/raid1/www/Hosts/bankrupt/CAR_Public/210726.mbx
C L A S S A C T I O N R E P O R T E R
Monday, July 26, 2021, Vol. 23, No. 142
Headlines
360 DIGITECH: Bernstein Liebhard Reminds of Sept. 13 Deadline
360 DIGITECH: Howard G. Smith Law Reminds of Sept. 13 Deadline
360 DIGITECH: Rosen Law Firm Reminds of Sept. 13 Deadline
3M COMPANY: Bolin Alleges Injury From Exposure to Toxic AFFF
AERA ENERGY: Dickerson Files Suit in Cal. Super. Ct.
ALACER CORP: N.D. California Narrows Claims in Cimoli Consumer Suit
ALLIANCE PIPELINE: Appeals Class Cert. Ruling to 8th Circuit
AMEREN ILLINOIS: Rohl Sues Over Illegal Collection of Biometrics
AMERICAN FEDERATION: Lietch Files Writ of Certiorari to Supreme Ct.
AMERICAN FIRE: Spring House Appeals Judgment in Insurance Suit
ANHEUSER-BUSCH CO: Jackson Suit Seeks to Certify Two Classes
ATHIRA PHARMA: Faces Wang Suit Over Share Price Drop
ATHIRA PHARMA: Lieff Cabraser Reminds of August 24 Deadline
ATHIRA PHARMA: Schall Law Firm Reminds of Aug. 20 Deadline
AURORA CANNABIS: Judge Tosses Securities Class Action Lawsuit
BANK OF NEW YORK: Distribution of $72.5MM Deal in ADR FX Suit OK'd
BATTERIES PLUS: Faces Robocall Class Action Suit in Florida
BAYER AG: Set Aside $300M to Pay Farmers for 2015-20 Soybean Losses
BOARDWALK PIPELINES: Huggins Sues Over Inspectors' Unpaid OT Wages
BOMBAS LLC: Class Settlement Gets Preliminary Court Approval
BRENTLINGER ENT: Seeks to Extend Class Cert. Response to July 30
BROADCOM CORP: Faces Carolis Suit Over Failure to Pay Wages
BUFFALO EXCHANGE: Removes Detert Suit to Colorado District Court
BURGER MAKER INC: Blind Users Can't Access Web Site, Pascual Says
CALIFORNIA HEALTH: Ford Files Suit in Cal. Super. Ct.
CANADA: Immigration and Refugee Board to Review Racism Claims
CANADA: Military Sexual Misconduct Class Action Claims Up 170%
CARLOTZ INC: Faces Erdman Suit Over Drop in Share Price
CARLOTZ INC: Schall Law Firm Reminds of September 7 Deadline
CENTENO AC: Flores Seeks Manual Laborers' Unpaid Overtime Wages
CENTRAL SQUARE: Oklahoma Court Denies Doughty's Motion to Strike
CESAPHE: Faces Fraud, Breach of Contract Suit Over COVID-19 Refunds
CG CONSULTING: Partial Grant of Ousley's 3rd Amended Suit Endorsed
CHEMFAB ALKALIS: PFAS Contamination Class Action Pending
COINBASE GLOBAL: Faces Suit Over Misleading Sweepstakes Advertising
COLIN LEMAHIEU: Otto Class Action Voluntarily Dismissed
COLONIAL PIPELINE: Squire Patton Attorneys Discuss Class Action
CONCORD STATION: Faces Mallory FDCPA Suit in M.D. Florida
CRISP MARKETING: Appeals Ruling in Batista TCPA Suit to 11th Cir.
