichment.
The named petitioner initially sought to represent nationwide
classes comprised of anyone who "owns an HP printer that has been
blocked, disrupted, or interfered with by HP in the use of ink
cartridges not manufactured by HP" or who "purchased ink cartridges
not manufactured by HP for use in the blocked printers."
Plaintiff seeks class relief, injunctive relief, damages, and
attorneys' fees.
On November 16, 2017, a second purported consumer class action was
filed against HP in the Central District Court, captioned Dror v.
HP, Inc., also arising out of the use of Dynamic Security in
certain OfficeJet printers.
The petition and motion allege similar causes of action on behalf
of similar nationwide classes.
After the Dror case was consolidated with the Gensin case in
Jerusalem, the District Court on June 24, 2018 dismissed the Dror
case and designated Gensin as the lead matter.
On March 9, 2020, the petitioner moved to modify the proposed
nationwide class to be comprised of "all persons who have an HP
printer and whose printer was blocked or rendered unusable by HP
with any ink cartridge that is not made by HP" and "all persons who
purchased ink cartridges that are not made by HP, for use in the
Blocked Printers."
On July 2, 2020, HP filed its response to the amended petition.
No further updates were provided in the Company's SEC report.
HP Inc. provides personal computing and other access devices,
imaging and printing products, and related technologies, solutions,
and services in the United States and internationally. The company
operates through three segments: Personal Systems, Printing, and
Corporate Investments. The company was formerly known as
Hewlett-Packard Company and changed its name to HP Inc. in October
2015. HP Inc. was founded in 1939 and is headquartered in Palo
Alto, California.
HP INC: Oral Argument on Appeal in Parziale Suit Set for July 29
----------------------------------------------------------------
HP Inc. said in its Form 10-Q Report filed with the Securities and
Exchange Commission on June 4, 2021, for the quarterly period ended
April 30, 2021, that oral argument on the appeal made in Parziale
v. HP Inc., is scheduled on July 29, 2021.
On August 27, 2019, a purported consumer class action was filed
against HP in federal court in the Northern District of California
arising out of the use of Dynamic Security in certain OfficeJet
printers.
The complaint alleges two causes of action under Florida Consumer
Protection statutes: (1) violation of the Florida Deceptive and
Unfair Trade Practices Act, F.S.A. Sections 501.201 et seq., and
(2) violation of the Florida Misleading Advertisement Law, F.S.A.
sections 817.41 et seq. The named plaintiff seeks to represent a
nationwide class of "all United States Citizens who, between the
applicable statute of limitations and the present, had an HP
Printer that was modified to reject third party ink cartridges or
refilled HP ink cartridges."
On November 13, 2019, plaintiff filed an amended complaint, adding
three causes of action to the case: (1) violation of the Computer
Fraud and Abuse Act, 18 U.S.C. Section 1030 et seq., (2) trespass
to chattels, and (3) tortious interference with business relations.
Plaintiff seeks class relief, injunctive relief, damages, including
punitive damages, and attorneys' fees.
On December 30, 2019, HP moved to dismiss plaintiff's amended
complaint.
On April 24, 2020, the Court granted in part and denied in part
HP's motion to dismiss. The Court dismissed plaintiff's causes of
action under the Florida Consumer Protection statutes, as well as
the tortious interference with business relations claim and four of
the five claims under the Computer Fraud and Abuse Act. The Court
denied HP's motion to dismiss on the remaining claims and on the
request for injunctive relief and granted plaintiff leave to file
an amended complaint.
On June 5, 2020, plaintiff filed a second amended complaint on
behalf of both a nationwide class and a Florida subclass alleging
violation of the Florida Deceptive and Unfair Trade Practices Act,
violation of the Computer Fraud and Abuse Act, and trespass to
chattels.
Plaintiff sought class relief, injunctive relief, damages,
including punitive damages, and attorneys' fees.
On September 29, 2020, the Court granted HP's motion to dismiss,
dismissing the case in full with prejudice. Plaintiff appealed, and
the Ninth Circuit Court of Appeals has scheduled oral argument for
July 29, 2021.
HP Inc. provides personal computing and other access devices,
imaging and printing products, and related technologies, solutions,
and services in the United States and internationally. The company
operates through three segments: Personal Systems, Printing, and
Corporate Investments. The company was formerly known as
Hewlett-Packard Company and changed its name to HP Inc. in October
2015. HP Inc. was founded in 1939 and is headquartered in Palo
Alto, California.
HP INC: Suit by Electrical Workers Pension Fund, Local 103 Ongoing
------------------------------------------------------------------
HP Inc. said in its Form 10-Q Report filed with the Securities and
Exchange Commission on June 4, 2021, for the quarterly period ended
April 30, 2021, that the company continues to defend a putative
class action suit entitled, In re HP Inc. Securities Litigation.
On February 19, 2020, Electrical Workers Pension Fund, Local 103,
I.B.E.W. filed a putative class action complaint against HP, Dion
Weisler, Catherine Lesjak, and Steven Fieler in U.S. District Court
in the Northern District of California.
On May 20, 2020, the court appointed the State of Rhode Island,
Office of the General Treasurer, on behalf of the Employees'
Retirement System of Rhode Island and Iron Workers Local 580 Joint
Funds as Lead Plaintiffs.
On July 20, 2020, Lead Plaintiffs filed an amended complaint, which
additionally named as defendants Enrique Lores and Christoph
Schell.
On October 2, 2020, HP and the named officers filed a motion to
dismiss the complaint for failure to state a claim upon which
relief can be granted. On March 19, 2021, the court granted HP's
motion to dismiss and granted plaintiffs leave to amend the
complaint.
On May 3, 2021, plaintiffs filed their second amended complaint,
which no longer names Christoph Schell as a defendant.
The second amended complaint alleges, among other things, that from
February 23, 2017 to October 3, 2019, HP and the named officers
violated Sections 10(b) and 20(a) of the Exchange Act by making
false or misleading statements about HP's printing supplies
business, including alleged statements made about changes to HP's
channel inventory management and sales practices, and stabilization
of printing supplies revenue.
It further alleges that Dion Weisler and Enrique Lores violated
Sections 10(b) and 20A of the Exchange Act by allegedly selling
shares of HP common stock during this period while in possession of
material, non-public adverse information about HP's printing
supplies business. Plaintiffs seek compensatory damages and other
relief.
HP Inc. provides personal computing and other access devices,
imaging and printing products, and related technologies, solutions,
and services in the United States and internationally. The company
operates through three segments: Personal Systems, Printing, and
Corporate Investments. The company was formerly known as
Hewlett-Packard Company and changed its name to HP Inc. in October
2015. HP Inc. was founded in 1939 and is headquartered in Palo
Alto, California.
HP INC: York County Putative Class Action Underway
--------------------------------------------------
HP Inc. said in its Form 10-Q Report filed with the Securities and
Exchange Commission on June 4, 2021, for the quarterly period ended
April 30, 2021, that the company continues to defend a putative
class action suit entitled, York County on behalf of the County of
York Retirement Fund v. HP Inc., et al.
On November 5, 2020, York County, on behalf of the County of York
Retirement Fund, filed a putative class action complaint against
HP, Dion Weisler, and Catherine Lesjak in federal court in the
Northern District of California.
On February 11, 2021, the court appointed Maryland Electrical
Industry Pension Fund as Lead Plaintiff. On April 21, 2021, Lead
Plaintiff filed a consolidated complaint, which additionally names
as defendants Enrique Lores and Richard Bailey. The complaint
alleges, among other things, that from November 5, 2015 to June 21,
2016, HP and the named current and former officers violated
Sections 10(b) and 20(a) of the Exchange Act by concealing material
information and making false statements about HP's printing
supplies business, including information about HP's channel
inventory management and sales practices. Plaintiff seeks
compensatory damages and other relief.
On May 17, 2021, stockholder Scott Franklin filed a derivative
complaint against certain current and former officers and directors
in federal court in the District of Delaware.
Plaintiff purports to bring the action on behalf of HP, which he
has named as a nominal defendant, and it makes substantially the
same factual allegations as in the York County securities
complaint, bringing claims for breach of fiduciary duty and
violations of securities laws. The derivative plaintiff seeks
compensatory damages, governance reforms, and other relief.
HP Inc. provides personal computing and other access devices,
imaging and printing products, and related technologies, solutions,
and services in the United States and internationally. The company
operates through three segments: Personal Systems, Printing, and
Corporate Investments. The company was formerly known as
Hewlett-Packard Company and changed its name to HP Inc. in October
2015. HP Inc. was founded in 1939 and is headquartered in Palo
Alto, California.
I.C. SYSTEM: New York Court Dismisses Teitelbaum FDCPA Class Suit
-----------------------------------------------------------------
Judge Pamela K. Chen of the U.S. District Court for the Eastern
District of New York granted ICS' motion to dismiss the case,
BORUCH TEITELBAUM, individually and on behalf of all others
similarly situated, Plaintiff v. I.C. SYSTEM, INC., and JOHN DOES
1-25, Defendants, Case No. 20-CV-3272 (PKC) (LB) (E.D.N.Y.).
Some time prior to June 23, 2020, Plaintiff Teitelbaum incurred a
debt to New York State Electric & Gas Corporation ("NYSEG") for
electric and gas services. NYSEG contracted with Defendant I.C.
System ("ICS") to collect this debt. On June 23, 2020, ICS sent
the Plaintiff a collection letter regarding a debt owed on his
account with a utility company.
The letter told the Plaintiff: "The account information is
scheduled to be reported to the national credit reporting agencies
in your creditor's name. ICS will not submit the account
information to the national credit reporting agencies until the
expiration of the time period described in the notice below."
The Plaintiff asserts that ICS's letter, particularly the
combination of the first and last sentences of the second
paragraph, implies that Defendant ICS will be reporting to the
credit reporting agencies after the expiration of the time period
in addition to the original creditor submitting as well.
Accordingly, the Plaintiff alleges that the letter misleadingly
represents that two companies will report the same debt to the
credit reporting agencies at the same time, i.e., that the same
debt would be reported twice.
On July 21, 2020, the Plaintiff brought suit individually and on
behalf of a putative class against ICS, alleging a single violation
of the Fair Debt Collection Practices Act ("FDCPA"), under 15
U.S.C. Section 1692e.
On Sept. 21, 2020, ICS moved for a pre-motion conference to discuss
a proposed motion to dismiss for failure to state a claim pursuant
to Federal Rule of Civil Procedure 12(b)(6). The Plaintiff
responded. By order dated Oct. 9, 2020, the Court construed ICS'
motion for a pre-motion conference as a motion to dismiss and
directed the parties to file supplemental letter briefs. Following
supplemental letter briefing, the Court took the motion under
submission.
Judge Chen holds that the Plaintiff's Complaint does not plausibly
state a violation of the FDCPA. She says the Plaintiff's proposed
interpretation of the collection letter tortured and
"idiosyncratic," one that even the most naïve and unsophisticated
consumer could not reasonably reach. The letter does not state
that NYSEG will be reporting any debt or account information to the
credit reporting agencies. Rather, the plain language of the
letter makes clear that ICS, and not the creditor NYSEG, will be
reporting the relevant information: it states that "the account
information is scheduled to be reported to the national credit
reporting agencies in your creditor's name," and then, in the same
paragraph, makes clear that "ICS will not submit the account
information to the national credit reporting agencies until the
expiration of the time period described in the notice below."
The Judge finds that the Plaintiff's argument reads into the
statement something that it does not say, and ignores that two
sentences later, in the same paragraph, the letter explicitly
identifies ICS as the entity that will be submitting "the account
information" to the national credit reporting agencies. Even the
least sophisticated consumer is deemed to be willing and able to
read a collection letter in its entirety and with some care.
In short, only a consumer in search of ambiguity, and not the least
sophisticated consumer relevant in the case, would interpret ICS'
collection letter in the idiosyncratic and illogical way the
Plaintiff posits. Indeed, a lawyer in search of ambiguity is even
more likely than a consumer in search of ambiguity to find fault
with this entirely accurate and innocuous debt collection letter.
Assuming that the collection letter is read as a whole and with
some care, even the least sophisticated consumer could not
reasonably interpret it to say that both NYSEG and ICS will be
reporting the consumer's "account information" to the credit
reporting agencies or that the debt will be reported twice to these
agencies. Accordingly, the Complaint fails to state a plausible
violation of the FDCPA under 15 U.S.C. Section 1692e, and is
dismissed with prejudice.
For these reasons, Judge Chen granted the motion to dismiss is
granted, and dismissed the Complaint. The Clerk of Court is
respectfully directed to enter judgment in favor of all the
Defendants and close the case.
A full-text copy of the Court's June 1, 2021 Memorandum & Order is
available at https://tinyurl.com/yes82sf9 from Leagle.com.
IMMUNOVANT INC: IMVT-1401 Related Putative Class Suit Underway
--------------------------------------------------------------
Immunovant, Inc. said in its Form 10-K report filed with the U.S.
Securities and Exchange Commission on June 1, 2021, for the fiscal
year ended March 31, 2021, that the company continues to defend a
putative securities class action suit related to the false and
misleading statements regarding the safety of IMVT-1401.
In February 2021, a putative securities class action complaint was
filed against the Company and certain of its current and former
officers in the United States District Court for the Eastern
District of New York on behalf of a class consisting of those who
acquired the Company's securities from October 2, 2019 and February
1, 2021.
The complaint alleges that the Company and certain of its officers
violated Sections 10(b) and 20(a) of the Securities Exchange Act of
1934, as amended, by making false and misleading statements
regarding the safety of IMVT-1401 and seeks unspecified monetary
damages on behalf of the putative class and an award of costs and
expenses, including reasonable attorneys' fees.
On April 20, 2021, three movants filed motions for appointment as
lead plaintiff, one of which was subsequently withdrawn on April
23, 2021. No hearing date has been set for the lead plaintiff
motions.
Following appointment of lead plaintiff, defendants, including the
Company, expect the lead plaintiff to file an amended complaint and
defendants, including the Company, to file a motion to dismiss the
amended complaint.
The Company intends to defend the case vigorously and has not
recorded a liability related to this lawsuit because, at this time,
the Company is unable to reasonably estimate possible losses or
determine whether an unfavorable outcome is either probable or
remote.
Immunovant, Inc. is a clinical-stage biopharmaceutical company
focused on enabling normal lives for people with autoimmune
diseases. The company is developing a novel, fully human monoclonal
antibody, IMVT-1401 (formerly referred to as RVT-1401), that
selectively binds to and inhibits the neonatal fragment
crystallizable receptor ("FcRn"). The company is based in New York,
New York.
INTERCONTINENTAL TERMINALS: Ogden Suit Transferred to D.S.C.
------------------------------------------------------------
The case styled STEVEN BRETT OGDEN and BRANDON MICHAEL MARTIN,
individually and on behalf of all others similarly situated v.
INTERCONTINENTAL TERMINALS COMPANY LLC, JOHNSON CONTROLS INC., TYCO
FIRE PRODUCTS, LP, THE ANSUL COMPANY, CHEMGUARD, INC., NATIONAL
FOAM, INC., KIDDEFENWAL, INC., KIDDE FIRE FIGHTING, INC., US PUMP
COMPANY, LLC, WILLIAMS FIRE & HAZARD CONTROL, NSK LIMITED, NSK
CORPORATION, NSK PRECISION AMERICA, INC., NSK-AKS PRECISION BALL
COMPANY, and APPLIED INDUSTRIAL TECHNOLOGIES, INC., Case No.
4:21-cv-00273, was transferred from the U.S. District Court for the
Southern District of Texas to the U.S. District Court for the
District of South Carolina on June 8, 2021.
The Clerk of Court for the District of South Carolina assigned Case
No. 2:21-cv-01703-RMG to the proceeding.
The case arises from the Defendants' alleged negligence and gross
negligence and strict products liability by designing,
manufacturing, and marketing of an industrial firefighting foam
that contained per- and polyfluoroalkyl substances (PFAS). The
Plaintiffs and Class members were allegedly exposed to PFAS and
suffered injuries after the Defendants' industrial firefighting
foam was used to put out a fire at Intercontinental Terminals
Company's tank yard in Deer Park, Texas on March 17, 2019.
Intercontinental Terminals Company, LLC, is a premier terminal
services company, headquartered in Deer Park, Texas.
Johnson Controls Inc. is a producer of electronics and heating,
ventilation, and air conditioning (HVAC) equipment, headquartered
in Wisconsin.
Tyco Fire Products, LP is a fire protection and general industrial
machinery company based in Pennsylvania.
The Ansul Company, is a manufacturer of water-based fire
suppression system components and ancillary building construction
products, 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.
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.
Kidde Fire Fighting, Inc. is a manufacturer of fire safety products
based in Mebane, North Carolina.
US Pump Company, LLC is a provider of industrial fire solutions
based in New York.
Williams Fire & Hazard Control is a provider of fire protection
equipment supplies based in Texas.
NSK Limited is a machinery manufacturing company based in Tokyo,
Japan.
NSK Corporation is a machinery manufacturing company based in
Tokyo, Japan.
NSK Precision America, Inc. is a manufacturer of metal products
based in Franklin, Indiana.
NSK-AKS Precision Ball Company is a manufacturer of metal products
based in Franklin, Indiana.
Applied Industrial Technologies, Inc. is a global company that
focused on the distribution of bearings, power transmission
products, engineered fluid power components and systems, specialty
flow control solutions, and other industrial supplies,
headquartered in Cleveland, Ohio. [BN]
The Plaintiffs are represented by:
Don J. Foty, Esq.
David W. Hodges, Esq.
HODGES & FOTY, LLP
4409 Montrose Blvd., Suite 200
Houston, TX 77006
Telephone: (713) 523-0001
Facsimile: (713) 523-1116
E-mail: dfoty@hftrialfirm.com
dhodges@hftrialfirm.com
- and –
William R. Oden, Esq.
FARRAR & BALL, L.L.P.
1117 Herkimer Street
Houston, TX 77008
Telephone: (713) 221-8300
Facsimile: (713) 221-8301
E-mail: bill@fbtrial.com
- and –
Charles R. Houssiere, III, Esq.
Spencer T. Speed, Esq.
HOUSSIERE, DURANT & HOUSSIERE
1990 Post Oak Blvd., Suite 800
Houston, TX 77056-3812
Telephone: (713) 626-3700
Facsimile: (713) 626-3709
E-mail: choussiere@hdhtex.com
sspeed@hdhtex.com
IRHYTHM TECHNOLOGIES: PERSM Named Lead Plaintiff in Habelt Suit
---------------------------------------------------------------
In the case, MARK HABELT, Plaintiff v. IRHYTHM TECHNOLOGIES, INC.,
et al., Defendants, Case No. 21-cv-00776-EMC (N.D. Cal.), Judge
Edward M. Chen of the U.S. District Court for the Northern District
of California grants Public Employees' Retirement System of
Mississippi (PERSM)'s unopposed motion for appointment as the Lead
Plaintiff and approval of selection of Pomerantz LLP as the Lead
Counsel.
The federal securities class action was filed on Feb. 1, 2021. The
Defendants in the action are iRhythm and Kevin M. King, iRhythm's
President, CEO, and a member of the iRhythm's board of directors.
The complaint charges the Defendants with violating sections 10(b)
and 20(a) of the Securities and Exchange Act of 1934 for
misrepresenting on two occasions, in December 2020 and January
2021, iRhythm's business and operations with respect to U.S.
Centers for Medicare and Medicaid's rules regarding payment
policies and payment rates for certain iRhythm products and
services.
On April 2, 2021, Gang Chen, Bryan Hawkins, and PERSM filed
competing motions to be appointed as the Lead Plaintiffs. Messrs.
Hawkins and Chen withdrew their motions on April 16 and 30,
respectively.
Discussion
A. Lead Plaintiff
Pursuant to the Private Securities Litigation Reform Act of 1995
(PSLRA), the Court should appoint as lead plaintiff whoever has the
"largest financial interest" in the relief sought by the class,
provided they also satisfy the requirements of Rule 23 (typicality
and adequacy).
Judge Chen holds that all three of these factors weight in favor of
appointing PERSM in the instant case. First, it is undisputed that
PERSM has the "largest financial interest" in this action, under
any relevant metric. PERSM spent $7,944,181 to purchase 35,160
shares of iRhythm, retained 26,269 of those shares, and incurred a
monetary loss of $1,809,061 during the relevant class period.
Second, the claims of PERSM are typical of the class because it
purchased iRhythm stock during the relevant class period and
alleges that it suffered losses because of the drop in the iRhythm
stock price caused by the December 2020 and January 2021 corrective
disclosures alleged in the complaint. There are no allegations
that PERSM's claims are not typical or that it is subject to
affirmative defenses that the other class members are not subject
to.
Finally, there are no allegations that PERSM is inadequate to serve
as the Lead Plaintiff, such as it having a conflict of interest.
To the contrary, significant losses give PERSM a sufficient stake
in the litigation that will ensure vigorous prosecution.
Before withdrawing his motion, Mr. Chen argued that PERSM was an
inadequate lead plaintiff because it has been appointed lead
plaintiff in 14 cases, 12 of which were commenced in the last three
years, contravening the PSRLA's restriction against being appointed
lead plaintiff in "more than 5 securities class actions during any
3-year period."
But courts in thie district routinely waive this "five-in-three"
restriction for institutional investors like PERSM. Judge Chen
exercises his discretion to waive the five-in-three requirement
because PERSM is presumptively the most adequate Lead Plaintiff and
no other plaintiff opposes PERSM's motion.
B. Lead Counsel
The PSLRA vests authority in the lead plaintiff to select and
retain lead counsel, subject to the Court's approval. The Court
should interfere with the Lead Plaintiff's selection only when
necessary "to protect the interests of the class."
In the case, PERSM selected Pomerantz as the Lead Counsel for the
Class. As its resume reflects, Pomerantz is highly experienced in
the areas of securities litigation and class actions and has
successfully prosecuted numerous securities litigations and
securities fraud class actions on behalf of investors. There is no
basis for the Court to conclude that Pomerantz will be unable to
protect the interests of the class in the instant case.
Conclusion
Accordingly, Judge Chen grants PERSM's motion for appointment as
the Lead Plaintiff and selection of Pomerantz as the Lead Counsel.
To ensure efficiency, the Judge adopts the following protocols.
First, other than Pomerantz, no other law firm will work on the
action for the putative class without prior approval of the Court.
Motions for approval of additional Plaintiffs' counsel will
identify the additional Plaintiffs' counsel and their background,
the specific proposed tasks, and why Pomerantz cannot perform these
tasks.
Second, any individuals who will seek fees in the case, including
staff, consultants, and experts, will maintain daily,
contemporaneous time records. This means that block-billing will
not be permitted, and time records must account for every tenth of
an hour (not a quarter of an hour). "Contemporaneous time records"
means that each individual who works on the case must record their
time no later than seven days after they complete each task.
Third, Pomerantz will take every effort to minimize costs and
expenses through lean staffing (e.g., number of attorneys attending
and billing for each deposition and court appearance) and imposing
limits on travel expenses (e.g., coach air fare, no luxury hotels),
etc.
Finally, the Court may, in its discretion, call upon the counsel to
submit records as to any of these protocols and/or a report for the
Court's independent review.
The Order disposes of Docket No. 22.
A full-text copy of the Court's June 1, 2021 Order is available at
https://tinyurl.com/9an6x5hc from Leagle.com.
JUUL LABS: E-Cigarette Device Causes Addiction, Mendones Alleges
----------------------------------------------------------------
GUALBERTO MENDONES, on behalf of himself and all others similarly
situated, Plaintiff v. JUUL LABS, INC.; PAX LABS, INC.; ALTRIA
GROUP DISTRIBUTION COMPANY; PHILIP MORRIS USA, INC.; and JOHN DOES
1-13, Defendants, Case No. 2:21-cv-01700-DCN (D.S.C., June 8, 2021)
is a class action against the Defendants for design defect, failure
to warn, negligence and/or gross negligence, wanton and willful
conduct, fraud, civil conspiracy, outrage, negligent
misrepresentation, unjust enrichment, and violation of the South
Carolina Unfair Trade Practices Act.
According to the complaint, the Defendants designed an electronic
nicotine delivery system (ENDS) or e-cigarette allegedly intended
to create and sustain nicotine addiction. JUUL e-cigarettes are
designed to be inhaled easily and to deliver substantially higher
doses of nicotine than cigarettes. As a result of the Defendants'
alleged wrongful conduct, the Plaintiff developed a severe nicotine
addiction through use of the Defendants' e-cigarette device.
JUUL Labs, Inc., formerly known as Pax Labs, Inc., is an American
electronic cigarette company, with its principal place of business
in San Francisco, California.
Altria Group Distribution Company is a tobacco company, with its
principal place of business in Richmond, Virginia.
Philip Morris USA, Inc. is a wholly-owned subsidiary of Altria
Group, Inc., with its principal place of business in Richmond,
Virginia. [BN]
The Plaintiff is represented by:
W. Mullins McLeod, Jr., Esq.
H. Cooper Wilson, III, Esq.
MCLEOD LAW GROUP, LLC
3 Morris Street, Suite A
P.O. Box 21624
Charleston, SC 29413
Telephone: (843) 277-6655
Facsimile: (843) 277-6660
- and –
Peter M. McCoy, Jr., Esq.
MCCOY LAW GROUP, LLC
15 Prioleau Street
Charleston, SC 29401
Telephone: (843) 459-8835
JUUL LABS: Markets E-Cigarette to Youth, Ohio District Alleges
--------------------------------------------------------------
NORTHWESTERN LOCAL SCHOOL DISTRICT, on behalf of itself and all
others similarly situated, Plaintiff v. JUUL LABS, INC. F/K/A PAX
LABS, INC.; JAMES MONSEES; ADAM BOWEN; NICHOLAS PRITZKER; HOYOUNG
HUH; RIAZ VALANI; ALTRIA GROUP, INC.; ALTRIA CLIENT SERVICES LLC;
ALTRIA GROUP DISTRIBUTION COMPANY; and PHILIP MORRIS USA, INC.,
Defendants, Case No. 3:21-cv-04411 (N.D. Cal., June 9, 2021) is a
class action against the Defendants for negligence, gross
negligence, and violations of Public Nuisance Law and the Racketeer
Influenced and Corrupt Organizations Act.
According to the complaint, the Defendants used three tactics to
maintain market dominance in the cigarette industry: (1) product
design to maximize addiction, (2) mass deception, and (3) targeting
of youth. Defendants JUUL Labs and Adam Bowen designed an
e-cigarette device allegedly intended to create and sustain
addiction, but without the stigma associated with cigarettes and
promoted them to vulnerable young population. JUUL Labs and other
Defendants developed and implemented a marketing scheme to mislead
users into believing that JUUL products contained less nicotine
than they actually do and were healthy and safe. The Defendants
enticed newcomers to nicotine with kid-friendly flavors without
ensuring the flavoring additives were safe for inhalation. The
Defendants targeted the youth market by placing vaporized campaigns
on youth-oriented websites and media and using influencers and
affiliates to amplify their message to a teenage audience. The
Defendants have successfully caused more young people to start
using e-cigarettes, creating a youth e-cigarette epidemic and
public health crisis, the suit alleges.
Northwestern Local School District is a unified school district
with its offices located at 7571 North Elyria Road in West Salem,
Ohio.
JUUL Labs, Inc., formerly known as Pax Labs, Inc., is an American
electronic cigarette company, with its principal place of business
in San Francisco, California.
Altria Group, Inc. is a producer of tobacco products, with its
principal place of business in Richmond, Virginia.
Philip Morris USA, Inc. is a wholly-owned subsidiary of Altria
Group, Inc., with its principal place of business in Richmond,
Virginia.
Altria Client Services LLC is a tobacco company, with its principal
place of business in Richmond, Virginia.
Altria Group Distribution Company is a tobacco company, with its
principal place of business in Richmond, Virginia. [BN]
The Plaintiff is represented by:
James Frantz, Esq.
William B. Shinoff, Esq.
FRANTZ LAW GROUP, APLC
402 W. Broadway, Ste. 860
San Diego, CA 92101
Telephone: (619) 233-5945
Facsimile: (619) 525-7672
E-mail: jpf@frantzlawgroup.com
wshinoff@frantzlawgroup.com
JUUL LABS: Markets E-Cigarette to Youth, Ohio School Alleges
------------------------------------------------------------
SOUTHEAST LOCAL SCHOOL DISTRICT, on behalf of itself and all others
similarly situated, Plaintiff v. JUUL LABS, INC. F/K/A PAX LABS,
INC.; JAMES MONSEES; ADAM BOWEN; NICHOLAS PRITZKER; HOYOUNG HUH;
RIAZ VALANI; ALTRIA GROUP, INC.; ALTRIA CLIENT SERVICES LLC; ALTRIA
GROUP DISTRIBUTION COMPANY; and PHILIP MORRIS USA, INC.,
Defendants, Case No. 3:21-cv-04373 (N.D. Cal., June 8, 2021) is a
class action against the Defendants for negligence, gross
negligence, and violations of Public Nuisance Law and the Racketeer
Influenced and Corrupt Organizations Act.
According to the complaint, the Defendants used three tactics to
maintain market dominance in the cigarette industry: (1) product
design to maximize addiction, (2) mass deception, and (3) targeting
of youth. Defendants JUUL Labs and Adam Bowen designed an
e-cigarette device allegedly intended to create and sustain
addiction, but without the stigma associated with cigarettes and
promoted them to vulnerable young population. JUUL Labs and other
Defendants developed and implemented a marketing scheme to mislead
users into believing that JUUL products contained less nicotine
than they actually do and were healthy and safe. The Defendants
enticed newcomers to nicotine with kid-friendly flavors without
ensuring the flavoring additives were safe for inhalation. The
Defendants targeted the youth market by placing vaporized campaigns
on youth-oriented websites and media and using influencers and
affiliates to amplify their message to a teenage audience. The
Defendants have successfully caused more young people to start
using e-cigarettes, creating a youth e-cigarette epidemic and
public health crisis, the suit alleges.
Southeast Local School District is a unified school district with
its offices located at 9048 Dover Road, Apple Creek, Ohio.
JUUL Labs, Inc., formerly known as Pax Labs, Inc., is an American
electronic cigarette company, with its principal place of business
in San Francisco, California.
Altria Group, Inc. is a producer of tobacco products, with its
principal place of business in Richmond, Virginia.
Philip Morris USA, Inc. is a wholly-owned subsidiary of Altria
Group, Inc., with its principal place of business in Richmond,
Virginia.
Altria Client Services LLC is a tobacco company, with its principal
place of business in Richmond, Virginia.
Altria Group Distribution Company is a tobacco company, with its
principal place of business in Richmond, Virginia. [BN]
The Plaintiff is represented by:
James Frantz, Esq.
William B. Shinoff, Esq.
FRANTZ LAW GROUP, APLC
402 W. Broadway, Ste. 860
San Diego, CA 92101
Telephone: (619) 233-5945
Facsimile: (619) 525-7672
E-mail: jpf@frantzlawgroup.com
wshinoff@frantzlawgroup.com
JUUL LABS: N.Y. School District Sues Over Youth E-Cigarette Crisis
------------------------------------------------------------------
CAMDEN CENTRAL SCHOOL DISTRICT, on behalf of itself and all others
similarly situated, Plaintiff v. JUUL LABS, INC. F/K/A PAX LABS,
INC.; JAMES MONSEES; ADAM BOWEN; NICHOLAS PRITZKER; HOYOUNG HUH;
RIAZ VALANI; ALTRIA GROUP, INC.; ALTRIA CLIENT SERVICES LLC; ALTRIA
GROUP DISTRIBUTION COMPANY; and PHILIP MORRIS USA, INC.,
Defendants, Case No. 3:21-cv-04402 (N.D. Cal., June 9, 2021) is a
class action against the Defendants for negligence, gross
negligence, and violations of Public Nuisance Law and the Racketeer
Influenced and Corrupt Organizations Act.
According to the complaint, Defendants JUUL Labs and Adam Bowen
designed an e-cigarette device allegedly intended to create and
sustain addiction, but without the stigma associated with
cigarettes and promoted them to vulnerable young population. JUUL
Labs and other Defendants developed and implemented a marketing
scheme to mislead users into believing that JUUL products contained
less nicotine than they actually do and were healthy and safe. The
Defendants enticed newcomers to nicotine with kid-friendly flavors
without ensuring the flavoring additives were safe for inhalation.
The Defendants targeted the youth market by placing vaporized
campaigns on youth-oriented websites and media and using
influencers and affiliates to amplify their message to a teenage
audience. The Defendants have successfully caused more young people
to start using e-cigarettes, creating a youth e-cigarette epidemic
and public health crisis, the suit alleges.
Camden Central School District is a unified school district with
its offices located on 51 Third Street in Camden, New York.
JUUL Labs, Inc., formerly known as Pax Labs, Inc., is an American
electronic cigarette company, with its principal place of business
in San Francisco, California.
Altria Group, Inc. is a producer of tobacco products, with its
principal place of business in Richmond, Virginia.
Philip Morris USA, Inc. is a wholly-owned subsidiary of Altria
Group, Inc., with its principal place of business in Richmond,
Virginia.
Altria Client Services LLC is a tobacco company, with its principal
place of business in Richmond, Virginia.
Altria Group Distribution Company is a tobacco company, with its
principal place of business in Richmond, Virginia. [BN]
The Plaintiff is represented by:
James Frantz, Esq.
William B. Shinoff, Esq.
FRANTZ LAW GROUP, APLC
402 W. Broadway, Ste. 860
San Diego, CA 92101
Telephone: (619) 233-5945
E-mail: jpf@frantzlawgroup.com
wshinoff@frantzlawgroup.com
JUUL LABS: Promotes E-Cigarette to Youth, Md. School District Says
------------------------------------------------------------------
Cecil County Public Schools, on behalf of itself and all others
similarly situated, Plaintiff v. JUUL LABS, INC. F/K/A PAX LABS,
INC.; JAMES MONSEES; ADAM BOWEN; NICHOLAS PRITZKER; HOYOUNG HUH;
RIAZ VALANI; ALTRIA GROUP, INC.; ALTRIA CLIENT SERVICES LLC; ALTRIA
GROUP DISTRIBUTION COMPANY; and PHILIP MORRIS USA, INC.,
Defendants, Case No. 3:21-cv-04371 (N.D. Cal., June 8, 2021) is a
class action against the Defendants for negligence, gross
negligence, and violations of Public Nuisance Law and the Racketeer
Influenced and Corrupt Organizations Act.
According to the complaint, Defendants JUUL Labs and Adam Bowen
designed an e-cigarette device allegedly intended to create and
sustain addiction, but without the stigma associated with
cigarettes and promoted them to vulnerable young population. JUUL
Labs and other Defendants developed and implemented a marketing
scheme to mislead users into believing that JUUL products contained
less nicotine than they actually do and were healthy and safe. The
Defendants enticed newcomers to nicotine with kid-friendly flavors
without ensuring the flavoring additives were safe for inhalation.
The Defendants targeted the youth market by placing vaporized
campaigns on youth-oriented websites and media and using
influencers and affiliates to amplify their message to a teenage
audience. The Defendants have successfully caused more young people
to start using e-cigarettes, creating a youth e-cigarette epidemic
and public health crisis, the suit alleges.
Cecil County Public Schools is a unified school district with its
offices located at 201 Booth Street in Elkton, Maryland.
JUUL Labs, Inc., formerly known as Pax Labs, Inc., is an American
electronic cigarette company, with its principal place of business
in San Francisco, California.
Altria Group, Inc. is a producer of tobacco products, with its
principal place of business in Richmond, Virginia.
Philip Morris USA, Inc. is a wholly-owned subsidiary of Altria
Group, Inc., with its principal place of business in Richmond,
Virginia.
Altria Client Services LLC is a tobacco company, with its principal
place of business in Richmond, Virginia.
Altria Group Distribution Company is a tobacco company, with its
principal place of business in Richmond, Virginia. [BN]
The Plaintiff is represented by:
James Frantz, Esq.
William B. Shinoff, Esq.
FRANTZ LAW GROUP, APLC
402 W. Broadway, Ste. 860
San Diego, CA 92101
Telephone: (619) 233-5945
Facsimile: (619) 525-7672
E-mail: jpf@frantzlawgroup.com
wshinoff@frantzlawgroup.com
JUUL LABS: Promotes E-Cigarette to Youth, Tenn. School Claims
-------------------------------------------------------------
Humphreys County School System, on behalf of itself and all others
similarly situated, Plaintiff v. JUUL LABS, INC. F/K/A PAX LABS,
INC.; JAMES MONSEES; ADAM BOWEN; NICHOLAS PRITZKER; HOYOUNG HUH;
RIAZ VALANI; ALTRIA GROUP, INC.; ALTRIA CLIENT SERVICES LLC; ALTRIA
GROUP DISTRIBUTION COMPANY; and PHILIP MORRIS USA, INC.,
Defendants, Case No. 3:21-cv-04405 (N.D. Cal., June 9, 2021) is a
class action against the Defendants for negligence, gross
negligence, and violations of Public Nuisance Law and the Racketeer
Influenced and Corrupt Organizations Act.
According to the complaint, Defendants JUUL Labs and Adam Bowen
designed an e-cigarette device allegedly intended to create and
sustain addiction, but without the stigma associated with
cigarettes and promoted them to vulnerable young population. JUUL
Labs and other Defendants developed and implemented a marketing
scheme to mislead users into believing that JUUL products contained
less nicotine than they actually do and were healthy and safe. The
Defendants enticed newcomers to nicotine with kid-friendly flavors
without ensuring the flavoring additives were safe for inhalation.
The Defendants targeted the youth market by placing vaporized
campaigns on youth-oriented websites and media and using
influencers and affiliates to amplify their message to a teenage
audience. The Defendants have successfully caused more young people
to start using e-cigarettes, creating a youth e-cigarette epidemic
and public health crisis, the suit alleges.
Humphreys County School System is a unified school district with
its offices located at 2443 Highway 70 East in Waverly, Tennessee.
JUUL Labs, Inc., formerly known as Pax Labs, Inc., is an American
electronic cigarette company, with its principal place of business
in San Francisco, California.
Altria Group, Inc. is a producer of tobacco products, with its
principal place of business in Richmond, Virginia.
Philip Morris USA, Inc. is a wholly-owned subsidiary of Altria
Group, Inc., with its principal place of business in Richmond,
Virginia.
Altria Client Services LLC is a tobacco company, with its principal
place of business in Richmond, Virginia.
Altria Group Distribution Company is a tobacco company, with its
principal place of business in Richmond, Virginia. [BN]
The Plaintiff is represented by:
James Frantz, Esq.
William B. Shinoff, Esq.
FRANTZ LAW GROUP, APLC
402 W. Broadway, Ste. 860
San Diego, CA 92101
Telephone: (619) 233-5945
Facsimile: (619) 525-7672
E-mail: jpf@frantzlawgroup.com
wshinoff@frantzlawgroup.com
JUUL LABS: School District Sues Over Youth E-Cigarette Crisis
-------------------------------------------------------------
BRISTOL TENNESSEE CITY SCHOOLS, on behalf of itself and all others
similarly situated, Plaintiff v. JUUL LABS, INC. F/K/A PAX LABS,
INC.; JAMES MONSEES; ADAM BOWEN; NICHOLAS PRITZKER; HOYOUNG HUH;
RIAZ VALANI; ALTRIA GROUP, INC.; ALTRIA CLIENT SERVICES LLC; ALTRIA
GROUP DISTRIBUTION COMPANY; and PHILIP MORRIS USA, INC.,
Defendants, Case No. 3:21-cv-04375 (N.D. Cal., June 8, 2021) is a
class action against the Defendants for negligence, gross
negligence, and violations of Public Nuisance Law and the Racketeer
Influenced and Corrupt Organizations Act.
According to the complaint, Defendants JUUL Labs and Adam Bowen
designed an e-cigarette device allegedly intended to create and
sustain addiction, but without the stigma associated with
cigarettes and promoted them to vulnerable young population. JUUL
Labs and other Defendants developed and implemented a marketing
scheme to mislead users into believing that JUUL products contained
less nicotine than they actually do and were healthy and safe. The
Defendants enticed newcomers to nicotine with kid-friendly flavors
without ensuring the flavoring additives were safe for inhalation.
The Defendants targeted the youth market by placing vaporized
campaigns on youth-oriented websites and media and using
influencers and affiliates to amplify their message to a teenage
audience. The Defendants have successfully caused more young people
to start using e-cigarettes, creating a youth e-cigarette epidemic
and public health crisis, the suit alleges.
Bristol Tennessee City Schools is a unified school district with
its offices located at 615 Martin Luther King Jr. Boulevard in
Bristol, Tennessee.
JUUL Labs, Inc., formerly known as Pax Labs, Inc., is an American
electronic cigarette company, with its principal place of business
in San Francisco, California.
Altria Group, Inc. is a producer of tobacco products, with its
principal place of business in Richmond, Virginia.
Philip Morris USA, Inc. is a wholly-owned subsidiary of Altria
Group, Inc., with its principal place of business in Richmond,
Virginia.
Altria Client Services LLC is a tobacco company, with its principal
place of business in Richmond, Virginia.
Altria Group Distribution Company is a tobacco company, with its
principal place of business in Richmond, Virginia. [BN]
The Plaintiff is represented by:
James Frantz, Esq.
William B. Shinoff, Esq.
FRANTZ LAW GROUP, APLC
402 W. Broadway, Ste. 860
San Diego, CA 92101
Telephone: (619) 233-5945
E-mail: jpf@frantzlawgroup.com
wshinoff@frantzlawgroup.com
JUUL LABS: School District Sues Over Youth Health Crisis in Wis.
----------------------------------------------------------------
SCHOOL DISTRICT OF ASHLAND, on behalf of itself and all others
similarly situated, Plaintiff v. JUUL LABS, INC. F/K/A PAX LABS,
INC.; JAMES MONSEES; ADAM BOWEN; NICHOLAS PRITZKER; HOYOUNG HUH;
RIAZ VALANI; ALTRIA GROUP, INC.; ALTRIA CLIENT SERVICES LLC; ALTRIA
GROUP DISTRIBUTION COMPANY; and PHILIP MORRIS USA, INC.,
Defendants, Case No. 3:21-cv-04409 (N.D. Cal., June 9, 2021) is a
class action against the Defendants for negligence, gross
negligence, and violations of Public Nuisance Law and the Racketeer
Influenced and Corrupt Organizations Act.
According to the complaint, the Defendants used three tactics to
maintain market dominance in the cigarette industry: (1) product
design to maximize addiction, (2) mass deception, and (3) targeting
of youth. Defendants JUUL Labs and Adam Bowen designed an
e-cigarette device allegedly intended to create and sustain
addiction, but without the stigma associated with cigarettes and
promoted them to vulnerable young population. JUUL Labs and other
Defendants developed and implemented a marketing scheme to mislead
users into believing that JUUL products contained less nicotine
than they actually do and were healthy and safe. The Defendants
enticed newcomers to nicotine with kid-friendly flavors without
ensuring the flavoring additives were safe for inhalation. The
Defendants targeted the youth market by placing vaporized campaigns
on youth-oriented websites and media and using influencers and
affiliates to amplify their message to a teenage audience. The
Defendants have successfully caused more young people to start
using e-cigarettes, creating a youth e-cigarette epidemic and
public health crisis, the suit alleges.
School District of Ashland is a unified school district with its
offices located at 2000 Beaser Avenue in Ashland, Wisconsin.
JUUL Labs, Inc., formerly known as Pax Labs, Inc., is an American
electronic cigarette company, with its principal place of business
in San Francisco, California.
Altria Group, Inc. is a producer of tobacco products, with its
principal place of business in Richmond, Virginia.
Philip Morris USA, Inc. is a wholly-owned subsidiary of Altria
Group, Inc., with its principal place of business in Richmond,
Virginia.
Altria Client Services LLC is a tobacco company, with its principal
place of business in Richmond, Virginia.
Altria Group Distribution Company is a tobacco company, with its
principal place of business in Richmond, Virginia. [BN]
The Plaintiff is represented by:
James Frantz, Esq.
William B. Shinoff, Esq.
FRANTZ LAW GROUP, APLC
402 W. Broadway, Ste. 860
San Diego, CA 92101
Telephone: (619) 233-5945
Facsimile: (619) 525-7672
E-mail: jpf@frantzlawgroup.com
wshinoff@frantzlawgroup.com
KATIONX CORP: Pascual Files ADA Suit in S.D. New York
-----------------------------------------------------
A class action lawsuit has been filed against KationX Corp. The
case is styled as Domingo Pascual, on behalf of himself and all
others similarly situated v. KationX Corp., Case No. 1:21-cv-05155
(S.D.N.Y., June 10, 2021).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Kationx -- https://www.kationx.com/ -- is a fast growing, Florida
based, technology company that manufactures environmentally safe
products for the Wastewater Treatment and Horizontal Directional
Drilling industries.[BN]
The Plaintiff is represented by:
Joseph H. Mizrahi, Esq.
COHEN & MIZRAHI LLP
300 Cadman Plaza West, 12th Floor
Brooklyn, NY 11201
Phone: (929) 575-4175
Fax: (929) 575-4195
Email: joseph@cml.legal
KIRKLAND'S STORES: Miles Suit Seeks to Certify Classes & Subclasses
-------------------------------------------------------------------
In the class action lawsuit captioned as ARIANA MILES,
individually, and on behalf of other members of the general public
similarly situated and on behalf of other aggrieved employees
pursuant to the California Private Attorneys General Act, v.
KIRKLAND'S STORES, INC., Case No. 5:18-cv-01559-JWH-SHK (C.D.
Cal.), the Plaintiff will move the Court on August 6, 2021 to enter
an order:
1. determining that a class action is proper as to all causes
of
action in the Class Action Complaint pursuant to Federal Rule
of Civil Procedure 23;
2. determining that class treatment is appropriate under Federal
Rule of Civil Procedure 23(b)(3);
3. certifying the following Class(es) and/or Subclass(es):
a. All of the Defendant's past and present non-exempt,
hourly-paid employees in California from May 24, 2014
through the present;
b. All of Defendant's past and present California non-exempt,
hourly-paid employees who spent time going through a
security check/bag check process while off-the-clock from
May 24, 2014 through the present;
c. All of Defendant's past and present California non-exempt,
hourly-paid employees who performed work, or otherwise
were required to wait to perform work, prior to clocking
in or after clocking out for their shift from May 24, 2014
through the present;
d. All of Defendant's past and present California non-exempt,
hourly-paid employees who worked more than five hours in a
shift from May 24, 2014 through the present;
e. All of Defendant's past and present California non-
exempt, hourly-paid employees who worked more than eight
hours in a shift from May 24, 2014 through the present;
f. All of Defendant's past and present California non-exempt,
hourly-paid employees who received an itemized written
wage statement at any time from May 24, 2014 through the
present; and
g. All of Defendant's past and present California non-exempt,
hourly-paid employees who were required to use their
personal cell phone for work from May 24, 2014 through the
present;
4. Finding Plaintiff Ariana Miles to be an adequate
representative and certifying her as the class
representative;
5. Finding Plaintiff's counsel and their respective firms,
namely Carolyn H. Cottrell, David C. Leimbach, and Michelle
S. Lim of Schneider Wallace Cottrell Konecky LLP, and Edwin
Aiwazian and Arby Aiwazian of Lawyers for Justice, PC, as
adequate class counsel and certifying them as class counsel
Kirkland's Stores, Inc. operates as a home furnishing store.
A copy of the Plaintiff's motion to certify class dated June 9,
2021 is available from PacerMonitor.com at https://bit.ly/3pLgDRy
at no extra charge.[CC]
The Attorneys for Plaintiff, the Putative Class, Aggrieved
Employees, and the State of California, are:
Carolyn H. Cottrell, Esq.
David C. Leimbach, Esq.
Michelle S. Lim, Esq.
SCHNEIDER WALLACE
COTTRELL KONECKY LLP
2000 Powell Street, Suite 1400
Emeryville, CA 94608
Telephone: (415) 421-7100
Facsimile: (415) 421-7105
E-mail: ccottrell@schneiderwallace.com
dleimbach@schneiderwallace.com
mlim@schneiderwallace.com
- and -
Edwin Aiwazian, Esq.
Arby Aiwazian, Esq.
LAWYERS for JUSTICE, PC
410 West Arden Avenue, Suite 203
Glendale, CA 91203
Telephone: (818) 265-1020
Facsimile: (818) 265-1021
E-mail: edwin@calljustice.com
arby@calljustice.com
KODIAK CAKES: Angeles Files ADA Suit in S.D. New York
-----------------------------------------------------
A class action lawsuit has been filed against Kodiak Cakes, LLC.
The case is styled as Jenisa Angeles, on behalf of herself and all
others similarly situated v. Kodiak Cakes, LLC, Case No.
1:21-cv-05182 (S.D.N.Y., June 10, 2021).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Kodiak Cakes -- https://kodiakcakes.com/ -- is a brand of pancake
and waffle mix.[BN]
The Plaintiff is represented by:
Mark Rozenberg, Esq.
STEIN SAKS, PLLC
285 Passaic Street
Hackensack, NJ 07601
Phone: (201) 282-6500
Email: mrozenberg@steinsakslegal.com
KOHL'S CORP: Mollett Sues Over Unpaid OT for Call Center Agents
---------------------------------------------------------------
MARIANA MOLLETT, individually and on behalf of all others similarly
situated, Plaintiff v. KOHL'S CORPORATION, Defendant, Case No.
2:21-cv-00707-PP (E.D. Wis., June 8, 2021) is a class action
against the Defendant for violations of the Fair Labor Standards
Act and Texas common law by failing to pay overtime for all hours
worked in excess of 40 hours in a workweek, failing to provide meal
breaks or pay premiums in lieu thereof, and failing to provide rest
breaks or pay premiums in lieu thereof.
The Plaintiff worked for the Defendant as a call-center employee in
San Antonio, Texas from approximately October 2010 until January
2021.
Kohl's Corporation is an omnichannel retailer headquartered in
Milwaukee, Wisconsin. [BN]
The Plaintiff is represented by:
Summer H. Murshid, Esq.
Gregory P. Stratz, Esq.
HAWKS QUINDEL, S.C.
222 East Erie, Suite 210
P.O. Box 442
Milwaukee, WI 53201-0442
Telephone: (414) 271-8650
Facsimile: (414) 271-8442
E-mail: smurshid@hq-law.com
gstratz@hq-law.com
- and –
Clif Alexander, Esq.
Austin W. Anderson, Esq.
Lauren E. Braddy, Esq.
Alan Clifton Gordon, Esq.
Carter T. Hastings, Esq.
ANDERSON ALEXANDER, PLLC
819 N. Upper Broadway
Corpus Christi, TX 78401
Telephone: (361) 452-1279
Facsimile: (361) 452-1284
E-mail: clif@a2xlaw.com
austin@a2xlaw.com
lauren@a2xlaw.com
cgordon@a2xlaw.com
carter@a2xlaw.com
LAWLINE: Zwerin Files ADA Suit in W.D. Washington
-------------------------------------------------
A class action lawsuit has been filed against Lawline, et al. The
case is styled as Steven Zwerin, on his own behalf and on behalf of
all others similarly situated v. Lawline, a New York corporation;
ALM Media Holdings, a Delaware corporation; TRT CLE, a New York
corporation; Case No. 2:21-cv-00780-JRC (W.D. Wash., June 10,
2021).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Lawline -- https://www.lawline.com/ -- is the leading provider of
online continuing legal education offering legal intelligence to
attorneys in all 50 states.[BN]
The Plaintiff is represented by:
John F. Waldo, Esq.
LAW OFFICE OF JOHN F WALDO
2108 MCDUFFIE STREET
HOUSTON, TX 77019
Phone: (206) 849-5009
Email: johnfwaldo@hotmail.com
- and -
Roger M Townsend, Esq.
BRESKIN JOHNSON & TOWNSEND PLLC
1000 SECOND AVENUE, SUITE 3670
SEATTLE, WA 98104
Phone: (206) 652-8660
Fax: (206) 652-8290
Email: rtownsend@bjtlegal.com
LEARJET INC: Wood Wins Conditional Collective Action Cert. Bid
--------------------------------------------------------------
In the class action lawsuit captioned as MARK WOOD AND DENNIS PARR,
on behalf of themselves and all others similarly situated, v.
LEARJET, INC. AND BOMBARDIER, INC., Case No. 2:18-cv-02621-EFM-GEB
(D. Kan.), the Hon. Judge Eric F. Melgren entered an order:
1. granting the Plaintiffs' motion for conditional collective
action certification;
2. directing the Defendants to provide, to the extent not
previously provided, the last known home mailing addresses,
personal email addresses, and personal phone numbers of all
potential class members;
3. directing the Defendants to provide the last four digits of
social security numbers for all members of the class whose
mailed notices are returned undeliverable;
4. approving Mark Woods and Dennis Parr as the class
representatives; and
5. directing parties to confer and submit an Agreed Notice to
the Court to be sent to the class members by United States
mail and email.
The Court declines to narrow the collective class to these limited
circumstances. Although Plaintiffs contend that Defendants engaged
in a pattern of placing older employees on subjective PIPs and then
terminating their employment when they failed to reach those
expectations, Plaintiffs also contend that some employees were
threatened with placement on a PIP and left employment because they
believed that they would be constructively discharged. In addition,
the Plaintiffs include allegations that Defendants stated their
intention to reduce the average age of the BFTC workforce, and
shortly after stating this intention, several older employees were
terminated and told that their terminations did not relate to poor
job performance. Accordingly, the Defendants' proposal is too
restrictive. In sum, the Court finds that the following class
definition is appropriate:
"all persons who were non-bargaining unit personnel employed in
the Bombardier Flight Test Center in Wichita, Kansas on April 2,
2016, and whose employment thereafter ended, and were forty
years of age or older at the time their employment ended."
The Plaintiffs Mark Wood and Dennis Parr, on behalf of themselves
and all others similarly situated, bring a claim against the
Defendants Learjet, Inc. and Bombardier, Inc. under the Age
Discrimination in Employment Act (ADEA). They claim that the
Defendants engaged in a pattern and practice of age discrimination
culminating in their terminations. This matter is before the Court
on the Plaintiffs' Motion for Conditional Collective Action
Certification. Because the Court finds that Plaintiffs meets the
standard for conditional certification, the Court grants
Plaintiffs' motion.
A copy of the Court's memorandum and order dated June 9, 2021 is
available from PacerMonitor.com at https://bit.ly/3zobG5u at no
extra charge.[CC]
LEONARD DIPASQUALE: FLSA Suit Seeks to Certify Exotic Dancer Class
------------------------------------------------------------------
In the class action lawsuit captioned as TONI ANN QUAGLIARIELLO,
MARIA SIMON, and CHRISTLYNN KARNS, individually and on behalf of
all similarly situated persons, v. LEONARD DiPASQUALE, individually
and t/d/b/a LEAVE IT TO BEAVERS GENTLEMEN'S CLUB and/or TAVERN IN
THE GLEN, JOHN DOE t/d/b/a LEAVE IT TO BEAVERS GENTLEMEN'S CLUB,
DUANE CRAIG, and JOSEPH SHOEMAKER, Case No. 3:20-cv-00699-RDM (M.D.