CVS HEALTH: Judge Expands Generic Drug Overcharging Class Action
DENTRUST DENTAL: Fails to Pay Proper Wages, Dehoyos Alleges
DETROIT, MI: Gross Pointe Park Families Join Flooding Class Suit
DIDI GLOBAL INC: Faces Espinal Suit Over Drop in Share Price
DIDI GLOBAL: Faces Franklin Suit Over Drop in Share Price
DOW CHEMICAL: Faces Suit in Cal. Linking Pesticide to Brain Damage
ENDO INTERNATIONAL: Seeks to Modify Class Certification Order
ENTERPRISE HOLDINGS: Quebec Court Authorizes Discrimination Suit
ERGATTA INC: Blind Users Can't Access Web Site, Pascual Says
FIRST IMPRESSION: Black Sues Over Unsolicited Prerecorded Calls
FORD MOTOR: Class Action Over Defective Shelby GT350 Can Proceed
FREE STATE: Court Approves $61K Class Settlement in Johnson Suit
FREQUENCY THERAPEUTICS: Bragar Eagel Reminds of Aug. 2 Deadline
FULL TRUCK: Schall Law Firm Reminds of September 10 Deadline
G.P. PROPERTY: Villa Seeks Minimum and OT Wages Under FLSA, NYLL
GABRIELLI TRUCK: Faces Almonte Class Suit in New York Supreme Ct.
GARRISON PROPERTY: Fortson Seeks to Certify Class Action
GERBER PRODUCTS: Faces Suit Over Toxic Metals in Baby Food Products
GINZA PTC: Faces Porter Suit for Wage Theft, FLSA Violations
GOOGLE LLC: Must Face Voice Assistant Privacy Class Action
GRANITE SERVICES: Seeks August 4 Response Time to Class Cert. Bid
HARTFORD CASUALTY: Chorak Appeals Insurance Suit Dismissal
HEALTH SCIENCES: Gluckstein Lawyers Commence Class Action Suit
HENRY GLOBAL: C.D. California Grants Bid to Dismiss Su Class Suit
HOPEBRIDGE LLC: Class Cert. Bid Must Be Filed by August 26, 2022
HP INC: Faces Barnert Suit Over Misleading Instant Ink Program
INMATE SERVICES: Seeks Filing Extension of Class Cert Transcript
INTUITIVE SURGICAL: Faces Suit Over Surgical Robot Monopoly
INVERSIONES EL ATICO: Fails to Pay Proper Wages, Hortua Alleges
JAMES RIVER: Glancy Prongay Reminds of September 7 Deadline
JENN'S ANGELS: Underpays Healthcare Workers, Franklin et al. Claim
JOHN ROE: Aug. 19 Data Breach Class Action Settlement Hearing Set
JPMORGAN CHASE: Lawyer Discusses Forex Rigging Class Action
KANZHUN LIMITED: Klein Law Firm Reminds of Sept. 10 Deadline
KANZHUN LIMITED: Wolf Haldenstein Reminds of Sept. 10 Deadline
KENSINGTON REDWOOD: Tolosa Suit Moved to N.D. California
KLEEN HARVEST: Ruiz Files Suit in Cal. Super. Ct.
KONINKLIJKE PHILIPS: Devices Contain PE-PUR Foam, Heilman Suit Says
LAPHAM-HICKEY STEEL: Fails to Pay Proper OT Wages, Rodriguez Says
LEWIS UNIVERSITY: Miller Appeals Tuition Refund Suit Dismissal
LOEWS HOLLYWOOD: Ogletree Deakins Attorneys Discuss Court Ruling
LOS ANGELES, CA: Court OKs Safaie's Bid for Class Certification
MATCH GROUP: D'Alessio Sues Over Deceptive Online Dating Service
MDL 2972: Blackbaud's Bid to Dismiss Data Breach Suit Denied
MDL 3014: Startner Seeks Consolidation of Actions in E.D. Pa.
MICRON TECHNOLOGY: Court Tosses DRAM Conspiracy Class Action
NEUTROGENA CORP: Deceived Sunscreen Product Consumers, Lavalle Says
NEW ENERGY: Robles Rael to Be Awarded Fee Under Settlement
NEW YORK, NY: Murray Seeks Case Discovery Analysts' Unpaid Overtime
NEWFOUNDLAND AND LABRADOR: Averts COVID-19 Class Action Cert.
NIELSEN HOLDINGS: MissPERS, et al. Seek to Certify Class Action
NK HOLDINGS: Faces Seavey Employment Suit in California State Ct.