Pa.), the Plaintiffs ask the Court to enter an order certifying
this action as a Fair Labor Standards Act collective action and to
permit Plaintiffs' counsel to send notice to the potential members
of the collective:
"all current and former exotic dancers who provided services at
Leave it to Beavers Gentlemen's Club at any time from April 27,
2017 through the entry of final judgment in this case."
A copy of the Plaintiffs' motion to certify class dated June 9,
2021 is available from PacerMonitor.com at https://bit.ly/3iOCCFZ
at no extra charge.[CC]
The Plaintiffs are represented by:
Peter C. Wood, Jr., Esq.
Matthew Mobilio, Esq.
MOBILIO WOOD
900 Rutter Ave., Box 24
Forty Fort, PA 18704
Telephone: (570) 234-0442
Facsimile: (570) 266-5402
E-mail: peter@mobiliowood.com
matt@mobiliowood.com
- and -
Alex Pisarevsky, Esq.
Erika R. Piccirillo, Esq.
COHN LIFLAND PEARLMAN
HERRMANN & KNOPF LLP
Park 80 West-Plaza One
250 Pehle Avenue, Suite 401
Saddle Brook, NJ 07663
Telephone: (201) 845-9600
Facsimile: (201) 845-9423
E-mail: ep@njlawfirm.com
ap@njlawfirm.com
LEVY ELECTRIC: Pascual Files ADA Suit in S.D. New York
------------------------------------------------------
A class action lawsuit has been filed against Levy Electric Inc.
The case is styled as Domingo Pascual, on behalf of himself and all
others similarly situated v. Levy Electric Inc., Case No.
1:21-cv-05156 (S.D.N.Y., June 10, 2021).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Levy -- https://www.levyelectric.com/ -- is primarily focused on
direct-to-consumer electric scooters but started expanding into
rental fleets in 2019.[BN]
The Plaintiff is represented by:
Joseph H. Mizrahi, Esq.
COHEN & MIZRAHI LLP
300 Cadman Plaza West, 12th Floor
Brooklyn, NY 11201
Phone: (929) 575-4175
Fax: (929) 575-4195
Email: joseph@cml.legal
LIBERTY INSURANCE: 11th Cir. Affirms Summary Judgment in Horn Suit
------------------------------------------------------------------
In the case, JACOB HORN, individually and on behalf of all others
similarly situated as assignees of Ican Benefit Group LLC, a
Florida Limited Liability company, ROBERT VETTER, individually and
on behalf of all others similarly situated as assignees of Ican
Benefit Group LLC, a Florida Limited Liability company,
Plaintiffs-Appellants v. LIBERTY INSURANCE UNDERWRITERS, INC.,
Defendant-Appellee, Case No. 19-12525 (11th Cir.), the U.S. Court
of Appeals for the Eleventh Circuit affirms the district court's
grant of summary judgment to Liberty.
The appeal requires the Court of Appeals to interpret an insurance
agreement between iCan, a Florida company, and its insurance
provider, Liberty Insurance. It must determine, under Florida law,
whether a policy exclusion barring coverage for claims arising out
of an invasion of privacy excludes coverage for claims alleging
violations of the Telephone Consumer Protection Act of 1991
("TCPA") in which the complaint repeatedly alleges that the
defendants invaded the privacy of the Plaintiffs.
The class action lawsuit at issue in the appeal revolved around
iCan sending "unsolicited text messages to cellular telephones
without the consent of the recipients." The class complaint,
brought by class representative Horn, specifically alleged two
causes of action -- both for TCPA violations: one for violations of
47 U.S.C. Section 227(b)(1)(A)(iii), and one for violations of 47
U.S.C. Section 227(b)(1)(B).
The complaint alleged that iCan not only invaded the personal
privacy of the Plaintiff and the members of the putative Classes,
but also intentionally and repeatedly violated the TCPA. It also
alleged that iCan has caused consumers actual harm in the form of
annoyance, nuisance, and invasion of privacy, and that the text
messages disturbed Horn's use and enjoyment of his phone, in
addition to the wear and tear on the phone's hardware (including
the phone's battery) and the consumption of memory on Horn's phone.
The class action sought actual and statutory damages for the
alleged TCPA violations.
At the time the class action was filed, iCan was insured by
Liberty. Under the liability policy provision of their insurance
agreement, Liberty was obligated to "pay on behalf of iCan Loss
which the Company becomes legally obligated to pay by reason of any
Claim for any Wrongful Acts by the Company taking place prior to
the end of the Policy Period." The insurance policy defined the
term "Claim" as, among other things, "a civil proceeding against
any Insured commenced by the service of a complaint or similar
pleading." The policy also listed several exclusions to the
liability provision.
After the class action was filed, iCan asked Liberty to defend and
indemnify it in the lawsuit, but Liberty declined to do so.
Liberty wrote iCan a letter that included several justifications
for denying coverage under the policy -- one of which was that the
invasion of privacy exclusion applied because the complaint was
based upon allegations that the class members' privacy rights were
violated by iCan sending unsolicited text messages.
After iCan received the coverage denial letter from Liberty, it
entered into a settlement agreement with the class Plaintiffs.
iCan agreed it was liable to the class for $60,413,112. That
aggregate amount was not broken down into "actual" versus
"statutory" damages, nor was the amount broken down into loss that
arose from privacy harms versus loss that arose from nuisance,
annoyance, or property damage. The agreement provided that "the
Judgment may not be satisfied from or executed on any assets or
property of iCan," but "shall only be satisfied from Liberty." The
agreement assigned iCan's rights against Liberty under its
insurance policy to the class Plaintiffs. After a fairness
hearing, the district court approved the class action settlement.
To recover under the settlement agreement, the class Plaintiffs
filed an action against Liberty seeking declaratory relief that it
was entitled to recover under the policy. After Liberty's motion
to dismiss the action was denied, both parties moved for summary
judgment. The class Plaintiffs argued that iCan's insurance policy
covered the class action, which meant that Liberty had a duty to
defend and indemnify iCan in the lawsuit, while Liberty argued that
the invasion of privacy exclusion applied to the class action and
precluded recovery. Liberty also argued, in its opposition to the
class Plaintiffs' motion for summary judgment, that the class could
not recover under the policy in any event because iCan failed to
allocate between covered and noncovered losses in the settlement
agreement.
The district court granted Liberty's motion for summary judgment.
It concluded that the insurance policy's invasion of privacy
exclusion applied to the class action lawsuit and barred coverage
for the entire action. The district court also concluded, in the
alternative, that even if only some of the settled losses were
precluded by the invasion of privacy exclusion, iCan's failure to
allocate the underlying settlement agreement into covered and
noncovered loss precluded recovery for any remaining covered loss.
The class Plaintiffs appealed.
Discussion
To resolve the appeal, the Eleventh must interpret the insurance
policy exclusion which provides that Liberty "shall not be liable
for Loss on account of any Claim made against iCan based upon,
arising out of, or attributable to any actual or alleged invasion
of privacy.
The class Plaintiffs argue that the class action is not excluded
from coverage by the invasion of privacy exclusion because the
class action alleged harms other than invasion of privacy, TCPA
claims do not include an element of invasion of privacy, and, at
the very least, the exclusion is ambiguous and should be resolved
in favor of coverage.
To give the invasion of privacy exclusion its "full meaning and
operative effect," the Eleventh Circuit focuses its analysis on
three of the operative terms in the invasion of privacy exclusion:
(1) "Claim"; (2) "arising out of"; and (3) "invasion of privacy."
A. "Claim"
Interpreting the term "Claim" is simple because the insurance
policy itself clearly and thoroughly defines the term as "a civil
proceeding against any Insured commenced by the service of a
complaint or similar pleading." In the case, therefore, the claim
is the civil proceeding against iCan commenced by the service of
the class action complaint. Accordingly, if any of the allegations
of the complaint are excluded from coverage, the entire lawsuit is
excluded, even if the complaint contains allegations that would
otherwise be covered.
This interpretation -- that the "claim" is the entire "civil
proceeding" -- is quite broad. But the rule requiring the Eleventh
Circuit to construe exclusions narrowly does not mean that
expansive definitions in insurance policies are impermissible. And
although it may be more "desirable to the insured" -- or the class
Plaintiffs -- to read the term "Claim" narrowly in the case, the
clear policy language prevents us from doing so. If the Eleventh
Circuit finds the civil proceeding "arose out of an invasion of
privacy," Liberty is not liable for any of the consent judgment.
B. "arising out of"
The Eleventh Circuit states that "arising out of" is a term of art
regularly used in insurance policies. The Supreme Court of Florida
has interpreted the phrase broadly and held that it is "broader in
meaning than the term 'caused by' and means 'originating from,'
'having its origin in,' 'growing out of,' 'flowing from,' 'incident
to' or 'having a connection with.'" Florida's broad interpretation
of the phrase "arising out of" means that if the class action even
"has a connection with" the invasion of privacy, the lawsuit falls
under the invasion of privacy exclusion.
C. "invasion of privacy"
The final step in the analysis is for the Eleventh to determine
whether the class action arose out of an "invasion of privacy." It
concludes that it did because the class complaint specifically
alleged that iCan intentionally invaded the class members' privacy
and sought recovery for those invasions. These allegations show
that the class claim clearly "has a connection with" the invasion
of privacy. Accordingly, as the "civil proceeding" in the case
"arises out of" an "invasion of privacy," the invasion of privacy
exclusion in the insurance policy applies. Like the district
court, the Eleventh Circuit need not determine whether TCPA
violations are per se invasions of privacy to reach the conclusion
that, in the case, the "civil proceeding" arose out of an "invasion
of privacy."
The class Plaintiffs and the dissent assert that the invasion of
privacy exclusion is ambiguous, and should be construed in the
favor of coverage, because one reasonable interpretation is that,
by listing multiple common law tort causes of action but not
statutory causes of action like the TCPA, the exclusion does not
reach a TCPA claim. In other words, the class Plaintiffs and
dissent argue that the exclusion applies only to common law torts,
and the complaint does not allege the common law tort of invasion
of privacy.
The Eleventh Circuit finds this argument is unavailing. The
insurance policy does not cabin the invasion of privacy exclusion
to claims alleging those listed tort causes of action, rather it
broadly excludes "civil proceedings" "arising out of" an "invasion
of privacy." Notably, the dissent omits that phrase from its
analysis and suggests that a plaintiff must state a common law tort
claim to trigger the coverage exclusion provision. That position
contravenes the Florida Supreme Court's broad interpretation of the
phrase because it would transform the phrase "arising out of" or
"having a connection with" into "for" any "invasion of privacy" in
the tort sense. But the policy as written cannot bear that
interpretation, and it is not our role to modify the terms of a
contract.
Accordingly, although the Eleventh Circuit acknowledges that
"invasion of privacy" is the name of a common law tort, it cannot
simply analyze the phrase, as the dissent proposes, without heeding
the interpretive constraints imposed by the other terms in the
policy.
Conclusion
Because the invasion of privacy exclusion barred coverage for the
class action, the Eleventh Circuit affirms the district court's
grant of summary judgment to Liberty.
A full-text copy of the Court's June 1, 2021 Order is available at
https://tinyurl.com/ft58v2hn from Leagle.com.
LIMETREE BAY: Boynes Sues Over Refinery's Environmental Disasters
-----------------------------------------------------------------
CLIFFORD BOYNES, CHRIS CHRISTIAN, MARGARET THOMPSON, DELIA
ALMESTICA, CARLOS CHRISTIAN, MINOR CHILD "J.M.M.", MINOR CHILD
"V.M.", MINOR CHILD "Z.R.C.", MINOR CHILD "M.M", MINOR CHILD
"O.N.", ANNA REXACH-CONSTANTINE, MERVYN CONSTANTINE, NEAL DAVIS,
EDNA SANTIAGO, GUIDRYCIA WELLS, O'SHAY WELLS, AARON G. MAYNARD,
VERNE MCSWEEN, ROCHELLE GOMEZ, JOAN MATHURIN, MYRNA MATHURIN, ANN
MARIE JOHN-BAPTISTE, WARRINGTON CHAPMAN and LEOBA JOHN-BAPTISTE
PELLE, on behalf of themselves and all others similarly situated,
Plaintiffs v. LIMETREE BAY VENTURES, LLC; LIMETREE BAY REFINING,
LLC; LIMETREE BAY TERMINALS, LLC; ARCLIGHT CAPITAL PARTNERS, LLC;
FREEPOINT COMMODITIES, LLC; EIG GLOBAL ENERGY PARTNERS, LLC; BP
PRODUCTS NORTH AMERICA, INC.; and JOHN DOES 1-100, Defendants, Case
No. 1:21-cv-00253 (D.V.I., June 9, 2021) is a class action against
the Defendants for negligence, negligence per se, abnormally
dangerous condition, response costs under the Comprehensive
Environmental Response, Compensation, and Liability Act, public
nuisance, private nuisance/trespass, statutory private nuisance,
medical monitoring, negligent infliction of emotional distress,
intentional infliction of emotional distress, and violation of the
Virgin Islands Air Pollution Control Act and the Virgin Islands
Water Pollution Control Act.
The case arises from the Defendants' unlawful operation of the
Limetree Bay Refinery, which caused environmental disasters that
threatened the citizens and local economy of St. Croix in the
Virgin Islands. The Plaintiffs and Class members have been
subjected to unreasonable odors, gases, vapors, and fumes which
contain toxins due to the Defendants' unlawful operation of the
refinery. The Defendants' discharge of oil and other chemicals,
toxins, and particulates, into the Plaintiffs' and Class Members'
residences and other properties, interfered with their use and
enjoyment of their homes and properties, damaged their homes and
properties, and caused personal injuries, the suit alleges.
Limetree Bay Ventures, LLC is an energy facility with its
headquarters located in the Virgin Islands.
Limetree Bay Refining, LLC is an operator of an oil refinery based
in Virgin Islands.
Limetree Bay Terminals, LLC is a joint venture that operates the
Limetree Bay Terminal in the Virgin Islands.
Arclight Capital Partners, LLC is a member of the joint venture
that owns and operates the Limetree Bay facility with its
headquarters located in Massachusetts.
Freepoint Commodities, LLC is a member of the joint venture that
owns and operates the Limetree Bay facility with its headquarters
located in Connecticut.
EIG Global Energy Partners, LLC is a private investments private
equity company, with its headquarters in Washington, D.C.
BP Products North America, Inc. is a company that involves in the
operation of an oil refinery, headquartered in Texas. [BN]
The Plaintiffs are represented by:
Jennifer Jones, Esq.
LAW OFFICES OF JENNIFER JONES
9003 Havensight Mall, Ste. 319
St. Thomas, VI 00802
Telephone: (340) 779-7386
Facsimile: (340) 714-5080
E-mail: jjones@vienvironmentallaw.com
- and –
Kerry J. Miller, Esq.
Paul C. Thibodeaux, Esq.
C. Hogan Paschal, Esq.
FISHMAN HAYGOOD, L.L.P.
201 St. Charles Avenue, 46th Floor
New Orleans, LA 70170
Telephone: (504) 586-5252
Facsimile: (504) 586-5250
E-mail: kmiller@fishmanhaygood.com
pthibodeaux@fishmanhaygood.com
hpaschal@fishmanhaygood.com
- and –
Hugh Lambert, Esq.
J. Christopher Zainey, Esq.
Brian Mersman, Esq.
THE LAMBERT FIRM, PLC
701 Magazine Street
New Orleans, LA 70130
Telephone: (504) 581-1750
Facsimile: (504) 529-2931
E-mail: hlambert@thelambertfirm.com
czainey@thelambertfirm.com
bmersman@thelambertfirm.com
MAPCO EXPRESS: Suit Seeks to Certify Class of Female Store Managers
-------------------------------------------------------------------
In the class action lawsuit captioned as JOY VASSER, and AMY
LUSANE, Individually and on Behalf of All Others Similarly
Situated, v. MAPCO EXPRESS, INC., Case No. 3:20-cv-00665 (M.D.
Tenn.), the Plaintiffs ask the Court to enter an order:
1. granting conditional collective action certification of
their
Equal Pay Act claim against Mapco pursuant to the Fair Labor
Standards Act;
2. conditionally certifying the following collective action
class definition:
"All female Store Managers at Defendant Mapco Express,
Inc.'s
and other similarly situated current and former employees
holding comparable positions but different titles at Mapco's
locations nationwide at any time from the three years prior
to the filing of Plaintiffs' Complaint, June 4, 2017 to the
present;"
3. approving notice to issue in the form and method proposed by
Plaintiffs to all members of the collective;
4. directing MAPCO to provide the Plaintiffs' counsel a computer
readable file (e.g., an Excel spreadsheet) with the name,
mailing address, phone number, dates of employment, store(s)
location, Social Security Number, and employee ID number for
each such worker, and to conspicuously post the notice in
each store.
5. directing that the requested information be provided by MAPCO
to the Plaintiffs' counsel within 14 days of the Court's
Order granting conditional certification;
6. giving 90 days during which putative collective members may
post-mark their consent forms, with the 90 days to commence
when the notice is mailed to the putative collective
members;
The Plaintiffs, all of whom are women, worked at Mapco in the Store
Manager position during the relevant time period. The Plaintiffs
allege and intend to prove that they were paid less than men in the
same positions performing the same work which requires equal skill,
effort, and responsibility and which are performed under similar
working conditions.
Mapco Express is located in Franklin, Tennessee and is part of the
Gas Stations Industry.
A copy of the Plaintiffs' motion to certify class dated June 9,
2021 is available from PacerMonitor.com at https://bit.ly/3zpKIL4
at no extra charge.[CC]
The Plaintiffs are represented by:
Rebecca S. Predovan, Esq.
Marc S. Hepworth, Esq.
Charles Gershbaum, Esq.
David A. Roth, Esq.
HEPWORTH GERSHBAUM & ROTH, PLLC
192 Lexington Avenue, Suite 802
New York, NY 10016
Telephone: (212)545-1199
Facsimile: (212) 532-3801
E-mail: mhepworth@hgrlawyers.com
cgershbaum@hgrlawyers.com
droth@hgrlawyers.com
rpredovan@hgrlawyers.com
- and -
David W. Garrison, Esq.
Joshua A. Frank, Esq.
BARRETT JOHNSTON MARTIN & GARRISON, LLC
Philips Plaza
414 Union Street, Suite 900
Nashville, TN 37219
Telephone: (615) 244-2202
Facsimile: (615) 252-3798
E-mail: dgarrison@barrettjohnston.com
jfrank@barrettjohnston.com
The Attorneys for the Defendant are:
J. Christopher Anderson, Esq.
Patricia J. Martin, Esq.
Allan G. King, Esq.
LITTLER MENDELSON, P.C.
333 Commerce Street, Suite 1450
Nashville, TN 37201
E-mail: chrisanderson@littler.com
pmartin@littler.com
agking@littler.com
MCDONALD'S CORP: BIPA Class Action Lands in Federal Court
---------------------------------------------------------
Kristin L. Bryan, Esq., of Squire Patton Boggs (US) LLP, in an
article for The National Law Review, reports that BIPA is a
frequently litigated data privacy statute, and as readers of CPW
know, we've been covering BIPA litigations for some time (for some
of our prior coverage, check out here, here and here). Often these
claims are brought in the context of a preexisting
employee-employer relationship, where employees allege that their
employer improperly collected their data in violation of BIPA for
timekeeping purposes. A recent BIPA lawsuit against McDonalds filed
on behalf of customers alleging that the fast food chain utilized
drive-thru voice assistants in Illinois which captured and stored
customers' biometric voiceprint identifiers without their written
consent breaks with this trend. Carpenter v. McDonald's
Corporation, Case No. 1:21-cv-02906 (N.D. Ill.). Read on to learn
more.
First, a quick recap. The Illinois Biometric Information Privacy
Act ("BIPA") was enacted in 2008 and has standards regarding the
retaining and handling of the biometric data of Illinois residents.
At its core, BIPA protects the "biometric information" of Illinois
residents, which is any information based on "biometric
identifiers" that identifies a specific person -- regardless of how
it is captured, converted, stored, or shared. 740 ILCS 14/10.
Biometric identifiers are, "a retina or iris scan, fingerprint,
voiceprint, or scan of hand or face geometry." Id. (collectively,
with "biometric information," "biometric data").
The Carpenter complaint, which was initially filed in Illinois
state court, alleges that "[i]n an effort to reduce costs and
staff, beginning sometime in 2020 McDonald's implemented an
artificial intelligence (AI) voice assistant in the drive through
of various McDonald's restaurants across the nation, including in
Illinois." The crux of Plaintiff's claim is that "McDonald's AI
voice assistant's voice recognition technology collects customers'
voiceprint biometrics in order to be able to correctly interpret
customer orders and to identify repeat customers to provide a
tailored experience." However, "McDonald's has failed to comply
with BIPA's regulations and does not notify its customers that when
they interact with McDonald's AI voice assistant their voiceprint
biometric information is used and collected, nor does McDonald's
obtain their consent to do so."
Plaintiffs proposed class includes "[a]ll individuals whose
voiceprint biometric identifiers or biometric information were
collected, captured, stored, transmitted, disseminated, or
otherwise used by or on behalf of Defendant within the state of
Illinois any time within the applicable limitations period and for
whom Defendant did not have any written record of consent to do
so."
While disputing Plaintiff's allegations, McDonald's had the case
removed to federal court under the federal Class Action Fairness
Act ("CAFA"). There, the court will address whether Plaintiff's
Complaint should make it past the pleading stage and enter
discovery, assuming McDonald's moves to dismiss. Ultimate questions
of liability will depend largely on McDonald's business practices,
and whether it was simply collecting voiceprints to understand
customers' orders or alternatively if it was "connecting the dots"
to ascertain customers' exact identities.
For instance, the Complaint alleges that, "McDonald's AI voice
assistant goes beyond real-time voiceprint analysis and recognition
and also incorporates 'machine-learning routines', that utilize
voiceprint recognition in combination with license plate scanning
technology to identify unique customers regardless of which
location they visit and present them certain menu items based on
their past visits." Of course, whether that allegation is
well-founded based upon McDonald's actual practices remains to be
seen.
For more on this litigation, stay tuned. As more states continue to
enact biometric laws with a private right of action, more entities
will find themselves named in similar litigation. CPW will be there
to keep you in the loop. Stay tuned. [GN]
MCKINSEY & COMPANY: Personal Injury Suit Moved to N.D. California
-----------------------------------------------------------------
The case styled BOARD OF COUNTY COMMISSIONERS OF KAY COUNTY, on
behalf of itself and all others similarly situated v. MCKINSEY &
COMPANY, INC., Case No. 5:21-cv-00176, was transferred from the
U.S. District Court for the Western District of Oklahoma to the
U.S. District Court for the Northern District of California on June
9, 2021.
The Clerk of Court for the Northern District of California assigned
Case No. 3:21-cv-04382-CRB to the proceeding.
In this class suit, the Plaintiff seeks actual damages caused by
the opioid epidemic, including but not limited to (1) costs for
providing medical care, additional therapeutic and prescription
drug purchases, and other treatments for patients suffering from
opioid-related addiction or disease, including overdoses and
deaths; (2) costs for providing treatment, counseling and
rehabilitation services; (3) costs for providing treatment of
infants born with opioid-related medical conditions; (4) costs of
providing care for children whose parents suffer from
opioid-related disability or incapacitation; (5) costs associated
with law enforcement and public safety relating to the opioid
epidemic; and (6) costs associated with drug court and other
resources expended through the judicial system.
McKinsey & Company, Inc. is a management consulting firm, with its
principal place of business in New York, New York. [BN]
The Defendant is represented by:
Robert G. McCampbell, Esq.
Jeffrey A. Curran, Esq.
Kyle D. Evans, Esq.
GABLEGOTWALS
Fifteenth Floor
One Leadership Square
211 North Robinson
Oklahoma City, OK 73102-7101
Telephone: (405) 235-5500
Facsimile: (405) 235-2875
E-mail: rmccampbell@gablelaw.com
jcurran@gablelaw.com
kevans@gablelaw.com
- and –
James L. Bernard, Esq.
David M. Cheifetz, Esq.
STROOCK & STROOCK & LAVAN LLP
180 Maiden Lane
New York, NY 10038
Telephone: (212) 806-5400
Facsimile: (212) 806-6006
E-mail: jbernard@stroock.com
dcheifetz@stroock.com
MDL 2389: Fund Distribution Plan in FB IPO Securities Suit Granted
------------------------------------------------------------------
In the case, IN RE FACEBOOK, INC. IPO SECURITIES AND DERIVATIVE
LITIGATION, MDL No. 1:12-md-02389-CM-GWG (S.D.N.Y.), Judge Colleen
McMahon of the U.S. District Court for the Southern District of New
York granted the Lead Plaintiffs' Motion for Approval of
Distribution Plan.
The Lead Plaintiffs moved the Court for an order approving a
distribution plan for the Net Settlement Fund in the securities
class action.
Having reviewed and considered all the materials and arguments
submitted in support of the motion, including the Memorandum in
Support of Lead Plaintiffs' Motion for Approval of Distribution
Plan and the Declaration of Adam D. Walter in Support of Lead
Plaintiffs' Motion for Approval of Distribution Plan, Judge McMahon
approved the Lead Plaintiffs' plan for the distribution of the Net
Settlement Fund to Authorized Claimants.
Accordingly:
(a) The administrative recommendations of the Court-approved
Claims Administrator, A.B. Data, Ltd. (A.B. Data). to accept the
Timely Eligible Claims set forth in Exhibit E to the Walter
Declaration, the Late But Otherwise Eligible Claims set forth in
Exhibit F to the Walter Declaration, and any pending defective
Claims that are cured 30 days prior to the Initial Distribution,
are adopted.
(b) The Claims Administrator's administrative recommendations
to reject the Rejected Claims as set forth in Exhibit G to the
Walter Declaration, including the Disputed Claims discussed in
paragraphs 27 to 30 of the Walter Declaration and Exhibit D to the
Walter Declaration (except for any pending defective Claims that
are cured 30 days prior to the Initial Distribution, which will be
accepted), are adopted.
(c) Upon the Effective Date of the Settlement, A.B. Data is
directed to conduct the Initial Distribution of approximately 95%
of the Net Settlement Fund, after deducting all payments previously
allowed and the payments approved by the Order, and after deducting
the payment of any estimated taxes, the costs of preparing
appropriate tax returns, and any escrow tees, while maintaining
approximately a 5% reserve from the Net Settlement Fund to address
any contingencies that may arise (the Initial Distribution).
(d) To encourage Authorized Claimants to cash their
distribution checks promptly, all distribution checks will bear the
following notation: CASH PROMPTLY. VOID AND SUBJECT TO
REDISTRIBUTION IF NOT CASHED BY [DATE 120 DAYS AFTER ISSUE DATE].
The Lead Counsel and A.B. Data are authorized to take appropriate
action to locate and contact any Authorized Claimant whose
distribution check is not cashed within said time as detailed in
paragraph 41(b) footnote 12 of the Walter Declaration.
(e) Authorized Claimants who do not cash their Initial
Distribution checks within the time allotted or on the conditions
stated in paragraph 41(b) footnote 12 of the Walter Declaration
will irrevocably forfeit all recovery from the Settlement, and the
funds allocated to all of these stale-dated checks will be
available to be distributed to other Authorized Claimants in the
Second Distribution. Similarly, Authorized Claimants who do not
cash their second or subsequent distribution checks, should such
distributions occur, within the time allotted or on the conditions
stated in paragraph 41(b) footnote 12 of the Walter Declaration
will irrevocably forfeit any further recovery from the Net
Settlement Fund.
(f) After A.B. Data has made reasonable and diligent efforts
to have Authorized Claimants cash their Initial Distribution
checks, as provided in paragraph 41(b) footnote 12 of the Walter
Declaration, but not earlier than six months after the Initial
Distribution, A.B. Data will, after consulting with Lead Counsel,
conduct the Second Distribution in which any amount remaining in
the Net Settlement Fund after the Initial Distribution. Additional
distributions, after deduction of costs and expenses as described
and subject to the same conditions, may occur thereafter in
six-month intervals until the Lead Counsel, in consultation with
A.B. Data, determine that further distribution is not
cost-effective.
(g) When the Lead Counsel, in consultation with A.B. Data,
determines that further distribution of the funds remaining in the
Net Settlement Fund is not cost-effective, if sufficient funds
remain to warrant the processing of Claims received after Jan. 2,
2021, those Claims will be processed, and any otherwise valid
Claims received after Jan. 2, 2021, as well as any earlier-received
Claims for which an adjustment was received within the 30 days
prior to the Initial Distribution or after the Initial Distribution
and resulted in an increased Recognized Claim amount, will be paid
in accordance with subparagraph (h). If any funds remain in the
Net Settlement Fund after payment of these late or late-adjusted
Claims, the remaining balance of the Net Settlement Fund, after
payment of any unpaid fees or expenses incurred in administering
the Net Settlement Fund and after the payment of any estimated
taxes, the costs of preparing appropriate tax returns, and any
escrow fees, will be contributed to the National Consumer Law
Center; and
(h) No new Claims may be accepted after Jan. 2, 2021, and no
further adjustments to Claims received on or before Jan. 2, 2021,
that would result in an increased Recognized Claim amount may be
made for any reason within the 30 days prior to the Initial
Distribution or after the Initial Distribution, subject to the
following exception.
A.B. Data's fees and expenses incurred in connection with providing
notice and the administration of the Settlement and estimated to be
incurred in connection with the Initial Distribution of the Net
Settlement Fund, as stated in the invoices attached as Exhibit II
to the Walter Declaration, are approved. The Lead Counsel are
directed to pay out of the Settlement Fund the outstanding balance
of $3,527,228.73, plus accrued interest at the same rate as earned
by the Settlement Fund, to A.B. Data, and its estimated fees and
expenses for work to be performed on behalf of the Class in
connection with the Initial Distribution in the amount of
$113,997.46.
Unless otherwise ordered by the Court, A.B. Data may destroy the
paper copies of the Claims and all supporting documentation one
year after the Second Distribution, and one year after all funds
have been distributed A.B. Data may destroy electronic copies of
the same.
The Court retains jurisdiction to consider any further applications
concerning the administration of the Settlement, and any other and
further relief that it deems appropriate.
A full-text copy of the Court's June 1, 2021 Order is available at
https://tinyurl.com/43fuucb6 from Leagle.com.
MISSOURI: $113-Mil. Judgment in Hootselle v. MDOC Affirmed in Part
------------------------------------------------------------------
In the case, THOMAS HOOTSELLE, JR., et al., individually and on
behalf of all others similarly situated, and MISSOURI CORRECTIONS
OFFICERS ASSOCIATION, Respondents v. MISSOURI DEPARTMENT OF
CORRECTIONS, Appellant, Case No. SC98252 (Mo.), the Supreme Court
of Missouri, En Banc, affirmed in part and vacated in part the
judgment of the Cole County circuit court awarding a class of
Missouri corrections officers approximately $113 million, plus
post-judgment interest for breach of contract.
The Plaintiffs are a class of corrections officers employed by the
Missouri Department of Corrections ("MDOC") and the corrections
officers' collective bargaining unit, the Missouri Corrections
Officers Association ("MOCOA"). The class covers approximately
14,000 officers employed within 21 correctional facilities.
MDOC employs the corrections officers to supervise, guard, escort,
and discipline offenders incarcerated in Missouri prisons. Before
arriving at their posts to perform these duties, however, the
corrections officers have long been required to perform a variety
of other tasks. These tasks are known within the MDOC as preshift
activities.
As part of their preshift activities, the officers log their
arrival, scan identification, sign entry and exit records or submit
to biometric identification, pass through security, report to a
supervisor, retrieve equipment, walk to their posts, and exchange
information with other corrections officers. Corrections officers
execute these same tasks in reverse upon leaving their posts. When
performed after leaving a post, these activities are referred to as
postshift activities. MDOC has never paid officers for time spent
performing preshift and postshift activities and has consistently
denied requests for overtime pay for time spent completing these
activities.
In 2007 and 2014, the corrections officers, through MOCOA, entered
into labor agreements with MDOC. The labor agreements govern a
wide array of corrections officers' rights and duties as MDOC
employees and the agreements incorporated MDOC's procedure manual's
definitions and terminology. The manual defines how state
compensatory time and federal overtime are earned by corrections
officers. Together, the agreement and the manual provide that MDOC
will comply with the Fair Labor Standards Act of 1938 (FLSA)
regarding the accrual and payment of overtime. The procedure
manual also states its purpose is to ensure departmental compliance
with the FLSA and that the corrections officers must be compensated
for "time worked."
In 2012, the corrections officers filed a class action lawsuit,
alleging MDOC breached its statutory obligations under the FLSA and
its contractual duties under the labor agreements to pay the
corrections officers for preshift and postshift activities. As
amended, the corrections officers' petition contains seven counts.
Counts I and II asserted freestanding claims for violations of
section 105.935.3, RSMo Supp. 2005, and the FLSA, respectively.
Count III alleged MDOC breached a contract created by operation of
section 105.935.3, RSMo Supp. 2005, and 1 C.S.R. 20-5.010(1)(E) by
failing to pay the corrections officers for preshift and postshift
activities. Counts IV and V alleged claims for damages under
unjust enrichment and quantum meruit theories, respectively. In
Count VI, MOCOA alleged MDOC breached the 2007 and 2014 labor
agreements by failing to pay the corrections officers for preshift
and postshift activities under the FLSA. In the alternative to
Count VI, MOCOA sought a declaration in Count VII that MDOC was
contractually obligated to compensate the corrections officers for
preshift and postshift work time pursuant to the labor agreements.
In 2014, MDOC filed a motion for judgment on the pleadings as to
Counts I and II, which the circuit court sustained. MDOC next
moved for summary judgment in 2016, claiming the corrections
officers' breach of contract claims should be treated the same as
freestanding claims for violations of the FLSA and dismissed. The
motion was overruled.
In June 2018, the corrections officers filed a motion for partial
summary judgment on their breach of contract claims, Counts III and
VI of the petition. Essentially, they sought to have the circuit
court determine MDOC was liable on its breach of contract claims
and leave the issue of damages to be decided by a jury.
As authorized under Rule 74.04(c)(6), the circuit court sustained
the corrections officers' motion, entering a partial summary
judgment that determined MDOC was liable for all preshift and
postshift activities under the terms of the agreements requiring
compliance with the FLSA. It further held the only issue remaining
for trial was a computation of the corrections officers' damages.
Before trial, the corrections officers filed a motion seeking to
exclude the expert testimony of MDOC's experts, Dr. Chester Hanvey
and Elizabeth Arnold, on grounds their testimony did not meet the
statutory requirements of section 490.065.2, RSMo Supp. 2018. The
circuit court sustained the corrections officers' motion, and the
case then proceeded to trial in August 2018. During trial, the
corrections officers presented the expert testimony of Dr. William
Rogers, who opined the corrections officers sustained actual
damages of approximately $113 million. MDOC again sought to
introduce the rebuttal testimony of Dr. Hanvey and made an offer of
proof outside the jury's presence, but the circuit court ruled
MDOC's expert testimony would remain excluded. The jury returned a
verdict awarding the corrections officers approximately $113
million.
The circuit court entered a judgment in favor of the corrections
officers on Counts III and VI, the breach of contract claims.
Counts IV and V were dismissed. The judgment also adjudicated
Count VII and declared the parties' contractual rights and
obligations under the labor agreements. Among other things, the
judgment declared the parties' labor agreements imposed a
contractual duty on MDOC to pay compensation for all work performed
by the corrections officers as required by the FLSA, including
preshift and postshift activities. The circuit court further
ordered MDOC to pay overtime compensation for preshift and
postshift activities prospectively and to implement a new
department-wide timekeeping system to track time spent performing
preshift and postshift activities.
MDOC appealed, and the Court granted transfer after an opinion by
the court of appeals. MDOC raises several issues on appeal,
including claims that the circuit court erred in: sustaining the
corrections officers' motion for partial summary judgment because
preshift and postshift activities are not compensable under the
FLSA; sustaining the corrections officers' motion for partial
summary judgment because they cannot maintain a private cause of
action; excluding MDOC's expert witnesses; overruling MDOC's motion
to decertify the class; and granting the corrections officers
declaratory and injunctive relief on an expired contract.
The Supreme Court concludes that the corrections officers'
statement of undisputed material facts in support of their motion
for partial summary judgment demonstrated, as a matter of law, that
the retrieval of keys and radios and the supervision of inmates
while walking to and from the corrections officers' daily posts are
integral and indispensable to their work as correction officers.
Under the continuous workday rule, all preshift and postshift
activities after the first and before the last principal activity
of either retrieving or returning keys and radios or supervising
inmates are also compensable.
The undisputed material facts do not establish, however, the
chronological order of the preshift and postshift activities to
permit a determination of which preshift and post activities are
compensable under the continuous workday rule, the Supreme Court
finds. Additionally, the undisputed facts are insufficient to show
all the other preshift and postshift activities are compensable as
principal activities, as a matter of law, so the circuit court's
determination that all preshift and postshift activities are
compensable was erroneous. The award of damages and the circuit
court's declaratory and injunctive relief were based on that
erroneous finding of liability, so those rulings are also
erroneous.
For these reasons, the Supreme Court affirmed the portion of the
circuit court's judgment determining MDOC must compensate the
corrections officers for time spent retrieving keys and radios and
time spent monitoring and supervising offenders while not on post
is affirmed. It vacated the remainder of the circuit court's
judgment. The cause is remanded.
A full-text copy of the Court's June 1, 2021 Opinion is available
at https://tinyurl.com/ynb9vh59 from Leagle.com.
NAVISTAR INT'L: Court Narrows Claims in Veterans Rideshare Suit
---------------------------------------------------------------
In the case, VETERANS RIDESHARE, INC.; CAR CHAMPS FINANCE, LLC;
YOUR LEASING SOLUTION, LLC, Plaintiffs v. NAVISTAR INTERNATIONAL
CORP.; NAVISTAR, INC.; DOES 1 through 100, inclusive, Defendants,
Case No. 20-cv-01304-BAS-LL (S.D. Cal.), Judge Cynthia Bashant of
the U.S. District Court for the Southern District of California
granted in part and denied in part the Navistar Defendants' motion
to dismiss the Plaintiffs' complaint for failing to state claims
upon which relief can be granted.
The Plaintiffs filed a Complaint in San Diego Superior Court on May
26, 2020. The Defendants removed the action to the Court on July
10, 2020 and subsequently moved to dismiss the Complaint.
On Aug. 21, 2020, the United States Judicial Panel on Multidistrict
Litigation ("MDL") conditionally transferred the action to the
Northern District of Illinois for coordinated or consolidated
pretrial proceedings. The court approved a class-wide settlement
in January 2020 that resolved most of the MDL disputes. As to the
cases that opted out of the settlement, including the instant
action, the Northern District of Illinois suggested remand to the
Judicial Panel on MDL because they involved case- and fact-specific
discovery and motion practice. The Panel thereafter ordered the
action remanded. The Court then reopened the case and ordered a
briefing schedule on the Defendants' Motion to Dismiss.
The Plaintiffs leased 141 MaxxForce Engine Vehicles ("Subject
Vehicles") from Sutton Leasing, Inc., a Michigan corporation, which
purchased them from Navistar. Plaintiff Veterans Rideshare is a
trucking company that offers specialized custom logistics" while
the other two Plaintiffs, Car Champs and Your Leasing, are in the
business of leasing vehicles to individual truckers and/or their
companies.
The Plaintiffs' Complaint arises from the allegedly defectively
designed emissions system in the engines of the Subject Vehicles,
which were manufactured, marketed, distributed, and sold by
Navistar. They allege that the Defendants elected to design the
engines of the Subject Vehicles using only an older technology
called "Exhaust Gas Recirculation" ("EGR") to comply with the
Environmental Protection Agency's ("EPA") emissions standards. EGR
technology cools and then recirculates part of an engine's exhaust
gas back into the engine cylinders, which lowers the in-cylinder
temperatures during combustion and reduces the amount of nitrogen
oxide produced. The Plaintiffs claim that Navistar made multiple
representations in marketing materials that its engines were
reliable, would ensure optimal long-term performance, and would be
both fuel efficient and low-cost.
However, the Plaintiffs allege, the EGR technology caused the
Subject Vehicles' engines to create more "particulate matter," or
soot, and required the cooling system to reject more heat into the
atmosphere ("heat rejection"), which overloaded the emissions
components and caused them to fail. The failures included clogged
and cracked EGR coolers and valves, leading to "engines shutting
down or losing power, EGR cooler or valve failures, turbocharger
failures, diesel particulate filter clogging, and other issues that
led to excessive downtime of Navistar Trucks." They also claim
that the sudden breakdowns required drivers to attempt emergency
maneuvers and can cause coolant and exhaust fumes to leak into the
passenger compartment of the trucks, posing a risk of poisoning the
drivers.
The Plaintiffs allege that Navistar knew about the defect as early
as 2004, when they received complaints and ultimately a lawsuit
from Ford regarding defects in EGR-only diesel engines used in its
vehicles. In addition, they claim a securities lawsuit alleged
that employees informed management about the limitations of
EGR-only engines, but that the information was ignored and
suppressed by management. Ultimately, the Plaintiffs contend,
Navistar could not design the engines to comply with EPA emissions
standards and were required to pay non-conformance penalties
("NCPs") to the EPA.
The Plaintiffs bring causes of action for negligence, negligent
misrepresentation, fraudulent concealment, fraud in the inducement,
and a violation of the California Unfair Competition Law (Bus. &
Prof. Code Section 17200).
Analysis
In their Motion, the Defendants argue that because the Plaintiffs
have alleged claims sounding in tort but seek to recover only
economic damages, all claims are barred by California's economic
loss rule. Additionally, regarding the fraud claims (negligent
misrepresentation, fraudulent concealment, and fraud in the
inducement) and the related UCL claim, the Defendants contend that
the alleged misrepresentations are puffery and therefore not
actionable as fraud, and that the claims themselves fail to satisfy
the pleading requirements of Rule 9(b). Lastly, they seek to
dismiss the UCL claim and the request for attorneys' fees as
deficient as a matter of law.
A. Economic Loss Rule
The Defendants move to dismiss all claims on the basis that the
Plaintiffs cannot seek only economic damages for tort claims
pursuant to California's economic loss rule. The Plaintiffs
respond that the economic loss rule does not apply because the
parties are not in privity, and therefore the law allows for
recovery in tort where Navistar's lack of ordinary care resulted in
harm to Plaintiffs' economic interests.
Judge Bashant finds that the absence of privity between the
Plaintiffs and Navistar renders the economic loss rule inapplicable
to the instant claims. Furthermore, the Plaintiffs' negligence
claim independently survives dismissal because a "special
relationship" exists between the parties to establish a duty owed
by Navistar to the Plaintiffs. Accordingly, the Judge finds that
the Plaintiffs have established a duty under the special
relationship analysis to sustain their negligence claim for
economic losses.
B. Puffery
As part of their negligent misrepresentation, fraud in the
inducement, and UCL claims, the Plaintiffs claim that Navistar made
false misrepresentations as to the quality of the EGR-only engines
on which theys reasonably relied, to their detriment, when they
entered into contracts to lease the Subject Vehicles from Sutton
Leasing. The Defendants allege these statements are puffery and
therefore cannot form the basis of fraud claims as a matter of
law.
Because the Plaintiffs do not proffer any counterarguments as to
why the other statements in the Complaint are not puffery, Judge
Bashant understands the Plaintiffs to waive their claims to the
extent they rely on these misrepresentations. Therefore, she only
addresses whether the above three statements are actionable.
The Judge finds that the alleged public statement that MaxxForce
engines in the Subject Vehicles would meet the 2010 EPA Standards
goes beyond mere puffery because it makes a specific assertion
about the engines that is measurable against a national standard.
Thus, the Defendants' alleged misrepresentation regarding the
ability of the MaxxForce engines to meet EPA standards is
actionable.
The Judge does not find the Defendants' alleged statement that the
EGR-only system was a "proven technology" is actionable. She says
the Complaint states only that the Defendants described EGR as
"proven technology," without any specifics as to how, when, where,
or by whom the technology was proven. This is the type of
imprecise assertion that "can neither be demonstrably true nor
false." Thus, the Judge finds this assertion is non-actionable
puffery on which no reasonable consumer could rely.
Lastly, the Judge finds that the Plaintiffs can sustain their fraud
claims on the alleged EPA statement and Navistar's purported
assertion about "optimized" EGR. She holds that the more specific
and technical description of the product's attributes is a more
concrete representation on which a reasonable consumer could rely
and does not constitute puffery. To the extent any fraud claims
are based on any other alleged misrepresentations, they are
dismissed with leave to amend.
C. Sufficiency of Fraud Claims Under Rule 9(b)
Alternatively, the Defendants argue that even if the alleged
misrepresentations are not puffery, the Plaintiffs have not
satisfied the heightened pleading standard under Rule 9(b) for
fraud-based claims. The Defendants argue that none of the fraud
claims state with particularity these details. Specifically, they
contend that the Plaintiffs' claims based on alleged omissions fail
because they have not identified the necessary legal duty owed by
the Defendants to the Plaintiffs to maintain these claims.
Judge Bashant finds that only the Plaintiffs' allegations regarding
the "Maintenance Information Guide" identify with the requisite
particularity the allegedly fraudulent material such that
Defendants can adequately respond. The remaining claims regarding
unspecified statements on Navistar's website and particular
assertions in "marketing materials" do not provide the requisite
detail to satisfy Rule 9(b)'s heightened pleading standard and are
therefore dismissed with leave to amend.
Judge Bashant further finds that she can reasonably infer that the
Defendants had exclusive knowledge about the EGR-only engines that
was unavailable to the public, and that consumers such as the
Plaintiffs "only became aware of the problem if they actually
experienced it first-hand. She says the Plaintiffs are not
imputing exclusive knowledge on Defendants only by virtue of their
involvement in the design of the engine; rather, the Complaint
incorporates specific allegations about Navistar's intentional
decision to suppress information about the defect and prevent the
development of alternative technologies despite repeatedly being
informed of engine failures and the limitations of using EGR-only
technology. These claims are therefore sufficient to satisfy Rule
9(b) and denies the Defendants' Motion to Dismiss the fraudulent
concealment and negligent misrepresentation claims based on
omissions.
D. UCL Claim
The Defendants claim that the Plaintiffs cannot show they are in
possession of their money or property to recover restitution under
the UCL. The Plaintiffs agree that they are not entitled to
restitution. However, they assert that they have alleged the
necessary ongoing injury to state a claim for injunctive relief
under the UCL because they are "still suffering ongoing harm based
on Defendants' past conduct." In reply, the Defendants allege that
this insufficiently states injury for purposes of injunctive relief
because tge Plaintiffs have not alleged that they are subject to a
real and immediate threat of future injury remediable by an
injunction.
Judge Bashant holds that the Plaintiffs can state a claim for
injunctive relief on the basis that they are experiencing ongoing
harm. However, the Complaint does not contain sufficient factual
matter to state a claim for injunctive relief on this basis. The
Complaint therefore provides insufficient factual matter from which
the Judge can infer the Plaintiffs are suffering ongoing injuries
entitling them to injunctive relief. Accordingly, she grants the
Defendants' Motion and dismisses the Plaintiffs' UCL claim, with
leave to amend, for failing to adequately allege injury that
satisfies the standing requirement for injunctive relief.
E. Attorneys' Fees
Lastly, the Defendants request dismissal of the Plaintiffs' request
for attorneys' fees because they have not cited to any legal
authority for an attorneys' fees award. The Plaintiffs oppose on
the basis that they may seek fees as a private attorney general
under California Code of Civil Procedure Section 1021.5.
Judge Bashant finds that the Defendants do not address in their
Reply whether the Plaintiffs are entitled to attorneys' fees under
this provision. As such, she denies their motion to dismiss the
Plaintiffs' request for attorneys' fees as premature.
Conclusion
Judge Bashant finds that while some of the allegedly fraudulent
statements in the Complaint are non-actionable as puffery, the
Defendants' arguments in support of dismissal of the Plaintiffs'
negligence and fraud claims largely lack merit and do not warrant
dismissal. In addition, she agrees the Plaintiffs' UCL claim
inadequately pleads standing for injunctive relief, but finds the
Defendants prematurely seek dismissal of the Plaintiffs' claim for
attorneys' fees.
Accordingly, Judge Bashant denied the Defendants' Motion to Dismiss
Plaintiffs' claims on the basis of the economic loss rule; granted
in part the Defendants' Motion to Dismiss the Plaintiffs' claims
based on affirmative representations (the fraud in the inducement
claim and part of the negligent misrepresentation claim based on
affirmative representations) as nonactionable puffery and for
failing to state a claim under Rule 9(b); denied the Defendants'
Motion to Dismiss the Plaintiffs' claims based on fraudulent
omissions (the fraudulent concealment claim and part of the
negligent misrepresentation claim based on omissions) for failing
to state a claim under Rule 9(b); granted the Defendants' Motion to
Dismiss the Plaintiffs' UCL claim for failing to satisfy the
standing requirement for injunctive relief; and denied the
Defendants' Motion to Dismiss the Plaintiffs' claim for attorneys'
fees as premature.
If the Plaintiffs elect to amend their deficient claims, their
deadline to file an amended complaint was June 15, 2021. If they
do not file an amended complaint or request an extension to do so
by this deadline, the Defendants are required to file an answer by
June 29, 2021.
A full-text copy of the Court's June 1, 2021 Order is available at
https://tinyurl.com/8tatbpae from Leagle.com.
NESTLE USA: Saldivar Sues Over Mislabeled Coffee-Mate Products
--------------------------------------------------------------
ELAINE SALDIVAR, individually and on behalf of all others similarly
situated, Plaintiff v. NESTLE USA, INC., Case No. 4:21-cv-04162-DMR
(N.D. Cal., June 2, 2021) alleges that the Defendant mislabeled its
dairy coffee creamer under its Coffee-mate, Natural Bliss brand,
purporting to be "natural" and flavored mostly or exclusively by
natural vanilla ("Product").
The Plaintiff alleges in the complaint that despite the promises
that the Product contains natural vanilla and natural flavor, the
Product contains no appreciable or detectable amount of natural
vanilla, and is flavored almost exclusively by artificial flavor.
By placing the term "Natural Flavor" directly below "Vanilla,"
consumers will expect most, or all the flavoring to be from the
natural flavor of vanilla. The Defendant's representations cause
consumers to not expect added flavoring that purportedly provides a
vanilla taste to be from non-vanilla sources. Although the
flavoring used to simulate the Product’s characterizing vanilla
flavor is (1) not from vanilla beans, (2) from an artificial
petrochemical source and (3) made through an artificial process,
Defendant pretends otherwise, conflating the natural and artificial
flavoring and deceiving consumers, the suit says.
Defendant also fails to disclose the addition of synthetic
flavoring ingredients. Defendant knows consumers will pay more for
the Product because it contains pictures of vanilla, the
representations and omits that it is artificially flavored, added
the suit.
Nestle USA, Inc. produces and distributes nutritious food and
beverage products. The Company offers bakery, chocolates,
confectionery, snacks, coffee, fruit and vegetable juices, ice
creams, and frozen food products. [BN]
The Plaintiff is represented by:
Scott C. Borison, Esq.
BORISON FIRM, LLC
1900 S Norfolk St Ste 350
San Mateo CA 94403
Telephone: (301) 620-1016
Facsimile: (301) 620-1018
E-mail: scott@borisonfirm.com
OCWEN LOAN: July 9 Extension of Class Certification Hearing Sought
------------------------------------------------------------------
In the class action lawsuit captioned as GREGORY FRANKLIN,
individually and on behalf of all others similar situated, v. OCWEN
LOAN SERVICING, LLC, Case No. 3:18-cv-03333-SI (N.D. Cal.), the
Parties stipulated that the hearing on Plaintiff's motion for class
certification shall be continued to July 9, 2021.
Ocwen provides mortgage loans. The Company offers consumer home,
reverse mortgage, and investment property loans.
A copy of the Parties motion dated June 9, 2021 is available from
PacerMonitor.com at https://bit.ly/3iOJh2X at no extra charge.[CC]
The Plaintiff is represented by:
Ryan Lee McBride, Esq.
KAZEROUNI LAW GROUP
2633 E. Indian School Road, Ste. 460
Phoenix, AZ 85016
Telephone: (602) 900-1288
Facsimile: (800) 520-5523
E-mail: ryan@kazlg.com
- and -
Abbas Kazerounian, Esq.
Seyed Abbas Kazerounian, Esq.
245 Fischer Avenue, Unit D1
Costa Mesa, CA 92626
Telephone: (800) 400-6808
Facsimile: (800) 520-5523
E-mail: ak@kazlg.com
The Defendant is represented by:
Sara Louise Markert, Esq.
BRYAN CAVE LEIGHTON PAISNER
1920 Main Street, Ste. 1000
Irvine, CA 92614-7276
Telephone: (949) 223-7245
Facsimile: (949) 437-8845
E-mail: sara.markert@bclplaw.com
- and -
Brian V. Otero, Esq.
Stephen R. Blacklocks, Esq.
Ryan A. Becker, Esq.
HUNTON ANDREWS KURTH LLP
200 Park Avenue
New York, NY 10166-0005
Telephone: (212) 309-1000
Facsimile: (212) 309-1100
E-mail: botero@HuntonAK.com
sblacklocks@HuntonAK.com
rbecker@HuntonAK.com
OREGON: Court Denies Bid to Remand Moore v. ODOC Class Suit
-----------------------------------------------------------
In the case, PAUL MICHAEL MOORE, et al., Plaintiffs v. OREGON
DEPARTMENT OF CORRECTIONS, Defendant, Case No. 3:21-cv-00599-SB (D.
Or.), Judge Michael W. Mosman of the U.S. District Court for the
District of Oregon denies the Plaintiffs' motion to remand, motion
to expand the putative class action, and motions for a preliminary
injunction.
Mr. Moore, a self-represented litigant in the custody of the Oregon
Department of Corrections ("ODOC"), filed the civil rights action
on behalf of himself and three other adults in custody. Moore is
currently housed at Snake River Correctional Institution.
On Feb. 2, 2021, Moore filed the action in the Multnomah County
Circuit Court, alleging that ODOC knowingly exposed the Plaintiffs
to COVID-19 and that ODOC's failure adequately to respond to
COVID-19 violates the Plaintiffs' Eighth Amendment rights. The
following day, co-plaintiffs Stuart Hamilton, Emmanuel Olmos-Cruz,
and Juan Manuel Perez, each filed separate motions for a
preliminary injunction, alleging that ODOC officials threatened and
harassed them, and requesting transfer to a different ODOC
facility.
On April 21, 2021, ODOC removed the case to federal court pursuant
to 28 U.S.C. Section 1331 (federal question jurisdiction). On
April 30, 2021, Moore filed a motion to remand this action to state
court, and on May 13, 2021, Moore filed a motion to expand the
putative class action to add four additional AICs as
co-plaintiffs.
Discussion
I. Motion to Remand
ODOC removed the case to federal court on federal question grounds
under 28 U.S.C. Section 1331. Section 1331 provides district
courts with "original jurisdiction of all civil actions arising
under the Constitution, laws, or treaties of the United States."
Under 28 Section U.S.C. Section 1367, district courts "have
supplemental jurisdiction over all other claims that are so related
to claims in the action within such original jurisdiction that they
form part of the same case or controversy."