NOARUS INVESTMENTS: Lerner Files TCPA Suit in C.D. California
OANDA CORP: Kalemba Appeals Class Certification Bid Denial
OCUGEN INC: Klein Law Firm Reminds of August 17 Deadline
ORPHAZYME A/S: Pomerantz Law Firm Reminds of Sept. 7 Deadline
OSCAR HEALTH: Faces Abitbol TCPA Suit in C.D. California
PINE CLUB: Church Amended Bid for Conditional Class Cert. Overruled
PINTEREST INC: Class Status Bid Filing Due March 10
POLK STATE: Faces Suit Over Student Fees During COVID-19
PPG EMPLOYEE: Jackson Lewis Attorneys Discuss Court Ruling
QUANTUM HEALTH: Deadline for Class Cert. Bid Filing Due Nov. 19
QUAPAW HOUSE: Court OK's Schatz Amended Bid for Class Certification
SANTANDER CONSUMER: Court Denies Bid to Remand Gallagher Class Suit
SCHOOLADVISOR LLC: Munoz Has Until Jan. 18 to File Class Status Bid
SCRIPPS HEALTH: Garren Sues Over Alleged Medical Data Breach
SHERIFF MIKE: Class Cert. Bid Filing Due Feb. 4, 2022
SIX FLAGS: Oct. 29 Class Action Settlement Fairness Hearing Set
SLSCO LTD: Vazquez Suit Seeks to Certify State Law Classes
SOULBOUND STUDIOS: Falls Suit Moved From C.D. Cal. to W.D. Wash.
SOULBOUND STUDIOS: Wrongfully Withheld Money, Falls Class Suit Says
STATE FARM: 6th Cir. Affirms Dismissal of Irvin's Bid for More Fees
STATE FARM: Jama's Bid for Class Certification Granted in Part
TRAVELERS CASUALTY: Faces Class Suit Over Stock Price Manipulation
TRIPOLIS ENTERPRISES: Fails to Pay Proper Wages, Gonzalez Alleges
UNITED STATES: Claims v. Federal Defendants in Chang Case Dismissed
UPS SUPPLY: Arbitration Denial in Jones Wage & Hour Suit Affirmed
URS MIDWEST: Crane Wins Initial Approval of $100K Class Settlement
VINO FARMS: Ibarra Files Suit in Cal. Super. Ct.
VISIONS FEDERAL: Class Cert. Bid Filing Due March 30, 2022
VOLKSWAGEN GROUP: Settles Class Action Over Q7 Squeaking Brakes
WALMART INC: Joint Bid for Amendment of Scheduling Order Tossed
WELLPET LLC: Berwind's Bid to Dismiss Loduca's Claims Granted
[*] Regulator Seeks Review of Risk Frameworks After Class Action
*********
360 DIGITECH: Bernstein Liebhard Reminds of Sept. 13 Deadline
-------------------------------------------------------------
Bernstein Liebhard, a nationally acclaimed investor rights law
firm, reminds investors of the deadline to file a Lead Plaintiff
motion in a securities class action lawsuit that has been filed on
behalf of investors who purchased or acquired the securities of 360
DigiTech, Inc. ('360 DigiTech' or the 'Company') (NASDAQ:QFIN) from
April 30, 2020 through July 7, 2021 (the "Class Period"). The
lawsuit filed in the United States District Court for the Southern
District of New York alleges violations of the Exchange Act of
1934.
If you purchased 360 DigiTech securities, and/or would like to
discuss your legal rights and options please visit 360 DigiTech
Shareholder Class Action Lawsuit or contact Noah Wiesner toll free
at (877) 779-1414 or nwiesner@bernlieb.com
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) the Company had been collecting
personal information in violation of relevant People's Republic of
China ("PRC") laws and regulations; (ii) accordingly, 360 DigiTech
was exposed to an increased risk of regulatory scrutiny and/or
enforcement action; and (iii) as a result, the Company's public
statements were materially false and misleading at all relevant
times.
On July 8, 2021, reports circulated on social media to the effect
that the Company's core product, the 360 IOU app, had been removed
from major app stores. The reports came on the heels of the removal
of other companies' apps as Chinese regulators investigated their
customer data protection practices.
On this news, 360 DigiTech's stock price fell $7.12 per share, or
21.48%, to close at $26.02 per share on July 8, 2021.