Judge Mosman opines that the the requirements for both federal
question jurisdiction and supplemental jurisdiction are met.
First, Section U.S.C. 1331. Second, the Court may exercise
supplemental jurisdiction over the Plaintiffs' negligence claim
against ODOC, as it involves the same set of facts and events as
the Plaintiffs' Eighth Amendment claim. In addition, ODOC has
complied with the procedural steps for effecting removal of the
action by filing a notice of removal in federal court, filing a
copy of the notice in state court, and serving the Plaintiffs with
a copy of the Notice of Filing. Accordingly, the Plaintiffs' motion
to remand is denied.
II. Motion to Expand Class Action
Mr. Moore filed a motion to add four additional AICs to the
putative class action. However, a self-represented plaintiff may
not represent other plaintiffs in litigation. Accordingly, judge
Mosman denies Moore's motion to expand the putative class action to
include additional AICs.
III. Preliminary Injunction Motions
Before ODOC removed the case to federal court, co-plaintiffs
Hamilton, Olmos-Cruz, and Perez each separately filed a motion for
a preliminary injunction in state court, alleging that ODOC
officials targeted, harassed, and intimidated them by subjecting
them to unwarranted disciplinary action. As relief, the
co-plaintiffs request transfer to a different ODOC institution.
Judge Mosman concludes that preliminary injunctive relief is not
warranted because the co-plaintiffs have not met their burden of
demonstrating that they will suffer irreparable harm in the absence
of immediate injunctive relief. As noted, the co-plaintiffs allege
that ODOC officials "knowingly target, harass, and even manipulate
Plaintiffs," but they do not offer specific, concrete allegations
that support a finding of irreparable future harm. Accordingly,
the Judge denies the motions for a preliminary injunction.
Conclusion
For the reasons he stated, Judge Mosman denies the Plaintiffs'
motion to remand, the Plaintiffs' motion to add parties to the
putative class action, and the Plaintiffs' motions for a
preliminary injunction.
A full-text copy of the Court's June 1, 2021 Opinion & Order is
available at https://tinyurl.com/m85m9hc6 from Leagle.com.
OVERLAND SOLUTIONS: Parducci Seeks to Certify Class & Subclass
--------------------------------------------------------------
In the class action lawsuit captioned as Richard P. Parducci, as
conservator for and on behalf of Margarett Parducci and as Trustee
of the JOHN A. PARDUCCI AND MARGARETT L. PARDUCCI SURVIVOR'S TRUST
dated December 28, 1987, v. Overland Solutions, Inc., AMCO
Insurance Company and Does 1-20, Case No. 3:18-cv-07162-WHO (N.D.
Cal.), the Plaintiff will move the Court on September 15, 2021,
to enter an order:
1. certifying a Class and subclass;
2. appointing him as Class Representative; and
3. appointing the law firms of Insurance Litigators &
Counselors, PLC, Law Offices of Lawrence G. Papale, and
Methvin, Terrell, Yancey, Stephens & Miller, P.C. as Class
Counsel.
The Plaintiff seeks certification of a California Class of insureds
based upon his allegations that AMCO's inflation of the replacement
cost value of its insureds' homes violates California's Unfair
Competition Law and Elder Abuse Law, constitutes an intentional and
negligent misrepresentation and breaches the duty of good faith
and fair dealing.
As a result of AMCO's practices, Plaintiff seeks certification of
the following Class:
"All owners of a homeowners insurance policy issued by AMCO
Insurance Company that insured a dwelling in California on a
replacement cost basis utilizing AMCO or its agent's survey,
appraisal or inspection methodology to calculate the dwelling
coverage limits and whose "Change in Coverage" following the
survey, appraisal, or inspection was less than zero."
The Plaintiff also seeks to represent a subclass:
"All owners 65 years of age or older of a homeowners insurance
policy issued by AMCO Insurance Company that insured a dwelling
in California on a replacement cost basis utilizing AMCO or its
agent's survey, appraisal or inspection methodology to calculate
the dwelling coverage limits, whose "Change in Coverage"
following the survey, appraisal, or inspection was less than
zero, and whose Coverage A Dwelling amount was not lowered as a
result."
Richard Parducci began handling insurance matters for his
grandparents around 2008, first power of attorney, and later, as
trustee. In 2018, he was appointed conservator for his grandmother.
Around 2015, he hired an attorney to review his grandparents'
insurance policies and first learned that their home’s
replacement cost value was inflated, causing the trust to pay
excessive premiums to AMCO.
Overland Solutions provides insurance underwriting support
services. AMCO provides auto, home, motorcycle insurance services.
A copy of the Plaintiff's motion to certify class dated June 9,
2021 is available from PacerMonitor.com at https://bit.ly/3xdUbTG
at no extra charge.[CC]
The Plaintiff is represented by:
Attila Panczel, Esq.
Joseph John Turri, Esq
INSURANCE LITIGATORS & COUNSELORS, PLC.
419-J Talmage Road
Ukiah, CA 95482
Telephone: (707) 462-6117
Facsimile: (707) 230-5525
E-mail: insterminator@aol.com
- and -
Lawrence G. Papale, Esq.
LAW OFFICES OF LAWRENCE G. PAPALE
1308 Main Street, Suite 117
Saint Helena, CA 94574
Telephone: (707) 963-1704
E-mail: lgpapale@papalelaw.com
- and -
Robert G. Methvin, Jr., Esq.
Courtney C. Gipson, Esq.
METHVIN, TERRELL,
YANCEY, STEPHENS & MILLER, P.C.
2201 Arlington Avenue South
Birmingham, AL 35205
Telephone: (205) 939-0199
Facsimile: (205) 939-0399
E-mail: rgm@mtattorneys.com
cgipson@mtattorneys.com
PACIFIC GAS: Wong Sues Over Improper Business Practices
-------------------------------------------------------
REGAL WONG; JULIO FONG; OSCAR MIRANDA ORTIZ; ROBERTO SANTOS
VILLEGAS; ROGELIO FLORES; JOSE LUIS GALEAS; JORGE GARCIA; JOSE
ABRAHAM LORENZO; MYNOR BOTEO; JOSE PRECIADO; ISMAEL ESCOTO; and
CESAR HERNANDEZ JIMENEZ, individually and on behalf of all others
similarly situated, Plaintiffs v. RICHARD COLE; MURRAY COLE; EVANS
DAVIDSON LLC; PACIFIC GAS AND ELECTRIC COMPANY; and DOES 1 THROUGH
100, Defendants, Case No. CGC-21-591962 (Cal. Super., San Francisco
Cty., June 2, 2021) alleges that the Defendants improperly imposed
to the Plaintiffs water and electricity charges.
According to the complaint, the Plaintiffs operate auto repair and
iron work related business in the property of the Defendants Cole
known as "Little Tijuana" located the County of San Francisco. The
Plaintiff rented the property and executed a contract where the
Plaintiffs paid the Defendants the rent, electrical and water
utility services.
However, the Defendants' billing practices for electricity and
water allegedly fail to comply with established statutory norms.
There is a single meter for water and single meter for electricity.
The single meter is utilized by various unrelated properties
according to placement of master meters and water meters utilized
by adjacent properties controlled by the Defendants. The physical
inspections of the single meters would clearly indicate that the
usage of electricity and water residential as well as commercial.
Pacific Gas and Electric Company, doing business as PG&E, provides
utility services. The Company generates, transmits, and distributes
electricity and natural gas to residential and commercial users.
[BN]
The Plaintiffs are represented by:
Julio J. Ramos, Esq.
LAW OFFICES OF JULIO J. RAMOS
35 Grove Street, Suite 107
San Francisco, CA 94102
Telephone: (415) 948-3015
Facsimile: (415) 469-9787
PACIFIC MERCANTILE: SEC Filings Mislead Stockholders, Parshall Says
-------------------------------------------------------------------
PAUL PARSHALL, individually and on behalf of all others similarly
situated, Plaintiff v. PACIFIC MERCANTILE BANCORP, JAMES F.
DEUTSCH, BRAD R. DINSMORE, MANISH DUTTA, SHANNON F. EUSEY, MICHAEL
P. HOOPIS, DENIS P. KALSCHEUR, MICHELE S. MIYAKAWA, DAVID J. MUNIO,
STEPHEN P. YOST, and ANNE MCCALLION, Defendants, Case No.
8:21-cv-01015 (C.D. Cal., June 8, 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 Pacific Mercantile
Bancorp's (PMB) stockholders to vote in favor of the proposed
acquisition of the company by Banc of California. The proxy
statement omits or misrepresents material information concerning,
among other things: (i) PMB's and Banc of California's financial
projections and the data and inputs underlying the financial
valuation analyses that support the fairness opinion provided by
PMB's financial advisor Keefe, Bruyette & Woods, Inc. (KBW); and
(ii) potential conflicts of interest of KBW. PMB's public
stockholders, including the Plaintiff, will be irreparably harmed
because the proxy statement's material misrepresentations and
omissions prevent them from making a sufficiently informed voting
decision on the proposed transaction, the suit says.
Pacific Mercantile Bancorp is a bank holding company based in Costa
Mesa, California. [BN]
The Plaintiff is represented by:
Joel E. Elkins, Esq.
WEISSLAW LLP
9100 Wilshire Blvd. #725 E.
Beverly Hills, CA 90210
Telephone: (310) 208-2800
Facsimile: (310) 209-2348
- and –
Richard A. Acocelli, Esq.
WEISSLAW LLP
1500 Broadway, 16th Floor
New York, NY 10036
Telephone: (212) 682-3025
Facsimile: (212) 682-3010
- and –
Brian D. Long, Esq.
LONG LAW, LLC
3828 Kennett Pike, Suite 208
Wilmington, DE 19801
Telephone: (302) 729-9100
PELOTON INTERACTIVE: Schall Law Firm Reminds of June 28 Deadline
----------------------------------------------------------------
The Schall Law Firm, a national shareholder rights litigation firm,
reminds investors of a class action lawsuit against Peloton
Interactive, Inc. ("Peloton" or "the Company") (NASDAQ: PTON) for
violations of Secs. 10(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 September
11, 2020 and April 16, 2021, inclusive (the "Class Period"), are
encouraged to contact the firm before June 28, 2021.
We also encourage you to contact Brian Schall of the Schall Law
Firm, 2049 Century Park East, Suite 2460, Los Angeles, CA 90067, at
310-301-3335, to discuss your rights free of charge. You can also
reach us through the firm's website at www.schallfirm.com, or by
email at brian@schallfirm.com.
The class, in this case, has not yet been certified, and until
certification occurs, you are not represented by an attorney. If
you choose to take no action, you can remain an absent class
member.
According to the Complaint, the Company made false and misleading
statements to the market. Peloton's Tread+ product was a serious
safety risk to small children and pets, resulting in multiple
incidents of injury to both including the tragic death of one
child. The Company knew about the safety risk but did not treat
safety as a priority, failing to recall or suggest a usage halt of
the Tread+. The U.S. Consumer Product Safety Commission ("CPSC")
announced that the Tread+ represented a serious risk to public
safety and urged consumers with small children to stop using the
product. The CPSC also found that the Tread+ represented a safety
risk to consumers that lost their balance. 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 Peloton, investors suffered damages.
Join the case to recover your losses.
The Schall Law Firm represents investors around the world and
specializes in securities class action lawsuits and shareholder
rights litigation.
This press release may be considered Attorney Advertising in some
jurisdictions under the applicable law and rules of ethics.
CONTACT:
The Schall Law Firm
Brian Schall, Esq.,
www.schallfirm.com
Office: 310-301-3335
info@schallfirm.com [GN]
PINTEREST INC: Pomerantz Law Reminds of June 28 Deadline
--------------------------------------------------------
Pomerantz LLP on June 7 disclosed that a class action lawsuit has
been filed against Pinterest, Inc. ("Pinterest" or the "Company")
(NYSE: PINS) and certain of its officers. The class action, filed
in the United States District Court for the Northern District of
California, and docketed under 21-cv-04220, is on behalf of a class
consisting of all persons and entities other than Defendants that
purchased or otherwise acquired Pinterest securities between
February 4, 2021 and April 27, 2021, inclusive (the "Class
Period"). Plaintiff pursues claims against the Defendants under the
Securities Exchange Act of 1934 (the "Exchange Act").
If you are a shareholder who purchased Pinterest securities during
the Class Period, you have until June 28, 2021 to ask the Court to
appoint you as Lead Plaintiff for the class. A copy of the
Complaint can be obtained at www.pomerantzlaw.com. To discuss this
action, contact Robert S. Willoughby at newaction@pomlaw.com or
888.476.6529 (or 888.4-POMLAW), toll-free, Ext. 7980. Those who
inquire by e-mail are encouraged to include their mailing address,
telephone number, and the number of shares purchased.
Pinterest operates a platform that purports to provide inspiration
for its users' lives. Monthly active users are the number of
Pinterest users who interact with Pinterest at least once during
the 30-day period ending on the date of measurement.
The complaint alleges that, throughout the Class Period, Defendants
made materially false and misleading statements regarding the
Company's business, operations, and compliance policies.
Specifically, Defendants made false and/or misleading statements
and/or failed to disclose that: (i) user growth was already
slowing; (ii) as a result, the Company expected user engagement to
slow in the second quarter of 2021; and (iii) 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.
On April 27, 2021, after the market closed, Pinterest announced its
first quarter 2021 financial results and reported that global
monthly active users grew only 30% year-over-year to 478 million, a
decline from the prior quarter's 37% year-over-year growth. During
a conference call held the same day, Pinterest's Chief Executive
Officer stated that "[a]s pandemic lockdowns were eased in some
parts of the world during mid-March, we began to see signs of less
engagement and user growth on Pinterest."
On this news, the Company's share price fell $11.25 per share, or
14.5%, to close at $66.33 per share on April 28, 2021, on unusually
heavy trading volume.
The Pomerantz Firm, with offices in New York, Chicago, Los Angeles,
and Paris is acknowledged as one of the premier firms in the areas
of corporate, securities, and antitrust class litigation. Founded
by the late Abraham L. Pomerantz, known as the dean of the class
action bar, the Pomerantz Firm pioneered the field of securities
class actions. Today, more than 80 years later, the Pomerantz Firm
continues in the tradition he established, fighting for the rights
of the victims of securities fraud, breaches of fiduciary duty, and
corporate misconduct. The Firm has recovered numerous
multimillion-dollar damages awards on behalf of class members. See
www.pomerantzlaw.com
CONTACT:
Robert S. Willoughby
Pomerantz LLP
rswilloughby@pomlaw.com
888-476-6529 ext. 7980
www.pomerantzlaw.com [GN]
PROVENTION BIO: Robbins Geller Reminds of July 20 Deadline
----------------------------------------------------------
Robbins Geller Rudman & Dowd LLP on June 7 disclosed that
purchasers of Provention Bio, Inc. (NASDAQ:PRVB) securities between
November 2, 2020 and April 8, 2021, inclusive (the "Class Period")
have until July 20, 2021 to seek appointment as lead plaintiff in
the Provention Bio class action lawsuit, Paxton v. Provention Bio,
Inc., No. 21-cv-11613 (D.N.J.), which is assigned to Judge Michael
A. Shipp.
The Private Securities Litigation Reform Act of 1995 permits any
investor who purchased Provention Bio securities during the Class
Period to seek appointment as lead plaintiff in the Provention Bio
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 Provention Bio class action lawsuit. The lead
plaintiff can select a law firm of its choice to litigate the
Provention Bio class action lawsuit. An investor's ability to share
in any potential future recovery of the Provention Bio class action
lawsuit is not dependent upon serving as lead plaintiff. If you
wish to serve as lead plaintiff of the Provention Bio class action
lawsuit or have questions concerning your rights regarding the
Provention Bio 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 Provention Bio
class action lawsuit must be filed with the court no later than
July 20, 2021.
Provention Bio is a clinical stage biopharmaceutical company.
Provention Bio's product candidates include, among others, PRV-031
teplizumab and monoclonal antibodies, in Phase III clinical trial
for the interception of type one diabetes ("T1D"). In November
2020, Provention Bio completed the rolling submission of a
Biologics License Application ("BLA") to the U.S. Food and Drug
Administration ("FDA") for teplizumab for the delay or prevention
of clinical T1D in at-risk individuals (the "teplizumab BLA").
The Provention Bio class action lawsuit alleges that, throughout
the Class Period, defendants made false and misleading statements
and failed to disclose that: (i) Provention Bio's teplizumab BLA
was deficient in its submitted form and would require additional
data to secure FDA approval; (ii) accordingly, Provention Bio's
teplizumab BLA lacked the evidentiary support Provention Bio had
led investors to believe it possessed; (iii) Provention Bio had
thus overstated the teplizumab BLA's approval prospects and hence
the commercialization timeline for teplizumab; and (iv) as a
result, Provention Bio's public statements were materially false
and misleading at all relevant times.
On April 8, 2021, Provention Bio issued a press release
"announc[ing] that the Company received a notification on April 2,
2021 from the [FDA], stating that, as part of its ongoing review of
the Company's [BLA] for teplizumab for the delay or prevention of
clinical [T1D], the FDA has identified deficiencies that preclude
discussion of labeling and post-marketing requirements/commitments
at this time." On this news, Provention Bio's stock price fell
nearly 18%, 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]
PURECYCLE TECH: Schall Law Firm Reminds of July 12 Deadline
-----------------------------------------------------------
The Schall Law Firm, a national shareholder rights litigation firm,
reminds investors of a class action lawsuit against PureCycle
Technologies, Inc. for violations of the federal securities laws.
Investors who purchased the Company's securities between November
16, 2020 and May 5, 2021, inclusive (the "Class Period"), are
encouraged to contact the firm before July 12, 2021.
We also encourage you to contact Brian Schall of the Schall Law
Firm, 2049 Century Park East, Suite 2460, Los Angeles, CA 90067, at
310-301-3335, to discuss your rights free of charge. You can also
reach us through the firm's website at www.schallfirm.com, or by
email at brian@schallfirm.com.
The class, in this case, has not yet been certified, and until
certification occurs, you are not represented by an attorney. If
you choose to take no action, you can remain an absent class
member.
According to the Complaint, the Company made false and misleading
statements to the market. PureCycle's management team had
previously taken six companies public, each of which imploded
shortly thereafter. The Company's motivation in going public was to
secure tens of millions of dollars and tradeable shares whether the
deal was favorable or unfavorable. The Company faced intense
competition for feedstock which it misled investors about. The
Company's patent did not hold the value it led investors to
believe. The Company's pressurized process was not yet functional
at production scale, and remained dangerous. Based on these facts,
the Company's public statements were false and materially
misleading throughout the IPO period. When the market learned the
truth about PureCycle, investors suffered damages.
CONTACT:
The Schall Law Firm
Brian Schall, Esq.,
www.schallfirm.com
Office: 310-301-3335
info@schallfirm.com
URL: http://www.schallfirm.com[GN]
PURELY ELIZABETH: Faces Consumer Class Action in California
-----------------------------------------------------------
Keller and Heckman LLP, in an article for The National Law Review,
reports that a class-action lawsuit brought on behalf of a proposed
group of California consumers alleges that Purely Elizabeth, LLC's
products, including granola, oats, and waffle and pancake mixes,
are misbranded and deceive consumers by making false claims related
to their protein content.
Specifically, Plaintiffs allege that the products contain up to 25%
less protein than declared. Some of the products' statements of
identity advertise them as protein products, i.e., "Grain-Free
Protein + Collagen Pancake & Waffle Mix," and all include a
statement on the principal display panel declaring the protein
content. Plaintiffs also allege that the protein content
declaration constitutes a protein claim which would require that
the percent daily value (%DV) of protein that the product provides
be declared. (See 21 C.F.R. Sec. 101.9(c)(7); California has
adopted all of federal food labeling regulations). Furthermore, the
protein content used to compute the %DV must be corrected for by
PDCAAS score, a measure of protein digestibility. The products
allegedly do not declare the %DV of protein and contain proteins
with low PDCAAS scores (i.e., less digestible proteins) such as
collagen and amaranth that would further reduce the %DV of protein
that they provide.
This is the second class-action lawsuit related to protein content
that has been filed recently. Food companies should remember that a
protein claim triggers a mandatory protein %DV declaration which
must take into account the PDCAAS score of the protein source(s).
[GN]
REV GROUP: Settlements in 2017 IPO Related Suits Awaits Initial OK
------------------------------------------------------------------
REV Group, Inc. said in its Form 10-Q Report filed with the
Securities and Exchange Commission on June 7, 2021, for the
quarterly period ended April 30, 2021, that settlement in the
consolidated federal and state putative securities class suits
related to the January 2017 initial public offering (IPO), awaits
preliminary approval.
A consolidated federal putative securities class action and a
consolidated state putative securities class action are pending
against the Company and certain of its officers and directors.
These actions collectively purport to assert claims on behalf of
putative classes of purchasers of the Company's common stock in or
traceable to its January 2017 IPO, purchasers in its secondary
offering of common stock in October 2017, and purchasers from
October 10, 2017 through June 7, 2018.
The state action also names certain of the underwriters for the
Company's IPO or secondary offering as defendants.
The federal and state courts each consolidated multiple separate
actions pending before them, the first of which was filed on June
8, 2018.
The actions have alleged certain violations of the Securities Act
of 1933 and, for the federal action, the Securities Exchange Act of
1934. The consolidated state action is currently stayed in favor of
the consolidated federal action.
On May 19, 2021, the parties to the consolidated federal and state
putative securities class actions executed a stipulation of
settlement for a class settlement with the court and moved for
preliminary approval. The settlement payment is expected to be
fully covered by the Company's insurers.
The payable under the proposed settlement and the related insurance
proceeds are recorded in other current liabilities and other
current assets, respectively, in the Company's Condensed Unaudited
Consolidated Balance Sheets as of April 30, 2021.
REV Group, Inc. designs, manufactures, and distributes specialty
vehicles in the United States, Canada, Europe, Africa, the Middle
East, Latin America, the Caribbean, and internationally. It
operates through three segments: Fire & Emergency, Commercial, and
Recreation. REV Group, Inc. was formerly known as Allied Specialty
Vehicles, Inc. and changed its name to REV Group, Inc. in November
2015. The company is headquartered in Milwaukee, Wisconsin.
ROMEO'S PIZZA: August 11 Extension to File Class Cert. Bid Sought
-----------------------------------------------------------------
In the class action lawsuit captioned as Matthew Branning, On
behalf of himself and those similarly situated, v. Romeo's Pizza,
Inc., et al., Case No. 1:19-cv-02092-SO (N.D. Ohio), Plaintiff
Bradley Dietrich moves the Court to extend the deadline to file a
Rule Motion for Class Certification to August 11, 2021.
The Plaintiff says that he requires additional time for discovery
surrounding the issues relevant to Rule 23 class certification
pertaining to the remaining defendants. The requested extension
will enable him to more fully present his position regarding class
certification, and is not sought for purposes of undue delay or
prejudice. The current deadline is June 11, 2021.
A copy of the Plaintiff's motion dated June 9, 2021 is available
from PacerMonitor.com at https://bit.ly/3gwTCxq at no extra
charge.[CC]
Counsel for Plaintiff and the putative class, are:
Nathan Spencer, Esq.
Andrew R. Biller, Esq.
Andrew P. Kimble, Esq.
Philip J. Krzeski, Esq.
BILLER & KIMBLE, LLC
www.billerkimble.com
8044 Montgomery Rd., Ste. 515
Cincinnati, OH 45236
Telephone: (513) 202-0710
Facsimile: (614) 340-4620
E-mail: abiller@billerkimble.com
akimble@billerkimble.com
pkrzeski@billerkimble.com
nspencer@billerkimble.com
SAN DIEGO, CA: Montoya et al., Lose Class Certification Bid
-----------------------------------------------------------
In the class action lawsuit captioned as ALEX MONTOYA; REX SHIRLEY;
PHILIP PRESSEL; and WYLENE HINKLE; individually, and on behalf of
all others similarly situated, v. CITY OF SAN DIEGO, a public
entity; and DOES 1-100, Case No. 3:19-cv-00054-JM-BGS (S.D. Cal.),
the Hon. Judge Jeffrey T. Miller entered an order denying the
motion for class certification because the Plaintiffs fail to
sufficiently identify an ascertainable and adequately defined
class.
Accordingly, the Plaintiffs' may file a renewed motion for class
certification, with a more defined class, within 30 days of entry
of this order, says Judge Miller.
On January 9, 2019, Plaintiffs, who are individuals with
disabilities, filed a putative class action complaint asserting
claims for violations of the Americans with Disabilities Act, the
Rehabilitation Act, and the Unruh Act.
In the operative Second Amended Complaint it is alleged that the
Plaintiffs have found their access to San Diego's sidewalks
diminished by the proliferation of dockless electric vehicles
currently in use in the City.
They allege that people using the dockless electric vehicles either
travel on the sidewalks or block paths of travel because the
vehicles are discarded in the middle of sidewalks or at other
rights-of-way, making it difficult for people with disabilities to
safely traverse the pathways.
A copy of the Court's order dated June 9, 2021 is available from
PacerMonitor.com at https://bit.ly/3zk5GL3 at no extra charge.[CC]
SCHNEIDER NATIONAL: Naler Labor Suit Removed to C.D. California
---------------------------------------------------------------
The case styled WILLIAM NALER, on behalf of himself and all others
similarly situated v. SCHNEIDER NATIONAL CARRIERS, INC., and DOES
1-50, inclusive, Case No. 30-2020-01164104-CU-OE-CXC, was removed
from the Superior Court of the State of California in and for the
County of Orange to the U.S. District Court for the Central
District of California on June 9, 2021.
The Clerk of Court for the Central District of California assigned
Case No. 8:21-cv-01019 to the proceeding.
The case arises from the Defendant's alleged violations of the
California Labor Code by failing to provide accurate itemized wage
statements.
Schneider National Carriers, Inc. is a provider of transportation &
logistics services, headquartered in Green Bay, Wisconsin. [BN]
The Defendant is represented by:
Matthew C. Kane, Esq.
Sabrina A. Beldner, Esq.
Amy E. Beverlin, Esq.
Kerri H. Sakaue, Esq.
MCGUIREWOODS LLP
1800 Century Park East, 8th Floor
Los Angeles, CA 90067-1501
Telephone: (310) 315-8200
Facsimile: (310) 315-8210
E-mail: mkane@mcguirewoods.com
sbeldner@mcguirewoods.com
abeverlin@mcguirewoods.com
ksakaue@mcguirewoods.com
SCHUYLKILL COUNTY, PA: Faces Class Action Over Prothonotary Fees
----------------------------------------------------------------
Amy Marchiano, writing for tnonline.com, reports that Schuylkill
County Commissioners approved retaining the law firm McNees Wallace
& Nurick, which has offices in Harrisburg and other locations, to
represent them in a class-action lawsuit filed against the county
and Prothonotary Bridget Miller and many prothonotaries statewide.
County solicitor Chris Hobbs said the lawsuit, Chester Upland SD et
al. vs. Rossi et al., challenges certain fees the prothonotaries
charge.
Hobbs said he "believes fees that have been charged in Schuylkill
County are legitimate."
The legal fees will be paid by the County Commissioners Association
of Pennsylvania and divided by the counties that opt for the firm
to defend them.
Hobbs said Glenn Roth, first assistant solicitor, was more well
versed on the matter. However, Roth was not available for comment.
[GN]
SEALED AIR: New York Court Narrows Claims in Funds Securities Suit
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In the case, UA LOCAL 13 PENSION FUND, UA LOCAL 13 & EMPLOYERS
GROUP INSURANCE FUND, and PLUMBERS & STEAMFITTERS LOCAL 267 PENSION
FUND, individually and on behalf of all others similarly situated,
Plaintiffs v. SEALED AIR CORPORATION and WILLIAM G. STIEHL,
Defendants, Case No. 19 Civ. 10161 (LLS) (S.D.N.Y.), Judge Louis L.
Stanton of the U.S. District Court for the Southern District of New
York granted in part and denied in part the Defendants' motions to
dismiss the Lead Plaintiffs' Corrected Amended Complaint.
The case is a putative securities class action. The Corrected
Amended Complaint ("CAC") asserts two claims: one against both
Sealed Air and Stiehl for violations of Section 10(b) of the
Exchange Act and Rule 10b-5, and one against Stiehl for violation
of Section 20(a) of the Exchange Act (control person liability).
The Plaintiffs contend that Stiehl and Sealed Air made numerous
statements that were rendered false or misleading by Stiehl's
alleged interference in the company's auditor selection process, by
which Stiehl ensured that Ernst & Young ("EY") was selected as the
company's auditor. The Plaintiffs call that alleged interference
the "bid-rigging scheme."
The CAC alleges that the statements about Sealed Air's retention of
EY, made in Sealed Air's November 2014 Form 8-K and 2015 Proxy
Statement, were false and misleading because the selection process
was actually neither competitive nor comprehensive and did not
actually involve several accounting firms.
The CAC then alleges that the bid-rigging scheme renders false or
misleading statements defendants made about three different sets of
Sealed Air's corporate procedures in the company's SEC filings.
First, Sealed Air's Form 10-K filings for 2014 through 2017 and
Form 10-Q filings for the first quarter of 2015 through the second
quarter of 2018, each signed by Stiehl, stated that the company
designed and maintained disclosure controls and procedures that
satisfied SEC requirements and that the Chief Executive Officer and
Chief Financial Officer ("CFO") concluded they were effective at
the "reasonable assurance" level. Second, the company's 2014
through 2011 Form 10-K filings incorporated its Codes of Conduct
and Ethics. The CAC alleges that Stiehl's involvement in the
bid-rigging scheme showed excerpts from those Codes to be false or
misleading. Third, in the Sarbanes-Oxley certifications to Sealed
Air's third quarter 2017 through second quarter 2018 Form 10-Q
filings and 2017 Form 10-K filing, Stiehl attested to four
statements that the CAC alleges were made false or misleading by
his participation in the bid-rigging scheme.
Finally, the CAC alleges that Sealed Air's disclosures in its SEC
filings necessary to comply with SEC Regulation S-K Items 303 (17
C.F.R. Section 229.303) and 105 (id. Section 229.105, formerly Item
503 at id. Section 229.503) were false and misleading because they
omitted information about the bid-rigging scheme.
Discussion
The Defendants move to dismiss the Lead Plaintiffs' CAC under
Federal Rules of Civil Procedure 9(b) and 12(b)(6) and the Private
Securities Litigation Reform Act ("PSLRA"), 15 U.S.C. Section
78u-4. They argue that the CAC alleges neither the falsehoods or
misleading statements in question, nor their authors' states of
mind, with sufficient particularity to satisfy Fed. R. Civ. P. 9(b)
and the PSLRA, 15 U.S.C. Section 78u-4(b)(1)-(2).
A. EY Retention Statements
The Defendants first contend that the CAC does not describe with
enough detail the bid-rigging scheme that the Plaintiffs allege
rendered fraudulent Sealed Air's repeated statement that it chose
Ernst & Young to be "the Company's independent registered public
accounting firm for the fiscal year ending Dec. 31, 2015" by "a
competitive search process" that "involved several international
registered public accounting firms."
Judge Stanton opines that the CAC sufficiently alleges the
bid-rigging scheme, and that Sealed Air's statements that it
retained EY after a competitive search involving several accounting
firms were false or misleading. The existence of the bid-rigging
scheme is inferred not only from the criminal and SEC
investigations, but also from their apparent direct connection with
Sealed Air's firing of Stiehl and EY.
B. Corporate Procedures
The Defendants argue that the Plaintiffs also do not adequately
explain why the company's statements about its policies and
procedures were rendered false by omission.
a. The Statements About Disclosure Controls and Procedures
The Defendants argue that the Plaintiffs do not sufficiently allege
that the controls and procedures were inadequately designed,
insufficient or not followed, nor the actions which should have
been taken to avoid violation of the controls.
Judge Stanton holds that the Plaintiffs' allegation that the
disclosure controls and procedures were not designed to ensure that
employees accurately communicated required information but rather
permitted the Company to file reports pursuant to the Exchange Act
with the SEC that misstated and/or omitted material facts required
to be disclosed by SEC rules and regulations is sufficient at the
pleading stage. It does not identify the deficient language. But
that is a matter of evidence, which does not have to be pleaded,
and the CAC states the nature of the claim.
b. Codes of Conduct and Ethics
The Defendants argue that the statements in the company's Codes of
Conduct and Ethics are aspirational, inactionable puffery.
Judge Stanton finds that despite an appearance of gravity and
solemnity, these statements are similarly undefined and abstract:
"interests" are without limits, conduct must be "honest and
ethical," and federal and company regulations requiring accurate
reports must be complied with. They create no new obligations
specific enough to support a lawsuit if not observed, beyond the
requirements of present law. They are puffery.
C. Sarbanes-Oxley Certifications
The Defendants' only challenge to the Plaintiffs' allegation that
the Defendants' Sarbanes-Oxley certifications were false or
misleading is that the Plaintiffs do not sufficiently "describe
what was fraudulent" about the alleged bid-rigging scheme.
As Judge Stanton found that the Plaintiffs have alleged the
big-rigging scheme with sufficient particularity, this challenge
fails.
D. Items 303 and 105
The Plaintiffs argue that the Defendants failed to disclose in
their SEC filings material uncertainties and events they were
required to disclose by SEC Item 303, 17 C.F.R. Section 229.303,
and risk factors they were required to disclose under SEC Item 105,
id. Section 229.105, and that these omissions rendered false or
misleading the disclosures that the Defendants otherwise made in
accordance with Items 303 and 105 in their SEC filings.
The Defendants argue that the Plaintiffs do not sufficiently plead
what information was required to be disclosed.
Judge Stanton finds that the CAC alleges that the Defendants'
omission of the following information about the bid-rigging scheme
and its attendant consequences violated Items 303 and 105. That
describes, with sufficient particularity to state a 10b-5 claim
premised on a violation of Items 303 and 105, the omitted material
events and uncertainties and risk factors thatthe Plaintiffs allege
the Defendants were required to disclose.
E. Scienter and Primary Liability
The Defendants next contend that the Plaintiffs do not "state with
particularity facts giving rise to a strong inference that the
Defendant acted with the required state of mind."
a. EY Retention Statements
The Defendants argue that they did not make the EY retention
statements with the requisite state of mind because Stiehl is the
only Sealed Air employee who the Plaintiffs allege knew of the
bid-rigging scheme and he neither signed the documents in which the
statements were made nor had ultimate authority over the
statements.
Judge Stanton opines that Stiehl was Sealed Air's Chief Accounting
Officer ("CAO") and Controller when the company said in its SEC
filings that it chose EY to be its "independent registered public
accounting firm." Stiehl's position as the company's top
accountant strongly implies that he was involved in the crafting
and approval of the company's statements about its search for and
selection of an accounting firm. Accordingly, his knowledge of the
EY retention statements' falsity can plausibly be imputed to Sealed
Air at this stage of the litigation. The CAC thus states facts
creating a strong inference that Sealed Air made the EY retention
statements with a sufficiently culpable state of mind, but does not
state a 10b-5 claim against Stiehl with regard to the EY retention
statements because he did not make them.
b. Stiehl-Signed Statements
The CAC therefore also states fact which raise a strong inference
that Stiehl and Sealed Air had the requisite state of mind when
they made the remaining statements, the Judge holds. S tiehl signed
those statements on Sealed Air's behalf and they were published in
Sealed Air's various SEC filings. Stiehl and Sealed Air thus made
the remaining statements. As the alleged perpetrator of the
bid-rigging scheme, there is a strong inference that Stiehl was
aware that the scheme rendered those statements false or
misleading. He thus acted with the requisite scienter, and that
scienter may be imputed to Sealed Air.
c. Control Person Liability
Finally, Judge Stanton holds that the Plaintiffs have adequately
alleged (1) a primary violation by Sealed Air, (2) Stiehl's control
of Sealed Air, first as CAO and Controller and then as CFO,3 and
(3) Stiehl's culpable participation in the bid-rigging scheme, his
failure to rectify the EY retention statements when he knew they
were false or misleading, and his false or misleading statements.
Thus, the Plaintiffs have sufficiently pled control person
liability against Stiehl for all surviving claims.
Conclusion
Judge Stanton granted the Defendants' motions to dismiss the
complaint as to the Plaintiffs' Rule 10b-5 claim against Stiehl for
the EY retention statements and the Plaintiffs' Rule 10b-5 claims
against both defendants based on Sealed Air's Code of Conduct and
Code of Ethics.
The Judge denied the motions are as to the Plaintiffs' Rule 10b-5
claim against Sealed Air for the EY retention statements, the
Plaintiffs' Rule 10b-5 claim against both the Defendants based on
the disclosure protocol statements, the Sarbanes-Oxley
certifications, and the Item 303 and 105 disclosures, and the
Plaintiffs' Section 20(a) claim against Stiehl to the extent it is
premised on any of those statements.
A full-text copy of the Court's June 1, 2021 Opinion & Order is
available at https://tinyurl.com/r9wskt7w from Leagle.com.
SERCO INC: Settles 401(k) Plan Fee Class Action for $1.2 Million
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Lee Barney, writing for PlansSponsor, reports that Navy defense
contractor Serco Inc. has reached a $1.2 million settlement
agreement in the excessive fee lawsuit that was filed against its
401(k) plan last year.
After nearly a year of discovery and motions following private
mediation that began in November, the parties have agreed to what
the class calls "fair and reasonable terms." The settlement
includes an injunction on the plaintiffs from filing additional
lawsuits on the same grounds as the original case.
The settlement funds will be dispersed through a qualified
settlement fund, with restorative money being given to participants
in the Serco 401(k) plan and paper checks valid for 180 days to
those who have left the plan. It awaits court approval.
The settlement agreement notes that the class wants to settle. In
it, the defense denies all allegations and all liability for the
allegations and claims.
The original Employee Retirement Income Security Act (ERISA)
lawsuit was filed in the U.S. District Court for the Eastern
District of Virginia. The proposed class action complaint accused
Serco of failing to provide its 401(k) plan participants with the
most cost-effective mutual fund shares, among other issues.
According to the complaint, the unnamed issuer of the mutual funds
in the plan offered a lower-cost share class for at least 21 of the
30 funds in the lineup, and those funds consistently achieved
higher returns.
"The plan, however, inexplicably failed to select these lower
fee-charging and better-return producing share classes," the
complaint stated. "As well, the administrative fees charged to plan
participants by the recordkeeper, also unnamed, were consistently
greater than the fees of more than 90% of comparable 401(k) plans,
when fees are calculated as cost per participant or when fees are
calculated as a percent of total assets."
The complaint went on to state these "investment options and
unreasonable fees cannot be justified.
"Their presence confirms more than simply sloppy business practice;
their presence is the result of a breach of the fiduciary duties
owed by Serco Inc. to plan participants and beneficiaries," the
lawsuit continued. "Prudent fiduciaries of 401(k) plans
continuously monitor administrative fees against applicable
benchmarks and peer groups to identify unreasonable and
unjustifiable fees."
The lawsuit said that for plans with between $250 million and $500
million of assets, the mean expenses were 0.41% of assets under
management (AUM), but the plan's fees averaged 0.81%. [GN]
SILVER BOURBON: Kikuchi FLSA-LWPA Suit Dismissed Without Prejudice
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In the case, LAUREN KIKUCHI, ON BEHALF OF HERSELF AND ALL OTHER
SIMILARLY SITUATED INDIVIDUALS v. SILVER BOURBON, INC. D/B/A SCORES
GENTLEMEN'S CLUB, SECTION: "H," Civil Action No. 20-CV-2764 (E.D.
La.), Judge Jane Triche Milazzo of the U.S. District Court for the
Eastern District of Louisiana granted the Defendant's motion to
dismiss.
Plaintiff Kikuchi filed the proposed class and collective action
against her former employer, Defendant Silver Bourbon, for whom she
worked as an exotic dancer from 2017 to 2020. The Plaintiff
alleges that, during the relevant time, she and her co-workers were
misclassified as independent contractors. She brings the action
for damages arising from the Defendant's alleged violations of the
Fair Labor Standards Act1 ("FLSA") and the Louisiana Wage Payment
Act ("LWPA").
Now before the Court is Defendant Silver Bourbon's Motion to
Dismiss Pursuant to Rule 12(b)(3). In the Motion, the Defendant
asserts that the Plaintiff entered into a valid agreement to
arbitrate her claims when she signed a document titled "Negotiated
Independent Entertainer/Dancer Contract."
The Contract bears the handwritten signature of the
"Dancer/Independent Contractor" and the handwritten signature of
the representative for "N'Awlins Entertainment Group." The
Defendant also provides two Affidavits of Kaycee Fruchtnicht to
authenticate the document and identify the dancer's signature as
the Plaintiff's.
Finding the parties' initial briefing insufficient, on April 28,
2021, the Court Ordered that the parties submit additional briefing
to the Court addressing whether the contract theories of agency and
third-party beneficiary should apply to the interpretation of the
Contract. The parties filed their supplemental briefings as
directed. In support of the Defendant's Supplemental Memorandum,
the Defendant attaches a third affidavit, the Affidavit of P.J.
Olano, to verify that the signatory for N'Awlins Entertainment
Group had the authority to sign the Contract on behalf of Defendant
Silver Bourbon.
In both the original and supplemental briefings, the Defendant asks
the Court to find that the Contract's arbitration clause precludes
the Plaintiff from pursuing her claims in the Court and dismiss the
Plaintiff's claims against it. The Plaintiff opposes.
Discussion
The question before the Court is whether the Plaintiff's claims are
subject to arbitration. This inquiry is governed by the Federal
Arbitration Act ("FAA"), which broadly applies to any written
provision in "a contract evidencing a transaction involving
commerce to settle by arbitration a controversy thereafter arising
out of such contract or transaction."
I. The Parties Agreed to Arbitrate this Dispute.
A. A Valid Arbitration Agreement Exists.
The Plaintiff provides the Court with two primary arguments as to
why the Contract presented by the Defendant does not constitute a
valid arbitration agreement. First, she asserts that the Affidavit
of Kaycee Fruchtnicht does not properly authenticate the Contract.
Second, she argues that, even if the Contract is properly
authenticated, the Contract does not evidence mutual intent to
arbitrate.
Judge Milazzo finds that the Fruchtnicht Affidavits sufficiently
authenticate the Contract. In the Affidavits, Fruchtnicht states
that she is the custodian of the records, that such records are
kept in the ordinary course of business, and that she has personal
knowledge that the Contract is signed by the Plaintiff. The
Fruchtnicht Affidavits thus demonstrate that Fruchtnicht is an
individual with personal knowledge of the Contract through whom the
Contract could be admitted as evidence under the business records
exception. Further, the Judge finds significant the fact that
Plaintiff only attacks the form, not the substance, of the
Affidavits. As the Plaintiff has not presented a counter affidavit
or other evidence contradicting the Defendant's contention that the
Plaintiff signed the Contract, the Judge finds that the Fruchtnicht
Affidavits sufficiently authenticate the Plaintiff's signature.
The Judge also finds that the Plaintiff has agreed to arbitrate her
claims against the non-signatory Defendant. N'Awlins Entertainment
had actual express authority to enter into the Contract on behalf
Defendant Silver Bourbon and that the nature of this agency
relationship was disclosed to the Plaintiff. As evidence of
N'Awlins' express authority to contract on Silver Bourbon's behalf,
the Judge finds sufficient the Affidavit of P.J. Olano, the
President of Defendant Silver Bourbon, wherein Olano swears that
"N'Awlins Entertainment Group and the person who signed the
Arbitration Agreement on behalf of N'Awlins Entertainment Group had
the actual specific authority to sign on behalf of Silver Bourbon
d/b/a Scores."
Finally, the Contract requires the Plaintiff to resolve by
arbitration "any dispute that should arise in connection with this
contract and/or their working at any of the subject clubs. The
Plaintiff's current lawsuit for damages under the FLSA and LWPA
against the Defendant, a listed member club, falls squarely within
the scope of the provision. Thus, the Plaintiff has agreed to
arbitrate her claims against the non-signatory Defendant.
B. The Dispute in Question Falls Within the Scope of the
Arbitration Agreement.
Finding the Contract and its arbitration provision valid and
enforceable, Judge Milazzo must next determine whether this dispute
falls within the scope of the arbitration provision.49 The
Contract's arbitration provision states: "It is agreed between the
Dancer/Independent Contractor and N'Awlins Entertainment Group that
should any dispute arise in connection with this contract and/or
their working at any of the subject clubs that said dispute will be
resolved by arbitration only." As the Judge found, the Plaintiff's
claims that she was misclassified and improperly compensated under
the FLSA and LPWA by the Defendant, a "subject club," clearly fall
within the scope of the arbitration provision.
II. No Federal Statute or Policy Renders the Claim Non-arbitrable
and Dismissal is Appropriate.
Finally, Judge Milazzo must determine "whether any federal statute
or policy renders the claims nonarbitrable." She holds that the
Court is not aware of any federal statute precluding arbitration of
the Plaintiff's FLSA or LWPA claims, and the Plaintiff has not
presented the Court with any contrary policy. The Judge thus finds
this inquiry satisfied.
III. Whether the Court Should Dismiss or Stay the Case.
Under the FAA, "a stay is mandatory upon a showing that the
opposing party has commenced suit upon any issue referable to
arbitration under an agreement in writing for such arbitration."
However, "when all of the issues raised in the case are referable
to arbitration, courts may dismiss, rather than stay, the case."
Under such circumstances, "dismissal is within the court's
discretion; it is not required."
In the case, Defendant Silver Bourbon asks that the Court dismiss
the Plaintiff's case and the Plaintiff has not alternatively asked
that the matter be stayed. Accordingly, Judge Milazzo finds that
the matter should be dismissed without prejudice.
Conclusion
For the foregoing reasons, Judge Milazzo granted the Defendant's
Motion to Dismiss. She dismissed the Plaintiff's claims without
prejudice.
A full-text copy of the Court's June 1, 2021 Order & Reasons is
available at https://tinyurl.com/jf7cxhu6 from Leagle.com.
SKILLZ INC: Schall Law Firm Reminds of July 7 Deadline
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The Schall Law Firm, a national shareholder rights litigation firm,
reminds investors of a class action lawsuit against Skillz Inc. for
violations of Secs. 10(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 December
16, 2020 and April 19, 2021, inclusive (the "Class Period"), are
encouraged to contact the firm before July 7, 2021.
We also encourage you to contact Brian Schall of the Schall Law
Firm, 2049 Century Park East, Suite 2460, Los Angeles, CA 90067, at
310-301-3335, to discuss your rights free of charge. You can also
reach us through the firm's website at www.schallfirm.com, or by
email at brian@schallfirm.com.
The class, in this case, has not yet been certified, and until
certification occurs, you are not represented by an attorney. If
you choose to take no action, you can remain an absent class
member.
According to the Complaint, the Company made false and misleading
statements to the market. The three games that comprised the
majority of Skillz's revenue had suffered from a significant
decline. The Company's financial condition was misrepresented by
its revenue recognition policy. The Company's growth projections,
especially in the Android market, were unrealistic. 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 Skillz, investors suffered damages.
CONTACT:
The Schall Law Firm
Brian Schall, Esq.,
www.schallfirm.com
Office: 310-301-3335
info@schallfirm.com
URL: http://www.schallfirm.com
Contact Information:
The Schall Law Firm
Brian Schall, Esq.,
www.schallfirm.com
Office: 310-301-3335
info@schallfirm.com [GN]
STAMPS.COM: Agreement in Principle Reached in Karinski Class Suit
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Stamps.com Inc. said in its Form 8-K filing with the U.S.
Securities and Exchange Commission filed on May 28, 2021, that an
agreement in principle has been reached in Karinski v. Stamps.com,
Inc. et al, Case 2:19-cv-01828 class action suit.
On February 28, 2019 and March 13, 2019, two putative class action
complaints were filed against the company in the United States
District Court for the Central District of California, Western
Division. One of the two putative class actions was dismissed
without prejudice, and the other case, styled as Karinski v.
Stamps.com, Inc. et al, Case 2:19-cv-01828, continued as previously
disclosed in our SEC filings, including the Form 10-K filed on
February 26, 2021.
On May 16, 2019 and May 21, 2019, two purported shareholder
derivative suits were filed in the United States District Court for
the Central District of California, Western Division, and the two
cases were consolidated as In re Stamps.com Stockholder Derivative
Litigation, Case 2:19-cv-04272, and subsequently transferred to the
United States District Court for the District of Delaware; on
October 3, 2019, a purported shareholder derivative suit was filed
against us in a case titled Harvey v. Kenneth T. McBride, et al,
Case No. 1:19-cv-01861-CFC, in the United States District Court for
the District of Delaware; and on February 3, 2021, the Court
consolidated such cases as In re Stamps.com Stockholder Derivative
Litigation, Case No. 1:19-cv-01861-CFC.
Also, as previously disclosed, on August 19, 2019, a purported
shareholder derivative suit was filed against us in a case formerly
titled City of Cambridge Retirement System v. Kenneth T. McBride,
et al, Case No. 2019-0658-AGB (and now titled Macomb County
Employees' Retirement System v. Kenneth T. McBride, et al. Case No.
2019-0658), in the Delaware Court of Chancery.
On May 28, 2021, the lead plaintiff in the Securities Class Action,
the Company and each of the other defendants in the Securities
Class Action reached an agreement in principle to settle the
Securities Class Action.
Under the terms of the agreement in principle, the lead plaintiff,
on behalf of a class of all persons that purchased or otherwise
acquired Company stock between May 3, 2017 and May 8, 2019,
inclusive, would release the Securities Defendants from all claims
asserted or that could have been asserted in the Securities Class
Action and dismiss such claims with prejudice, in exchange for
payment of $100 million to or on behalf of the class by the Company
(a portion of which is expected to be funded by insurance
proceeds).
The agreement in principle remains subject to the satisfaction of
various conditions, including negotiation and execution of a final
stipulation of settlement, notice to the proposed class, and
approval by the United States District Court for the Central
District of California.
Stamps.com said, "If these conditions are satisfied, the proposed
settlement will resolve all claims in the Securities Class Action
against the Company and each of the other Securities Defendants. In
the event that we are unable to execute a final stipulation of
settlement and obtain Court approval, we and all other Securities
Defendants will continue to defend vigorously against the claims
asserted in the Securities Class Action."
On June 3, 2021, the plaintiffs in the Derivative Actions, the
Company and each of the defendants in the Derivative Actions
executed a Term Sheet whereby they agreed to settle the claims in
the Derivative Action pursuant to the Term Sheet. Among other
things, the Term Sheet provides that Derivative Plaintiffs would
release the Derivative Defendants from all claims asserted or that
could have been asserted in the Derivative Actions, in exchange
for: (i) payment of $30 million of insurance proceeds to the
Company on behalf of certain of the Derivative Defendants from D&O
insurance policies purchased by the Company for the benefit of its
directors and officers and the Company; and (ii) the implementation
of certain corporate governance changes by the Company. The Term
Sheet also provides that the parties will negotiate in good faith
concerning a fee and expense award to Derivative Plaintiffs'
counsel.
The Term Sheet remains subject to certain conditions, including
negotiation and execution of a final stipulation of settlement,
notice to the Company's stockholders, and approval by the Court of
Chancery of the State of Delaware.
Stamps.com said, "In the event that we are unable to execute a
final stipulation of settlement and obtain Court approval, the
Derivative Defendants will continue to defend vigorously against
the claims asserted in the Derivative Actions."
Stamps.com Inc. provides Internet-based mailing and shipping
solutions in the United States and Europe. The company offers
mailing and shipping solutions to mail and ship various mail pieces
and packages through the United States Postal Service (USPS) under
the Stamps.com and Endicia brands. The company was formerly known
as StampMaster, Inc. and changed its name to Stamps.com Inc. in
December 1998. Stamps.com Inc. was founded in 1996 and is
headquartered in El Segundo, California.
SYNGENTA CORPORATION: Budde Suit Moved From D. Kan. to E.D. Mo.
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The case styled MELINDA BUDDE, on behalf of herself and all others
similarly situated v. SYNGENTA CORPORATION, BAYER CROPSCIENCE
INCORPORATED, BAYER CROPSCIENCE LP, CORTEVA INCORPORATED, BASF
CORPORATION, CARGILL, INCORPORATED, WINFIELD SOLUTIONS, LLC, UNIVAR
SOLUTIONS, INCORPORATED, CHS INCORPORATED, NUTRIEN AG SOLUTIONS,
INC., GROWMARK, INCORPORATED, SIMPLOT AB RETAIL SUB, INCORPORATED,
TENKOZ INC., FEDERATED CO-OPERATIVES LTD., Case No. 2:21-cv-02095,
was transferred from the U.S. District Court for the District of
Kansas to the U.S. District Court for the Eastern District of
Missouri on June 9, 2021.
The Clerk of Court for the Eastern District of Missouri assigned
Case No. 4:21-cv-00657-SRC to the proceeding.
The case arises from the Defendants' alleged anticompetitive scheme
to deprive farmers of a free and open market and to artificially
increase the price of crop inputs such as seed and crop protection
chemicals like fungicides, herbicides, and insecticides by engaging
in an unlawful conspiracy to boycott electronic platforms.
Syngenta Corporation is a chemical manufacturing company based in
Wilmington, Delaware.
Bayer CropScience Incorporated is a wholly-owned subsidiary of
Bayer AG, headquartered in St. Louis, Missouri.
Bayer CropScience LP is a wholly-owned subsidiary of Bayer AG,
headquartered in Research Triangle Park, North Carolina.
Corteva Incorporated is an American agricultural chemical and seed
company, headquartered in Wilmington, Delaware.
BASF Corporation is a multinational pharmaceutical, seed, and
chemical company, headquartered in Florham Park, New Jersey.
Cargill, Incorporated is an American privately held global food
corporation based in Minnetonka, Minnesota.
Winfield Solutions, LLC is a company that manufactures and
distributes seed and crop protection products, headquartered in
Arden Hills, Minnesota.
Univar Solutions, Incorporated is a global chemical and ingredients
distributor based in Illinois.
CHS Incorporated is a regional agricultural cooperative,
headquartered in Inver Grove Heights, Minnesota.
Nutrien Ag Solutions, Inc. is a crop inputs wholesaler based in
Colorado.
GROWMARK, Incorporated is a crop inputs retailer headquartered in
Illinois.
Simplot AB Retail Sub, Incorporated is a crop inputs retailer
headquartered in Idaho.
Tenkoz Inc. is a crop inputs retailer headquartered in Georgia.
Federated Co-operatives Ltd. is a crop inputs retailer
headquartered in Saskatoon, Saskatchewan. [BN]
The Plaintiff is represented by:
Rex A. Sharp, Esq.
Ruth Anne French-Hodson, Esq.
SHARP LAW, LLP
5301 W. 75th Street
Prairie Village, KS 66208
Telephone: (913) 901-0505
Facsimile: (913) 901-0419
E-mail: rsharp@midwest-law.com
rafrenchhodson@midwest-law.com
- and –
Isaac Diel, Esq.
Greg Bentz, Esq.