If you wish to serve as lead plaintiff, you must move the Court no
later than September 13, 2021. A lead plaintiff is a representative
party acting on behalf of other class members in directing the
litigation. Your ability to share in any recovery doesn't require
that you serve as lead plaintiff. If you choose to take no action,
you may remain an absent class member.
If you purchased 360 DigiTech securities, and/or would like to
discuss your legal rights and options please visit
https://www.bernlieb.com/cases/360digitech-qfin-shareholder-class-action-lawsuit-fraud-stock-414/apply/
or contact Noah Wiesner toll free at (877) 779-1414 or
nwiesner@bernlieb.com
Since 1993, Bernstein Liebhard LLP has recovered over $3.5 billion
for its clients. In addition to representing individual investors,
the Firm has been retained by some of the largest public and
private pension funds in the country to monitor their assets and
pursue litigation on their behalf. As a result of its success
litigating hundreds of lawsuits and class actions, the Firm has
been named to The National Law Journal's "Plaintiffs' Hot List"
thirteen times and listed in The Legal 500 for ten consecutive
years.
Contact Information:
Noah Wiesner
Bernstein Liebhard LLP
https://www.bernlieb.com
(877) 779-1414
Nwiesner@bernlieb.com [GN]
360 DIGITECH: Howard G. Smith Law Reminds of Sept. 13 Deadline
--------------------------------------------------------------
Law Offices of Howard G. Smith on July 15 disclosed that a class
action lawsuit has been filed on behalf of investors who purchased
360 DigiTech, Inc. ("360 DigiTech" or the "Company") (NASDAQ: QFIN)
securities between April 30, 2020 and July 7, 2021, inclusive (the
"Class Period"). 360 DigiTech investors have until September 13,
2021 to file a lead plaintiff motion.
Investors suffering losses on their 360 DigiTech investments are
encouraged to contact the Law Offices of Howard G. Smith to discuss
their legal rights in this class action at 888-638-4847 or by email
to howardsmith@howardsmithlaw.com.
On July 8, 2021, Seeking Alpha reported chatter on social media
that the Company's core product offering, the 360 IOU app, has been
removed from app stores.
On this news, the Company's share price fell $7.12, or 21%, to
close at $26.02 per share on July 8, 2021.
Then, on July 9, 2021, Seeking Alpha reported that 360 DigiTech
confirmed the removal of its 360 IOU app from the Android app store
and quoted a Company spokesperson, who disclosed that the Company
had "submitted a new rectification plan and stepped up the whole
process."
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) the Company
had been collecting personal information in violation of relevant
PRC laws and regulations; (2) accordingly, 360 DigiTech was exposed
to an increased risk of regulatory scrutiny and/or enforcement
action; and (3) 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 360 DigiTech 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 Howard G. Smith, Esquire,
of Law Offices of Howard G. Smith, 3070 Bristol Pike, Suite 112,
Bensalem, Pennsylvania 19020, by telephone at (215) 638-4847,
toll-free at (888) 638-4847, or by email to
howardsmith@howardsmithlaw.com, or visit our website at
www.howardsmithlaw.com.
This press release may be considered Attorney Advertising in some
jurisdictions under the applicable law and ethical rules.
Contacts:
Law Offices of Howard G. Smith
Howard G. Smith, Esquire
215-638-4847
888-638-4847
howardsmith@howardsmithlaw.com
www.howardsmithlaw.com [GN]
360 DIGITECH: Rosen Law Firm Reminds of Sept. 13 Deadline
---------------------------------------------------------
WHY: Rosen Law Firm, a global investor rights law firm, on July 14
announced the filing of a class action lawsuit on behalf of
purchasers of the securities of 360 DigiTech, Inc. (NASDAQ: QFIN)
between April 30, 2020 and July 7, 2021, inclusive (the "Class
Period"). A class action lawsuit has already been filed. If you
wish to serve as lead plaintiff, you must move the Court no later
than September 13, 2021.
SO WHAT: If you purchased 360 DigiTech securities during the Class
Period you may be entitled to compensation without payment of any
out of pocket fees or costs through a contingency fee arrangement.