SHARP LAW, LLP
6900 College Blvd., Suite 285
Overland Park, KS 66211
Telephone: (913) 901-0505
Facsimile: (913) 901-0419
E-mail: idiel@midwest-law.com
gbentz@midwest-law.com
TURQUOISE HILL: Bid for Protective Order in Securities Suit Denied
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In the case, IN RE TURQUOISE HILL RESOURCES LTD. SECURITIES
LITIGATION, Case No. 20-cv-8585 (LJL) (S.D.N.Y.), Judge Lewis J.
Liman of the U.S. District Court for the Southern District of New
York denies the TRQ Defendants' motion for a protective order.
Defendants Turquoise Hill, Ulf Quellmann, Brandan Lane, and Luke
Colton ("TRQ Defendants") moved for a protective order directing
Lead Plaintiff Pentwater Funds, until the conclusion of the
litigation, from "ceasing all communications with Turquoise Hill
concerning Oyu Tolgoi (including by calling or emailing management,
Board members, or the Investor Relations department) and
prohibiting it from posing questions -- or proposing questions for
others to ask -- on Turquoise Hill's earnings calls and during
other presentations to investors or analysts.
Turquoise Hill is an international mining company focused on the
operation and development of the Oyu Tolgoi copper-gold mine in
Southern Mongolia. Rio Tinto plc and Rio Tinto Limited own 50.8%
of Turquoise Hill through their subsidiaries. Pentwater holds a
9.3% equity stake and has been an active investor in Turquoise
Hill.
On Oct. 14, 2020, a lawsuit was filed against the TRQ Defendants,
Rio Tinto plc, Rio Tinto Limited, Rio Tinto International Holding,
Ltd., Jean-Sebastien Jacques, and Arnaud Soirat alleging securities
fraud claims under Section 10(b) and 20(a) of the Securities
Exchange Act of 1934 and Rule 10b-5 promulgated thereunder. On
Jan. 15, 2021, the Court granted the motion of Pentwater to be
appointed the Lead Plaintiff under the PSLRA. Pentwater filed an
amended complaint on March 17, 2021, and the Defendants filed a
motion to dismiss the amended complaint pursuant to Fed. R. Civ. P.
9(b) and 12(b)(6) on May 17, 2021. The PSLRA stay of discovery is
in effect.
The TRQ Defendants complain that Pentwater representatives,
including the CEO of Pentwater's internal investment advisor,
Pentwater Capital Management, have contacted individuals in
Turquoise Hill's investor relations department and sought answers
to a number of questions about the Oyu Tolgoi mine. The CEO of
Pentwater Capital, Matthew Halbower, made at least five attempts by
phone and email to gather information about operations at the Oyu
Tolgoi mine directly from Turquoise Hill, asking questions such as
whether underground work was expected to resume and whether TRQ
representatives had negotiated with the government of Mongolia.
The communications between Pentwater and Turquoise Hill do not come
in a vacuum. Pentwater has been a substantial shareholder in
Turquoise Hill for the past eight years and, throughout that
period, it has regularly communicated with Turquoise Hill senior
management, including its CEO, Chief Operating Officer, and Chief
Financial Officer as well as with its investor relations personnel
and members of its board of directors. According to Pentwater,
Turquoise Hill affirmatively reached out to Pentwater directly even
after Pentwater's appointment as the Lead Plaintiff.
Discussion
The TRQ Defendants ask the Court to enter an order directing
Pentwater to cease all communications with Turquoise Hill regarding
the Oyu Tolgoi mine -- Turquoise Hill's "only material asset." For
its part, Pentwater has made clear that, absent court order, it
intends to continue to pursue its rights as a shareholder to
"monitor its continuing investment and ask questions about the
Company's ongoing operations" including by "raising questions in
public shareholder forums about the Company's current and future
business." It also intends to "write public letters to the Company
about these matters." It notes that these are "important rights
for current investors." The TRQ Defendants lodge no complaint to
Pentwater continuing to make public statements, and Pentwater has
indicated that its needs as a shareholder can be met without
engaging in one-on-one questions with Turquoise Hill employees.
Judge Liman will deny the request is denied. He explains the Court
has the authority, where appropriate, to direct counsel to cease
from engaging in conduct that is unethical, such as causing its
client to engage in unauthorized communications with the opposing
party or in communications with guile or disguise. It also has
"both the duty and the broad authority to exercise control over a
class action and to enter appropriate orders governing the conduct
of counsel and parties." However, even in a case governed by the
PSLRA, the counsel continues to have the right, and may have the
duty, to investigate its client's claims.
The communications at issue do not implicate the concerns addressed
in Gulf Oil. They do not threaten the proper functioning of the
class action. The communications also do not implicate the rules
of professional conduct. The New York Rules of Professional
Conduct prohibit a lawyer herself from communicating directly with
a party the lawyer knows to be represented by another lawyer or
causing another to do so.
The Judge opines that there is no evidence that counsel in the case
contacted the Defendants or caused Pentwater to do so, either
directly or indirectly. The question therefore is whether a lead
plaintiff, who is also a shareholder of a corporate defendant, may
continue to have communications with the corporation in its
capacity as shareholder at the same time it has sued the
corporation in its capacity as a representative of a class of
persons who bought or sold the corporation's securities. The TRQ
Defendants have not pointed the Court to any authority that would
prevent such communications. The Judge concludes that such
communications are not inconsistent with the PSLRA and are
permissible so long as they comply with the ethics rules.
The TRQ Defendants invoke the concern expressed by the Court in its
prior opinion appointing the Lead Plaintiff about Pentwater wearing
two hats, as the largest minority shareholder in Turquoise Hill and
as class representative. The Court's concern, however, was
markedly different from the concern that Turquoise Hill presents.
The Court's concern was that Pentwater's position as a large
minority shareholder and/or Turquoise Hill's motivation to rid
itself of a gadfly would put pressure on the two to strike a deal
between themselves and to the prejudice of the class.
In short, the Judge finds that the concern that Turquoise Hill
presents here is very different. It does not seek to protect the
interests of the absent class members from a conflict but rather to
protect itself either from questions posed to it by a current
shareholder, or, accepting Turquoise Hill's argument, from an
aggressive prosecution of the case. As the Court previously
concluded, Pentwater's large interest in Turquoise Hill does not
disable it from prosecuting Turquoise Hill; it enhances its ability
to do so. As long as Pentwater's counsel abides by the ethical
rules (including those regarding contact with represented parties),
the Court will not prohibit Pentwater from acting in the best
interests of its investors by asking questions to Turquoise Hill
employees, officers, and directors in public and by issuing public
letters.
Conclusion
For these foregoing reasons, Judge Liman denies TRQ Defendants'
request for relief. He, thus, declines to direct Pentwater to
cease seeking to elicit information from Turquoise Hill in its role
as a shareholder.
A full-text copy of the Court's June 1, 2021 Opinion & Order is
available at https://tinyurl.com/52w9kx27 from Leagle.com.
UBIQUITI INC: Howard G. Smith Reminds of July 19 Deadline
---------------------------------------------------------
Law firm Howard G. Smith Remind investors to: July 19, 2021
Deadline for filing plaintiffs in proceedings filed on behalf of
investors who purchased Ubiquiti Inc. ("Ubiquiti" or "Company")
(NYSE: UI) securities January 11, 2021 And March 30, 2021,
Comprehensive ("class period").
Investors who have lost money on their investment in ubiquity are
advised to contact the following law firms: Howard G. Smith Discuss
legal rights in this class action in 888-638-4847 or email
howardsmith@howardsmithlaw.com.
On March 30, 2021, After the market closes Krebs The security
article has published an article titled "Whistleblower: Ubiquity
Violation'Catastrophic'". January 2021 And, according to the
"Third-party cloud provider claim was a forgery," the attacker
"accessed the privileged credentials previously stored in the
LastPass account of a Ubiquiti IT employee to all Ubiquiti AWS. I
got root administrator access. [Amazon Web Services] An account
that contains all S3 data buckets, all application logs, all
databases, all user database credentials, and the secret required
to forge single sign-on (SSO) cookies. 'Rather than getting
credentials and forcing a reset and asking the customer to change
their password the next time they log on.
The news caused the company's stock price to fall $ 50.70, Or close
at 14.5% $ 298.30 Per share March 31, 2021, About unusually large
trading volume.
The complaint filed in this class action not only made a materially
false and / or misleading statement by the defendant during the
class action, but also disclosed materially unfavorable facts about
our business, operations and outlook. I insist that I
didn't.Specifically, the defendant was unable to speak completely
and honestly in his statement regarding the data breach because he
did not disclose it to investors: (1) We downplayed the data
breach. January 2021(2) An attacker gains administrative access to
Ubiquiti's servers and, among other things, access to all
databases, all user database credentials, and the secrets needed to
forge single sign-on (SSO) cookies. Acquired the right. (3) As a
result, the intruder already had the credentials needed to remotely
access Ubiquiti's customer's system. (4) As a result of the above,
Defendant's positive remarks regarding our business, business and
outlook were significantly misleading and / or lacked reasonable
grounds.
If you purchase or otherwise acquire Ubiquity Securities during the
class action period, you may move to court at the latest. July 19,
2021 If you meet certain legal requirements, ask the court to
nominate you as the primary plaintiff. You do not need to do
anything at this time to become a member of a class action
proceeding. You can retain the lawyer of your choice or take no
action and remain an absent member of the class action proceedings.
If you would like to know more about this class action, or if you
have any questions regarding this announcement or your rights or
interests in these matters, Howard G. Smith, Esquire, Law firm
Howard G. Smith, 3070 Bristol Pike, Suite 112, Bensalem,
Pennsylvania 19020, by phone (215) 638-4847, toll free (888)
638-4847, or by email howardsmith@howardsmithlaw.com, Or visit the
following website: www.howardsmithlaw.com.
This press release may be considered a lawyer advertisement in some
jurisdictions under applicable law and ethical rules. [GN]
UBIQUITI INC: Schall Law Firm Reminds 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
§§10(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.
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.
CONTACT:
The Schall Law Firm
Brian Schall, Esq.,
www.schallfirm.com
Office: 310-301-3335
info@schallfirm.com [GN]
UNITED PARCEL: Judge Hands Partial Victory in Labor Class Suit
--------------------------------------------------------------
Law360 reports that a California federal judge on June 7 handed UPS
a partial victory in a class action over meal and rest breaks for
its workers, holding that the company's wage statements comply with
labor law while allowing an employee's individual rest break claim
to proceed. [GN]
UNITED STATES: Morrison & Foerster Attorney Discusses IGRA Case
---------------------------------------------------------------
James Sigel, Esq., of Morrison & Foerster LLP, in an article for
JDSupra, reports that the Ninth Circuit elaborates on the Indian
Gaming Regulation Act's "two-step determination" regarding the
effects of a new casino on tribal land and clarifies when a
post-certification class action settlement agreement is unfair and
collusive.
KALISPEL TRIBE OF INDIANS V. U.S. DEPARTMENT OF THE INTERIOR
The Court holds that the Secretary of the Interior may approve an
Indian Tribe's application for an off-reservation casino under the
Indian Gaming Regulation Act even if the new casino would have a
detrimental impact on another nearby Tribe, so long as that impact
is offset by benefits to the entire surrounding community. It also
holds that the Secretary's decision to grant the Spokane Tribe's
application in this case did not violate the Administrative
Procedure Act.
Panel: Judges Berzon, Christen, and Bade, with Judge Christen
writing the opinion
Key Highlight: "A showing that additional gaming may be detrimental
to some members of the surrounding community, including an Indian
tribe, does not dictate the outcome of the Secretary's two-step
determination."
Background: In 2001, the Spokane Tribe sought a permit from the
Department of the Interior under the Indian Gaming Regulation Act
(IGRA) to enable them to open a casino in Airway Heights, WA. The
nearby Kalispel Tribe of Indians objected to the proposed casino,
as it would be located only two miles away from their Northern
Quest Resort and Casino. Competition with the new Spokane casino,
Kalispel argued, would reduce the revenue the Tribe derived from
Northern Quest, seriously impairing its ability to pay its debts
and provide for its members. In 2015, the Secretary of the Interior
granted the Spokane Tribe's permit. As required by the IGRA, the
Secretarial Determination found that the new casino 1) "would be in
the best interest of the [Spokane] tribe" and 2) "would not be
detrimental to the surrounding community."
The Kalispel Tribe sued the Secretary of the Interior in federal
court in 2017, alleging that the decision to grant the Spokane
Tribe's permit -- and in particular the Secretary's "two-step
determination" that the proposed casino "would not be detrimental
to the surrounding community" -- violated the IGRA and the
Administrative Procedure Act. The Spokane Tribe intervened in the
matter, and both sides moved for summary judgment. The district
court rejected Kalispel's claims and granted summary judgment in
favor of the Secretary and Spokane.
Result: The Ninth Circuit affirmed the district court's decision,
upholding the Secretary's approval of the new Spokane Tribe
casino.
Kalispel argued that "any detriment to a nearby Indian tribe"
precluded the Secretary from finding that a new casino "would not
be detrimental to the surrounding community." The Court disagreed,
holding that benefits to certain segments of the community can
offset harm to other community members. The Court pointed to Bureau
of Indian Affairs regulations defining "surrounding community" to
include more than just nearby Indian tribes, and it reasoned that
"requiring a complete alignment of interests in the surrounding
community" would "frustrate Congress's purpose for enacting IGRA."
Though harm to one entity could be so severe as to render it a net
detriment to the community, "[a] showing that additional gaming may
be detrimental to some members of the surrounding community . . .
does not dictate the outcome of the Secretary's two-step
determination."
The Court also rejected Kalispel's claim that the Secretary had not
adequately considered the threat to the Tribe and had put forward
"implausible explanations that were inconsistent with the record."
Rather, the Secretary's formal decision repeatedly referenced the
possible loss of revenue by the Kalispel Tribe -- it had just found
that they were outweighed by benefits to the rest of the community.
And though Kalispel had submitted two private reports supporting
its predicted economic injuries, the Secretary sided with the
Department of Interior's own studies of the situation, which
projected that the Kalispel Tribe's revenue would rebound after the
new casino opened. Especially in light of the deference given to
predictive judgments within an agency's area of expertise, the
Court held that, though Kalispel's asserted injuries were "real and
cognizable detriments," the Secretary's two-step determination was
not arbitrary and capricious under the APA.
BRISENO V. HENDERSON
The Court extends its precedent in In re Bluetooth Headset Products
Liability Litigation to post-certification class action settlement
agreements, holding that such agreements are subject to heightened
scrutiny for unfairness and collusion.
The Panel: Judges Owens, Lee, and Ezra (W.D. Tex.), with Judge Lee
writing the opinion
Key Highlight: "While courts should not casually second-guess class
settlements brokered by the parties, they should not greenlight
them, either, just because the parties profess that their dubious
deal is 'all right, all right, all right.' We reverse the district
court's approval of the class settlement because the agreement
raises a squadron of red flags billowing in the wind and begging
for further review."
Background: The plaintiffs in this case filed a class action
lawsuit against ConAgra, alleging that its branding of Wesson Oil
as "100% Natural" was misleading (since it contained ingredients
from genetically modified organisms) and that the plaintiffs
overpaid for the product because of that misleading label. The
district court granted class certification under Rule 23(b)(3).
Shortly thereafter, the parties reached a settlement agreement. The
agreement contained a so-called "clear sailing" provision, under
which ConAgra agreed not to contest the $6.75M in attorney's fees
for class counsel, and a "kicker" clause, stipulating that any
reduction in the amount of attorney's fees would revert to ConAgra
rather than augmenting the award for the class. And though the
parties represented that the settlement was worth $100M, ConAgra
actually only paid $8M, seven-eighths of which went to class
counsel. A member of the class -- law professor M. Todd Henderson
-- objected to the settlement, but the district court nonetheless
accepted the agreement. Henderson appealed.
Result: The Ninth Circuit reversed. The Court held that its
standard for assessing the fairness of pre-certification class
settlement agreements, set forth in the 2020 In re Bluetooth
Headset Products Liability Litigation case, also applies to
post-certification settlement agreements. The Court noted that Rule
23(e)(2), which requires courts to ensure that class settlements
are "fair, reasonable, and adequate," draws no distinction between
pre-certification and post-certification settlement. And though the
incentive for class counsel to collude with the defendant "reaches
its apex pre-class certification," even after certification "class
counsel still has the incentive to conspire with the defendant"
while the defendant has every reason to go along "because it cares
only about the total payout, not the division of funds between
class and class counsel." In light of these incentives and Rule
23(e)(2)'s broad language, the Court held that the heightened
scrutiny of the Bluetooth test also applies to post-certification
settlements.
Applying Bluetooth, the Court found that this settlement agreement
"features all three red flags of potential collusion that we warned
about in Bluetooth": counsel receiving a disproportionate amount of
the settlement; a clear sailing provision; and a kicker clause.
Though the Court clarified that these "red flags" are not per se
unfair and may just "be elements of a good deal," district courts
"must scrutinize them where they appear . . . . to ensure that the
parties have not colluded at class members' expense." Accordingly,
it remanded the case to the district court for further
proceedings.
The Court also found that the injunctive relief included in the
settlement agreement was "virtually worthless" and that the
district court committed reversible error "by placing even 'some
value'" on the remedy. The injunction in question prohibited
ConAgra from marketing Wesson Oil as "100% Natural." But not only
had ConAgra already stopped that practice well before the
settlement agreement was reached, ConAgra did not even own Wesson
Oil anymore. "ConAgra," the Court commented, "essentially agreed
not to do something over which it lacks the power to do." The
promise was illusory, and thus the injunction was "practically
worthless."
Finally, the court disagreed with Henderson that the district court
had improperly shifted the burden to him to prove that the
settlement was unfair. The Court reaffirmed that "Rule 23(e)(2)
presumes that a class action settlement is invalid" and that
applying the opposite presumption is reversible error, but it found
that the district court had not made that error here (despite some
infelicitous wording suggesting otherwise). [GN]
VERVE INC: Angeles Files ADA Suit in S.D. New York
--------------------------------------------------
A class action lawsuit has been filed against Verve, Inc. The case
is styled as Jenisa Angeles, on behalf of herself and all others
similarly situated v. Verve, Inc., Case No. 1:21-cv-05133
(S.D.N.Y., June 10, 2021).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Verve Group -- https://verve.com/ -- is a privacy-first omnichannel
ad platform offering programmatic solutions that connect
advertisers and publishers to people in real time.[BN]
The Plaintiff is represented by:
Mark Rozenberg, Esq.
STEIN SAKS, PLLC
285 Passaic Street
Hackensack, NJ 07601
Phone: (201) 282-6500
Email: mrozenberg@steinsakslegal.com
VIRGIN GALACTIC: Frank R. Cruz Reminds of July 27 Deadline
----------------------------------------------------------
The Law Offices of Frank R. Cruz on June 7 disclosed that a class
action lawsuit has been filed on behalf of persons and entities
that purchased or otherwise acquired Virgin Galactic Holdings, Inc.
("Virgin Galactic" or the "Company") (NYSE: SPCE) securities
between October 26, 2019 and April 30, 3021, inclusive (the "Class
Period"). Virgin Galactic investors have until July 27, 2021 to
file a lead plaintiff motion.
On October 25, 2019, post-market, Virgin Galactic was formed by a
business combination between Social Capital Hedosophia Holdings
Corp. ("SCH"), a special purpose acquisition company ("SPAC"), and
the Company's then-private predecessor, after which SCH changed its
name to "Virgin Galactic Holdings, Inc." and its ticker symbol to
"SPCE" (the "Business Combination").
On April 12, 2021, the U.S. Securities and Exchange Commission
("SEC") issued guidance advising that SPAC warrants, which are
instruments that allow investors to buy additional shares at a
fixed price, may need to be classified as liabilities rather than
equity for many SPAC transactions, which had previously been
accounted for as equity in these deals.
On April 30, 3021, post-market, Virgin Galactic announced in a
press release "that it has rescheduled the reporting of its
financial results for the first quarter 2021 to following the close
of the U.S. markets on Monday, May 10, 2021. Virgin Galactic will
now host a conference call to discuss the results and provide a
business update that day at 2:00 p.m., Pacific Time (5:00 p.m.,
Eastern Time). The Company is rescheduling its reporting due to the
recent statement issued by the [SEC] on April 12, 2021 relating to
the accounting treatment of warrants issued by special purpose
acquisition companies (the 'SEC Statement')." The company further
advised that "following its review of the SEC Statement and
consulting with its advisors, the Company will restate its
consolidated financial statements included in its Annual Report on
Form 10-K for the fiscal year ended December 31, 2020. The
restatement is due solely to the accounting treatment for the
warrants of Social Capital Hedosophia Holdings Corp. that were
outstanding at the time of the Company's business combination on
October 25, 2019. The Company expects to file the restated
financials prior to the new conference call date and estimates that
it will recognize incremental non-operating, non-cash expense for
each of the fiscal years ended December 31, 2020 and December 31,
2019."
On this news, Virgin Galactic's stock price fell $2.01 per share,
or 9.07%, to close at $20.14 per share on May 3, 2021.
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 that: (1) for accounting
purposes, SCH's warrants were required to be treated as liabilities
rather than equities; (2) Virgin Galactic had deficient disclosure
controls and procedures and internal control over financial
reporting; (3) as a result, the Company improperly accounted for
SCH warrants that were outstanding at the time of the Business
Combination; and (4) as a result, Defendants' statements about its
business, operations, and prospects, were materially false and
misleading and/or lacked a reasonable basis at all relevant times.
If you purchased Virgin Galactic securities during the Class
Period, you may move the Court no later than July 27, 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 Virgin Galactic 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]
VIRGIN GALACTIC: Glancy Prongay Reminds of July 27 Deadline
-----------------------------------------------------------
Glancy Prongay & Murray LLP ("GPM"), a leading national shareholder
rights law firm, on June 7 disclosed that a class action lawsuit
has been filed on behalf of investors who purchased or otherwise
acquired Virgin Galactic Holdings, Inc. ("Virgin Galactic" or the
"Company") (NYSE: SPCE) securities between October 26, 2019 and
April 30, 3021, inclusive (the "Class Period"). Virgin Galactic
investors have until July 27, 2021 to file a lead plaintiff
motion.
If you suffered a loss on your Virgin Galactic investments or would
like to inquire about potentially pursuing claims to recover your
loss under the federal securities laws, you can submit your contact
information at
https://www.glancylaw.com/cases/virgin-galactic-holdings-inc/. You
can also contact Charles H. Linehan, of GPM at 310-201-9150,
Toll-Free at 888-773-9224, or via email at
shareholders@glancylaw.com to learn more about your rights.
On October 25, 2019, post-market, Virgin Galactic was formed by a
business combination between Social Capital Hedosophia Holdings
Corp. ("SCH"), a special purpose acquisition company ("SPAC"), and
the Company's then-private predecessor, after which SCH changed its
name to "Virgin Galactic Holdings, Inc." and its ticker symbol to
"SPCE" (the "Business Combination").
On April 12, 2021, the U.S. Securities and Exchange Commission
("SEC") issued guidance advising that SPAC warrants, which are
instruments that allow investors to buy additional shares at a
fixed price, may need to be classified as liabilities rather than
equity for many SPAC transactions, which had previously been
accounted for as equity in these deals.
On April 30, 3021, post-market, Virgin Galactic announced in a
press release "that it has rescheduled the reporting of its
financial results for the first quarter 2021 to following the close
of the U.S. markets on Monday, May 10, 2021. Virgin Galactic will
now host a conference call to discuss the results and provide a
business update that day at 2:00 p.m., Pacific Time (5:00 p.m.,
Eastern Time). The Company is rescheduling its reporting due to the
recent statement issued by the [SEC] on April 12, 2021 relating to
the accounting treatment of warrants issued by special purpose
acquisition companies (the 'SEC Statement')." The company further
advised that "following its review of the SEC Statement and
consulting with its advisors, the Company will restate its
consolidated financial statements included in its Annual Report on
Form 10-K for the fiscal year ended December 31, 2020. The
restatement is due solely to the accounting treatment for the
warrants of Social Capital Hedosophia Holdings Corp. that were
outstanding at the time of the Company's business combination on
October 25, 2019. The Company expects to file the restated
financials prior to the new conference call date and estimates that
it will recognize incremental non-operating, non-cash expense for
each of the fiscal years ended December 31, 2020 and December 31,
2019."
On this news, Virgin Galactic's stock price fell $2.01 per share,
or 9.07%, to close at $20.14 per share on May 3, 2021.
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 that: (1) for accounting
purposes, SCH's warrants were required to be treated as liabilities
rather than equities; (2) Virgin Galactic had deficient disclosure
controls and procedures and internal control over financial
reporting; (3) as a result, the Company improperly accounted for
SCH warrants that were outstanding at the time of the Business
Combination; and (4) as a result, Defendants' statements about its
business, operations, and prospects, were materially false and
misleading and/or lacked a reasonable basis at all relevant times.
If you purchased or otherwise acquired Virgin Galactic securities
during the Class Period, you may move the Court no later than July
27, 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 wish to learn more about this
action, or if you have any questions concerning this announcement
or your rights or interests with respect to these matters, please
contact Charles Linehan, Esquire, of GPM, 1925 Century Park East,
Suite 2100, Los Angeles California 90067 at 310-201-9150, Toll-Free
at 888-773-9224, by email to shareholders@glancylaw.com, or visit
our website at www.glancylaw.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:
Glancy Prongay & Murray LLP, Los Angeles
Charles H. Linehan, 310-201-9150 or 888-773-9224
1925 Century Park East, Suite 2100
Los Angeles, CA 90067
www.glancylaw.com
shareholders@glancylaw.com [GN]
WAKEFIELD & ASSOCIATES: Nasta Files FDCPA Suit in W.D.N.C.
----------------------------------------------------------
A class action lawsuit has been filed against Wakefield and
Associates, Inc., et al. The case is styled as Jody Nasta,
individually and on behalf of all others similarly situated v.
Wakefield and Associates, Inc., John Does 1-25, Case No.
3:21-cv-00276-FDW-DSC (W.D.N.C., June 10, 2021).
The lawsuit is brought over alleged violation of the Fair Debt
Collection Practices Act.
Wakefield & Associates -- https://www.wakeassoc.com/ -- has
established itself as a leading provider of accounts receivable
management and delinquent account recovery in the healthcare
arena.[BN]
The Plaintiff is represented by:
C. Randolph Emory, Esq.
THE EMORY LAW FIRM, P.C.
11020 David Taylor Drive, Suite 102
Charlotte, NC 28262
Phone: (704) 371-4333
Fax: (704) 371-3015
Email: emorylawecf@gmail.com
WALMART INC: Opioids Related Class Suits Underway
-------------------------------------------------
Walmart Inc. said in its Form 10-Q Report filed with the Securities
and Exchange Commission on June 4, 2021, for the quarterly period
ended April 30, 2021, that the company continues to defend two
class action suits regarding the Company's disclosures with respect
to opioids.
The Company is the subject of two securities class actions alleging
violations of the federal securities laws regarding the Company's
disclosures with respect to opioids, filed in the U.S. District
Court for the District of Delaware on January 20, 2021 and March 5,
2021 purportedly on behalf of a class of investors who acquired
Walmart stock from March 30, 2016 through December 22, 2020. Those
cases have been consolidated.
Derivative actions were also filed by two of the Company's
shareholders in the U.S. District Court for the District of
Delaware on February 9, 2021 and April 16, 2021 alleging breach of
fiduciary duties against certain of its current and former
directors with respect to oversight of the Company's distribution
and dispensing of opioids and also alleging violations of the
federal securities laws and other breaches of duty by current
directors and two current officers in connection with the Company's
opioids disclosures.
The Company cannot reasonably estimate any loss or range of loss
that may arise from the various Opioids Litigation and intends to
vigorously defend these litigation matters.