WHAT TO DO NEXT: To join the 360 DigiTech class action, go to
http://www.rosenlegal.com/cases-register-2120.htmlor call Phillip
Kim, Esq. toll-free at 866-767-3653 or email pkim@rosenlegal.com or
cases@rosenlegal.com for information on the class action. A class
action lawsuit has already been filed. If you wish to serve as lead
plaintiff, you must move the Court no later than September 13,
2021. A lead plaintiff is a representative party acting on behalf
of other class members in directing the litigation.
WHY ROSEN LAW: We encourage investors to select qualified counsel
with a track record of success in leadership roles. Often, firms
issuing notices do not have comparable experience, resources or any
meaningful peer recognition. Be wise in selecting counsel. The
Rosen Law Firm represents investors throughout the globe,
concentrating its practice in securities class actions and
shareholder derivative litigation. Rosen Law Firm has achieved the
largest ever securities class action settlement against a Chinese
Company. Rosen Law Firm was Ranked No. 1 by ISS Securities Class
Action Services for number of securities class action settlements
in 2017. The firm has been ranked in the top 4 each year since 2013
and has recovered hundreds of millions of dollars for investors. In
2019 alone the firm secured over $438 million for investors. In
2020, founding partner Laurence Rosen was named by law360 as a
Titan of Plaintiffs' Bar. Many of the firm's attorneys have been
recognized by Lawdragon and Super Lawyers.
DETAILS OF THE CASE: According to the lawsuit, defendants
throughout the Class Period made false and/or misleading statements
and/or failed to disclose that: (1) the Company had been collecting
personal information in violation of relevant People's Republic of
China ("PRC") laws and regulations; (2) accordingly, 360 DigiTech
was exposed to an increased risk of regulatory scrutiny and/or
enforcement action; and (3) as a result, the Company's public
statements were materially false and misleading at all relevant
times. When the true details entered the market, the lawsuit claims
that investors suffered damages.
To join the 360 DigiTech class action, go to
http://www.rosenlegal.com/cases-register-2120.htmlor call Phillip
Kim, Esq. toll-free at 866-767-3653 or email pkim@rosenlegal.com or
cases@rosenlegal.com for information on the class action.
No Class Has Been Certified. Until a class is certified, you are
not represented by counsel unless you retain one. You may select
counsel of your choice. You may also remain an absent class member
and do nothing at this point. An investor's ability to share in any
potential future recovery is not dependent upon serving as lead
plaintiff.
Attorney Advertising. Prior results do not guarantee a similar
outcome.
CONTACT: Laurence Rosen, Esq.
Phillip Kim, Esq.
The Rosen Law Firm, P.A.
275 Madison Avenue, 40th Floor
New York, NY 10016
Tel: (212) 686-1060
Toll Free: (866) 767-3653
Fax: (212) 202-3827
lrosen@rosenlegal.com
pkim@rosenlegal.com
cases@rosenlegal.com
www.rosenlegal.com [GN]
3M COMPANY: Bolin Alleges Injury From Exposure to Toxic AFFF
------------------------------------------------------------
LEON BOLIN v. 3M COMPANY (f/k/a Minnesota Mining and Manufacturing
Company), BUCKEYE FIRE EQUIPMENT COMPANY, CHEMGUARD, INC., CHEMOURS
COMPANY FC, LLC, CHUBB FIRE, LTD., CORTEVA, 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,
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-01992-RMG (D.S.C., July 6,
2021) seeks damages for personal injury sustained by the Plaintiff
and others similarly situated resulting from exposure to aqueous
film-forming foams containing the toxic chemicals collectively
known as per and polyfluoroalkyl substances.
AFFF is a specialized substance designed to extinguish
petroleum-based fires. AFFF has been used for decades by military
and civilian firefighters to extinguish fires in training and in
response to Class B fires.
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.
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. PFAS includes perfluorooctanoic acid ("PFOA") and
perfluorooctane sulfonic acid ("PFOS") and related chemicals,
including those that degrade to PFOA and/or PFOS. The Defendants
knew, or should have known, that PFAS remain in the human body
while presenting significant health risks to humans, the suit
contends.