Walmart said, "Accordingly, the Company can provide no assurance as
to the scope and outcome of these matters and no assurance as to
whether its business, financial position, results of operations or
cash flows will not be materially adversely affected."
Walmart Inc., is engaged in the operation of retail, wholesale and
other units in various formats around the world. The Bentonville,
Arkansas-based Company operates through three segments: Walmart
U.S., Walmart International and Sam's Club. The Company was
previously known as Wal-Mart Stores, Inc. and changed its name to
Walmart Inc. on February 1, 2018.
WASHINGTON DC: Seeks Filing Extension for Class Cert. Bid Response
------------------------------------------------------------------
In the class action lawsuit captioned as SUNDAY HINTON v. DISTRICT
OF COLUMBIA, Case No. 1:21-cv-01295-JDB (D.D.C.), the Defendant
submits consent motion for an extension of time to respond to the
plaintiff's motions for preliminary injunction and class
certification.
The Plaintiff filed motions for preliminary injunction and class
certification on May 11, 2021 and a supplemental memorandum in
support of those motions on June 1, 2021. The Defendant's responses
are currently due June 15, 2021, and plaintiff's replies are
currently due June 22, 2021.
The Defendant seeks a three-day extension to respond to plaintiff's
motions, making the responses due June 18, 2021, and a three-day
extension for plaintiff's replies, making the replies due June 25,
2021. There is good cause for the requested extensions because it
would give the Parties adequate time to respond to each other's
arguments in light of the press of other matters. The District is
also reviewing the challenged policy and considering changes, the
Defendant says.
A copy of the Defendant's motion dated June 9, 2021 is available
from PacerMonitor.com at https://bit.ly/3vm3Gi5 at no extra
charge.[CC]
The Defendant is represented by:
Karl A. Racine, Esq.
Fernando Amarillas, Esq.
Pamela Disney, Esq.
Brendan Heath, Esq.
Andrew J. Saindon, Esq.
400 Sixth Street, N.W., Suite 10100
Washington, D.C. 20001
Telephone: (202) 807-0371
E-mail: pamela.disney@dc.gov
XTO ENERGY: Court Denies Bid to Dismiss Brusamonti Class Suit
-------------------------------------------------------------
In the case, PETER BRUSAMONTI, et al., Plaintiffs v. XTO ENERGY
INC., Defendant, Civil Action No. 20-652 (W.D. Pa.), Judge Cathy
Bissoon of the U.S. District Court for the Western District of
Pennsylvania denied the Defendant's Motion to Dismiss.
The Plaintiffs claim that, when the Defendant upgraded its oil and
gas royalty-revenue calculation and check writing software, the new
system (inadvertently, the parties presumably agree) shifted them
from "gross royalty" lessors to "net royalty" lessors, i.e., they
started having post-production deductions improperly withheld. It
is not hard to imagine their reaction, when their check(s) were
suddenly and significantly reduced. As a result, the Plaintiffs
retained counsel, and the putative class-action, in diversity,
followed.
The Defendant argues that the case should be dismissed because the
Plaintiffs did not comply with a notice-and-cure provision in the
lease, which required written notice of the lessor(s)' demands, and
a 60-day cure period, as preconditions to suit. The Plaintiffs
respond that there is no such impediment, because Defendant sent a
letter -- in January 2019 -- acknowledging that its system upgrade
may result in untimely and inaccurate payments. In light of this
acknowledgement, the Plaintiffs say, the Defendant had actual
notice of the defect(s), rendering the notice-and-cure provision
inapplicable.
Judge Bissoon does not believe that these issues properly may be
resolved under Rule 12(b). She says all of the cases cited by the
Defendant, save one, were resolved on summary judgment. The Court
of Appeals for the Third Circuit's unpublished decision in Linder
v. SWEPI, LP was both decided on summary judgment, and is dicta.
Along the same lines, the Judge finds that the Defendant has failed
to persuade the Court that the Plaintiffs' "actual notice" argument
is ineffectual -- or that it properly may be resolved under the
relatively lenient standards now-applicable. In fact, she says the
Plaintiffs' "actual notice" theory may go even further, given that
the Defendant provided anticipatory and affirmative notice to the
lessors of its awareness of potential defect(s). Whether viewed
through the prism of detrimental reliance or otherwise, the
Plaintiffs' position is not lacking under general equity
principles.
For these reasons, the Defendant has not persuaded the Court that
dismissal is appropriate, and its Motion is denied. Rule 12(a)(4)
now governs its answer deadline, but -- should the parties agree
that an amicable resolution is worth exploring -- the Court will
entertain a joint request to extend the deadline. Along the same
lines, the Court would be willing to entertain a joint request to
move the mandatory-ADR process to the fore.
By all appearances, the case involves admitted payment-shortfalls,
resulting from the vagaries of modern technology. The Defendant --
having made the (disputed) claim that the named Plaintiffs since
have been made whole -- does not appear to resist paying
those-affected what they are owed. While, unfortunately,
litigation was necessary (whether actually, or as a matter of
perception) -- and some reasonable compensation for the counsels'
efforts is warranted -- this situation should not degenerate into
one where litigation fees and expenses detract from the true and
ultimate goal, namely, paying affected lessors what they are owed.
A full-text copy of the Court's June 1, 2021 Order is available at
https://tinyurl.com/wwcharap from Leagle.com.
ZALE DELAWARE: Kaint Files Suit in Cal. Super. Ct.
--------------------------------------------------
A class action lawsuit has been filed against Zale Delaware, Inc.,
et al. The case is styled as Tarvinder Kainth, and on behalf of all
others similarly situated v. Zale Delaware, Inc., a Delaware
Corporation; Does 1-10, Inclusive; Case No. CGC21592138 (Cal.
Super. Ct., San Francisco Cty., June 10, 2021).
The case type is stated as "OTHER NON EXEMPT COMPLAINTS".
The Zale Corporation -- http://zalecorp.com/-- is an American
jewelry retailer, incorporated in Delaware in 1993.[BN]
The Plaintiff is represented by:
James R. Hawkins, Esq.
JAMES HAWKINS APLC
9880 Research Dr., Ste. 200
Irvine, CA 92618
Phone: 949-387-7200
Fax: 949-387-6676
Email: James@jameshawkinsaplc.com
ZOOM VIDEO: Kane ADA Suit Transferred to N.D. California
--------------------------------------------------------
The case styled as Russell Kane, Christopher Myers, individually
and on behalf of all others similarly situated v. Zoom Video
Communications, Inc., Does 1-10, Case No. 2:20-cv-06136, was
transferred from the U.S. District Court for the Eastern District
of New York, to the U.S. District Court for the Northern District
of California on June 10, 2021.
The District Court Clerk assigned Case No. 4:21-cv-04488-JST to the
proceeding.
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Zoom Video Communications, Inc. -- https://zoom.us/ -- is an
American communications technology company headquartered in San
Jose, California.[BN]
The Plaintiffs are represented by:
Scott Adam Kamber, Esq.
KAMBERLAW LLC
201 Milwaukee Street, Ste. 200
Denver, CO 80206
Phone: (646) 964-9600
Fax: (212) 202-6364
Email: skamber@kamberlaw.com
The Defendants are represented by:
David F. McDowell, Esq.
MORRISON & FOERSTER LLP
707 Wilshire Boulevard
Los Angeles, CA 90017
Phone: (213) 892-5200
Fax: (213) 892-5454
Email: DMcDowell@mofo.com
- and -
Haimavathi V. Marlier, Esq.
MORRISON & FOERSTER LLP
250 W. 55th Street
New York, NY 10019
Phone: (212) 336-4409
Email: hmarlier@mofo.com
ZUMIEZ INC: Mediation in Herrera Suit Set for June 23
-----------------------------------------------------
Zumiez Inc. said in its Form 10-Q Report filed with the Securities
and Exchange Commission on June 7, 2021, for the quarterly period
ended May 1, 2021, that the parties in Alexia Herrera, on behalf of
herself and all other similarly situated, v. Zumiez Inc., have
scheduled a mediation with a private mediator on June 23, 2021.
A putative class action, Alexia Herrera, on behalf of herself and
all other similarly situated, v. Zumiez Inc., was filed against the
company in the Eastern District Count of California, Sacramento
Division under case number 2:16-cv-01802-SB in August 2016.
Alexandra Bernal filed the initial complaint and then in October
2016 added Alexia Herrera as a named plaintiff and Alexandra Bernal
left the case.
The putative class action lawsuit against the company alleges,
among other things, various violations of California's wage and
hour laws, including alleged violations of failure to pay reporting
time.
In May 2017 the company moved for judgment on the pleadings in that
plaintiff's cause of action for reporting-time pay should fail as a
matter of law as the plaintiff and the other putative class members
did not "report for work" with respect to certain shifts on which
the plaintiff's claims are based.
In August 2017, the court denied the motion. However, in October
2017 the district court certified the order denying the motion for
judgment on the pleadings for immediate interlocutory review by the
United States Court of Appeals for the Ninth Circuit.
The company then filed a petition for permission to appeal the
order denying the motion for judgment on the pleadings with the
United States Court of Appeals for the Ninth Circuit, which
petition was then granted in January 2018. The company's opening
appellate brief was filed on June 6, 2018 and the plaintiff's
answering appellate brief was filed August 6, 2018. The company's
reply brief to the Plaintiff's answering appellate brief was filed
on September 26, 2018 and oral arguments were completed on February
4, 2019.
On May 20, 2019, the United States Court of Appeals for the Ninth
Circuit granted the company's motion for leave to file a
supplemental brief addressing new authority. On June 10, 2019, the
plaintiff's supplemental answering brief was filed with the United
States Court of Appeals for the Ninth Circuit. The company then
filed its supplemental reply brief to the plaintiff's supplemental
answering brief with the United States Court of Appeals for the
Ninth Circuit on June 24, 2019.
On March 19, 2020 the United States Court of Appeals for the Ninth
Circuit published its opinion (i) affirming the District Court's
denial of judgment on the pleadings on plaintiff's reporting time
pay and minimum wage claims, (ii) reversing the District Court's
denial of judgment on the pleadings on plaintiff's expense
reimbursement claim and (iii) refusing to certify the reporting
time pay question to the California Supreme Court.
On April 2, 2020 the company filed a petition for rehearing en banc
to certify the reporting time pay question to the California
Supreme Court and on April 27, 2020 plaintiff filed a response to
our petition for rehearing en banc.
The company in turn filed a reply in support of our petition for
rehearing en banc on May 1, 2020. On May 14, 2020, the United
States Court of Appeals for the Ninth Circuit denied the company's
petition for rehearing en banc. The case was remanded to the
Eastern District of California, Sacramento for further proceedings.
The parties have scheduled a mediation with a private mediator on
June 23, 2021. A status conference is scheduled with the court on
July 22, 2021.
Zumiez said, "Given the current status of this case, we are unable
to express a view regarding the ultimate outcome or, if the outcome
is adverse, to estimate an amount, or range, of reasonably possible
loss. We have defended this case vigorously and will continue to do
so if mediation is unsuccessful."
Zumiez Inc., founded in 1978, is a mall-based specialty retailer
providing sports-related apparel, footwear, equipment, and
accessories. It also sells miscellaneous novelties and dvds aimed
at young men and women between the ages of 12 and 24 and
private-label apparel. In addition, it sells merchandise on its Web
site, zumiez.com. The company is based in Everett, Washington.
ZUORA INC: Continues to Defend Consolidated IPO Related Class Suit
------------------------------------------------------------------
Zuora, Inc. said in its Form 10-Q Report filed with the Securities
and Exchange Commission on June 4, 2021, for the quarterly period
ended April 30, 2021, that the company continues to defend a
putative consolidated class action suit related to the company's
initial public offering (IPO).
In April and May 2020, two putative securities class action
lawsuits were filed in the Superior Court of the State of
California, County of San Mateo, naming as defendants Zuora and
certain of its current and former officers, its directors and the
underwriters of Zuora's IPO.
The complaints purport to bring suit on behalf of stockholders who
purchased or otherwise acquired Zuora's securities pursuant or
traceable to the Registration Statement and Prospectus issued in
connection with Zuora's IPO and allege claims under Sections 11,
12(a)(2) and 15 of the Securities Act of 1933.
The suits seek unspecified damages and other relief. In July 2020,
the court entered an order consolidating the two lawsuits, and the
lead plaintiff filed a consolidated amended complaint asserting the
same claims.
In October 2020, the court denied defendants' demurrer as to the
Section 11 and Section 15 claims and granted the demurrer as to the
Section 12(a)(2) claim with leave to file an amended complaint.
In November 2020, the lead plaintiff filed an amended consolidated
complaint. Defendants' demurrer to the Section 12(a)(2) claim was
sustained with further leave to amend. Plaintiffs have until July
26, 2021 in which to file a further amended complaint.
Zuora, Inc. is a leading cloud-based subscription management
platform. The company provides software that enables companies
across multiple industries and geographies to launch, manage or
transform to a subscription business model. Architected
specifically for dynamic, recurring subscription business models,
the company's cloud-based software functions as an intelligent
subscription management hub that automates and orchestrates the
entire subscription order-to-revenue process, including billing and
revenue recognition. The company is based in San Mateo,
California.
ZUORA INC: Discovery Ongoing in California Putative Class Suit
--------------------------------------------------------------
Zuora, Inc. said in its Form 10-Q Report filed with the Securities
and Exchange Commission on June 4, 2021, for the quarterly period
ended April 30, 2021, that discovery is ongoing in the putative
securities class suit filed in the U.S. District Court for the
Northern District of California.
In June 2019, a putative securities class action lawsuit was filed
in the U.S. District Court for the Northern District of California
naming Zuora and certain of its officers as defendants.
The complaint purports to bring suit on behalf of stockholders who
purchased or otherwise acquired Zuora's securities between April
12, 2018 and May 30, 2019.
The complaint alleges that defendants made false and misleading
statements about Zuora's business, operations and prospects in
violation of Sections 10(b) and 20(a) of the Securities Exchange
Act of 1934, as amended, and seeks unspecified compensatory
damages, fees and costs.
In November 2019, the lead plaintiff filed a consolidated amended
complaint asserting the same claims.
In April 2020, the Court denied defendants' motion to dismiss. On
March 15, 2021, the Court granted plaintiff's motion to certify a
class consisting of persons and entities who purchased or acquired
Zuora common stock between April 12, 2018 and May 30, 2019 and who
were allegedly damaged thereby.
Discovery in this case is ongoing.
No further updates were provided in the Company's SEC report.
Zuora, Inc. is a leading cloud-based subscription management
platform. The company provides software that enables companies
across multiple industries and geographies to launch, manage or
transform to a subscription business model. Architected
specifically for dynamic, recurring subscription business models,
the company's cloud-based software functions as an intelligent
subscription management hub that automates and orchestrates the
entire subscription order-to-revenue process, including billing and
revenue recognition. The company is based in San Mateo,
California.
[*] Ballard Spahr Attorney Discusses New CFPB Arbitration Rule
--------------------------------------------------------------
Mark Levin, Esq., of Ballard Spahr LLP, in an article for JDSupra,
disclosed that Professor Jeff Sovern responded to our blog
criticizing his proposal for a new CFPB arbitration rule by
asserting that his proposed rule is not substantially the same as
the prior CFPB rule that Congress vetoed and, therefore, the
Congressional Review Act would not bar its promulgation. According
to Professor Sovern: "I don't see how my rule giving consumers a
choice to opt in to arbitration clauses, which could include class
action waivers, could be substantially the same as the earlier rule
which blocked consumers and companies from agreeing to class action
waivers."
In reality, however, the effect of Professor Sovern's proposed rule
would be substantially the same as the CFPB rule. It may be dressed
in sheep's clothing, but it is the same wolf. Much like the CFPB
Rule, the ultimate goal of Professor Sovern's proposed rule is to
allow consumers to bring class actions against companies. The
now-defunct CFPB rule sought to achieve this in a straightforward
manner by prohibiting class action waivers in arbitration
agreements. Professor Sovern's proposed rule seeks to achieve the
same end by more indirect means, namely, by (a) disallowing
companies from entering into consumer arbitration agreements unless
the consumer opts in, while (b) overtly discouraging consumers from
opting in by requiring companies to disclose on the first page of
the contract in big print that the CFPB "recommends that you NOT
sign below" and to read the opt-out aloud to the consumer.
Professor Sovern candidly acknowledges the goal of his proposed
rule is to make sure that "enough consumers didn't opt in so that
class actions would make economic sense."
There you have it. The whole point of Professor Sovern's proposed
rule is to preserve and promote consumer class actions, just like
the CFPB rule that Congress overrode. His comment that a class
action waiver "could" be included in an arbitration agreement that
a consumer opts into is simply illusory, since his proposal is
designed to heavily rig the contracting process to ensure that
consumers do NOT opt in.
Professor Sovern's proposal is different from the CFPB rule in one
respect. As we previously discussed, a consumer who does not opt in
would not be a party to any arbitration agreement. But the CFPB
rule would have allowed a consumer to enter into a predispute
arbitration agreement that did not contain a class action waiver.
That distinction obviously does not help Professor Sovern, since
his proposal directly contradicts the conclusion of the CFPB and
its 735-page empirical study that arbitration is not per se harmful
to consumers or the general public. That in itself should dissuade
the CFPB from acting on Professor Sovern's proposal.
Finally, Professor Sovern does not quarrel with our showing that
the CFPB's own data confirm that consumers fare much better in
arbitration than they do in class action litigation. Still, he
derides our showing as an "industry talking point" that is
"deceptive" because "consumers rarely seek to arbitrate." But why
aren't there more consumer arbitrations? Precisely because consumer
advocates like Professor Sovern and the plaintiffs' class action
bar for years have poisoned the well by repeatedly denigrating
arbitration as an unfair and abusive practice - even though the
statistics show otherwise. And, the CFPB itself, which encouraged
its own employees to use alternative dispute resolution because it
produces "faster and less contentious results," has failed to
educate the public -- its very constituency -- on the many benefits
of arbitration. That's what the CFPB should expend its resources
on. [GN]
[*] Butler Snow Attorney Discusses Class Rep Incentive Award
------------------------------------------------------------
Kyle Miller, Esq., of Butler Snow LLP, in an article for JDSupra,
reports that The scenario is all too familiar for manufacturers of
consumer goods:
* A plaintiff files suit on behalf of himself and seeks to have a
class action certified to allow him to prosecute his claim on
behalf of all other similarly situated purchasers.
* Litigation ensues; discovery is conducted.
* At some point the defendant determines that the risk of a class
being certified and a judgment being entered against it is too
great to bear, so a class action settlement is reached.
The defendant will pay a lump sum amount of money into a common
fund.
Class counsel will take from that fund their attorneys' fees (often
north of 30% of the fund).
The class representative will take from that fund an "incentive
award" of a few thousand dollars as compensation for his
inconvenience serving as class representative.
The remainder of the common fund will be divided among the absent
class members, often leaving them with meager amounts of
compensation.
Time and time again this scenario repeats itself and necessarily
begs the question: Who is supposed to be protecting the interests
of the absent class members in these settlements -- class counsel
who is taking more than 30% of the total recovery (often in the
millions) or the class representative recovering many times over
what the absent class members are receiving?
Recently, the United States Court of Appeals for the Eleventh
Circuit stripped the granting of an incentive award due to the fact
that the award -- which the Court equated to a "bounty" -- created
a conflict of interest between the class representative and the
class he sought to represent. So far, the district courts outside
the Eleventh Circuit have not followed this holding, but the
analytical reasoning for refusing such awards is sound. Perhaps
even more interesting, the Eleventh Circuit held that binding
United States Supreme Court precedent required the disallowance of
the incentive award.
A Quick Primer on Fed. R. Civ. P. 23
Class actions are an exception to the general rule that a plaintiff
cannot prosecute the claim of another person. Federal Rule of Civil
Procedure 23 (and its state corollaries) are grounded in the
premise that when the claims of the named plaintiff are so similar
to the claims of numerous others who are not parties to the
litigation, the named plaintiff can be allowed to litigate not just
his claims but the claims of all other similarly situated people.
Let's put aside for this writing the debate over whether this
underlying premise is well-founded and focus instead on one
component of the analysis.
Rule 23(a) sets forth four "prerequisites" to class certification.
The plaintiff must establish the elements of numerosity,
commonality, typicality, and representativeness. Numerosity is
merely a question regarding the size of the class. The other three
prerequisites all look at the cohesion of the class, the
similarities in the claims, and the alignment of the proposed class
representative's interests with the interests of the class. It is
with regard to this last issue -- the alignment of interests --
where the granting of incentive awards undermines the class
process.
Rule 23(a)(4) requires that the class representative(s) must be
able to adequately represent the absent class members.
Specifically, it reads: "One or more members of a class may sue or
be sued as representative parties on behalf of all members only if
. . . the representative parties will fairly and adequately protect
the interests of the class." Fed. R. Civ. P. 23(a)(4).
The terms "fairly and adequately" are squishy terms that are
necessarily left open for interpretation. While the test may vary
slightly from circuit to circuit in the federal system, one point
holds true across the board: A class representative will not be
deemed to fairly and adequately represent the class when the class
representative has a conflict of interest with the class he seeks
to represent. This is a good, common sense requirement—the person
prosecuting the claim on behalf of the absent class members needs
to have their interests fully aligned with those class members; if
not, the class representative may be tempted to engage in
self-dealing.
The actual or potential conflict of interest between the class
representative and the class he seeks to represent has thwarted
many potential class actions. While the courts regularly and
routinely recognize this requirement and the pitfalls associated
with a class representative who has a conflict of interest, a blind
spot emerged—the class representative's incentive award.
The Incentive Award:
In the modern-era of class actions, it is routine for a court to
award the class representative an "incentive award" for serving as
class counsel. These incentive awards are typically viewed as
mundane and to some extent necessary for the class action system to
work. Usually the amount that any individual class member recovers
in a class action is minimal, and, as the Seventh Circuit
recognized, "only a lunatic or a fanatic sues for $30."
Accordingly, the interest of any one class member to sue to recover
his own alleged damages is low from the start, let alone attempting
to vindicate the rights of thousands of faceless strangers with
similar claims.
While the job of class representative is not necessarily an onerous
one, the class representative has responsibilities that will
consume considerable time -- answering written discovery, sitting
for a deposition, testifying at trial, etc. The generally accepted
view has been that it would only be "fair" to compensate the class
representative for his time (i.e., a little extra compensation for
his trouble; after all, the absent class members enjoy the fruits
of the class representative's labor).
When a case is taken through the class certification stage and
through trial, the granting of an incentive award arguably does not
in itself create a conflict of interest. From the filing of the
complaint through the final verdict, the class representative's and
the absent class members' fates were aligned. It is only after the
verdict is obtained that the class representative is treated
differently. But most class actions are not resolved by trial.
The conflict of interest problem arises when the parties attempt to
settle on a class-wide basis. The class representative is supposed
to protect the interests of the absent class members. But when the
class members are being offered little more than a coupon
settlement and the class representative is being offered an
incentive award of $1,000, has a conflict been created such that
the class representative can no longer fairly and adequately
represent the absent class members?
Until next time
In Part II, we will examine a recent federal appellate court
decision that answered this question in the affirmative, finding
that an incentive award does create a conflict. We will also
examine the implications of that case for defendants who are
seeking to settle a class action. [GN]
[*] Shook, Hardy & Bacon Attorneys Discuss Class Action Report
--------------------------------------------------------------
Mark Anstoetter, Esq., M. Katie Gates Calderon, Esq., Lindsey
Heinz, Esq. and James Muehlberger, Esq., of Shook, Hardy & Bacon
L.L.P., in an article for JDSupra, report that Shook Partner Cary
Silverman has authored a report exploring the rise in class actions
filed in New York, which, he explains, "is largely a result of
lawsuits targeting businesses that sell food and beverages." Class
Action Chaos: The Rise of Extortionate Consumer Class Action
Lawsuits in New York, created in partnership with the New York
Civil Justice Institute, details how "the percentage of class
action lawsuits targeting products that New Yorkers place in their
shopping carts, grab at a grocery store, or buy at a restaurant has
gone up."
"Lawsuits claiming that businesses mislead consumers in how they
labeled, marketed, or advertised food made up about one-third of
deceptive practices class actions in 2015. Now, these 'food court'
lawsuits account for about 60% of New York's consumer class actions
- exceeding deceptive practices claims against all other products
and services combined. Over 100 food class actions were filed in
New York in 2020 alone," Silverman explains. He breaks down which
types of claims have been increasing -- e.g., ingredient-based
claims such as lawsuits centered on the legitimacy of "vanilla"
appearing on a label -- and which types of filings have been
receding, such as excessive slack fill claims. Silverman goes on to
pick "contenders for the dubious distinction of being named among
the Top 10 most ridiculous consumer class actions filed in New
York," including lawsuits alleging consumers believe that Yumions
will contain real onions rather than onion powder or that
carrot-cake donuts will contain real carrots.
Silverman concludes by offering three steps to rein in abusive
litigation, including actions the New York legislature can pursue.
"Dubious consumer class actions are often settled or withdrawn
before reaching a ruling on a motion to dismiss or soon
thereafter," he notes. "Despite the cost, disruption, and risk,
businesses must be willing to fight back in court against meritless
claims. Otherwise, the sue, settle, and sue-again cycle will
continue unabated."
The report's conclusions have been amplified by coverage and
commentary in the New York Post, The Center Square and the New York
Daily News. Mike Durant, president and CEO of Food Industry
Alliance, told the Daily News that the report should be "required
reading for every lawmaker in New York." The editorial board of the
Post agreed with Silverman's conclusions, asserting, "Lawmakers
should be looking to rein in this kind of legal blackmail, not
encourage it. New York's small businesses have enough troubles as
it is."
FDA Launches Food Traceability Challenge
The U.S. Food and Drug Administration (FDA) has "launched a
challenge to spur the development of affordable, tech-enabled
traceability tools to help protect people and animals from
contaminated foods by enabling the rapid identification of their
sources and helping remove them from the marketplace as quickly as
possible." The agency has asked "food technology solution
providers, public health advocates, entrepreneurs and innovators
across the human and animal food supply chain to present food
traceability solutions that utilize economic models that are
affordable, with costs that are proportional to the benefits
received and can scale to encourage widespread adoption." FDA will
accept submissions until July 30, 2021, and will select up to 12
winners for the challenge. Winners "will have the opportunity to
present their work publicly in a webinar planned for September and
their videos will be posted for public viewing."
JBS Targeted by Cybercriminal Group
A Russian cybercriminal group known as a "ransomware as a service"
organization attacked JBS SA, the world's largest meat processor,
according to the FBI. The attack led several of the company's meat
processing plants to halt production for several days. While JBS is
"the largest food manufacturer yet to be hit by ransomware,"
according to the Associated Press, "at least 40 food companies have
been targeted by ransomware gangs over the last year." A
cybersecurity expert reportedly told the news outlet that food
companies are at "about the same level of security as manufacturing
and shipping. Which is to say, not very."
FDA Issues Compliance Guide on Aflatoxins
The U.S. Food and Drug Administration (FDA) has issued a compliance
policy guide on aflatoxins in human food. "Aflatoxins may occur in
food as a result of mold growth in susceptible raw agricultural
commodities," the guide explains. "The growth of molds that produce
aflatoxins is influenced by environmental factors such as
temperature, humidity, and extent of rainfall during the
pre-harvesting, harvesting, or post-harvesting periods. Foods most
susceptible to molds that produce aflatoxins include: peanuts,
corn, some tree nuts including Brazil nuts and pistachios, and some
small grains such as rice. Because aflatoxins are known carcinogens
to humans, the presence of aflatoxins in foods should be reduced to
the lowest levels attainable using modern agricultural and
processing techniques." FDA issued guides for aflatoxins in brazil
nuts, peanuts and peanut products, and pistachio nuts. [GN]
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