The Plaintiff seeks to recover compensatory and punitive damages
arising out of the permanent and significant damages sustained as a
direct result of exposure to the Defendants' AFFF products at
various locations during the course of the Plaintiff's training and
firefighting activities.
The Bolin case has been consolidated in MDL No. 2873, In Re:
Aqueous Film-Forming Foams Products Liability Litigation. The case
is assigned to the Hon. Judge Richard Gergel.
3M Company is an American multinational conglomerate corporation
operating in the fields of industry, worker safety, U.S. health
care, and consumer goods.[BN]
The Plaintiff is represented by:
Gregory A. Cade, Esq.
Gary A. Anderson, Esq.
Kevin B. McKie, Esq.
ENVIRONMENTAL LITIGATION GROUP, P.C.
2160 Highland Avenue South
Birmingham, AL 35205
Telephone: (205) 328-9200
Facsimile: (205) 328-9456
E-mail: gregc@elglaw.com
AERA ENERGY: Dickerson Files Suit in Cal. Super. Ct.
----------------------------------------------------
A class action lawsuit has been filed against AERA ENERGY, LLC. The
case is styled as Aaron Dickerson, as an individual and on behalf
of all others similarly situated v. AERA ENERGY, LLC, a California
Limited Liability Company, Case No. BCV-21-101646 (Cal. Super. Ct.,
Kern Cty., July 20, 2021).
The case type is stated as "Other Employment - Civil Unlimited."
Aera -- https://www.aeraenergy.com/ -- is proud to call California
home, with operations in Kern County--one of the largest
oil-producing regions in the country.[BN]
The Plaintiff is represented by:
Brett S. Sutton, Esq.
SUTTON HAGUE LAW CORPORATION
5200 N Palm Ave., Ste. 203
Fresno, CA 93704-2225
Phone: 559-325-0500
Fax: 559-981-1217
Email: brett@suttonhague.com
ALACER CORP: N.D. California Narrows Claims in Cimoli Consumer Suit
-------------------------------------------------------------------
The U.S. District Court for the Northern District of California,
San Jose Division, issued an order granting in part and denying in
part the Defendant's motion to dismiss the lawsuit entitled JEFFREY
CIMOLI, on behalf of himself and all others similarly situated,
Plaintiff v. ALACER CORP., Defendant, Case No. 5:20-cv-07838-BLF
(N.D. Cal.).
Plaintiff Jeffrey Cimoli brings this putative consumer class action
against Defendant Alacer Corp. The Plaintiff asserts eight causes
of action against the Defendant for allegedly misleading labels on
two of the Defendant's products.
Before the Court is Defendant's motion to dismiss the Plaintiff's
complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and
12(b)(6). The Court heard oral argument on the Defendant's motion
on June 3, 2021. For the reasons stated on the record at the
hearing and discussed in this Order, the Defendant's motion is
granted in part with leave to amend and denied in part.
Background
The Plaintiff is an individual consumer and a citizen of
California, currently residing in San Jose. The Defendant is a
California corporation with its principal place of business in
Carlisle, Pennsylvania. The Defendant sells Emergen-C brand
products, including several varieties of Emergen-C brand Immune
Support Gummies.
The Plaintiff's complaint centers on two of these Immune Support
Gummies: a Vitamin C supplement product ("Vitamin C Gummies") and
an Elderberry supplement product ("Elderberry Gummies"). The front
label of the Vitamin C Gummies represents that the product contains
750 mg of Vitamin C. The front label of the Elderberry Gummies
represents that the product is "crafted with 50 mg of elderberry
juice concentrate." The Defendant sells these products nationwide.
In June 2020, the Plaintiff purchased the Vitamin C Gummies from a
Target in San Jose, California. When the Plaintiff purchased the
Vitamin C Gummies, he allegedly relied on the dosage information
provided on the Vitamin C Gummies' front label, which reads "750 mg
of Vitamin C" and "45 Gummies." The Plaintiff alleges that he
believed the Vitamin C Gummies product contained 45 Gummies, each
of which contained 750 mg of Vitamin C. He further claims he would
not have purchased the Vitamin C Gummies or would have paid less
for the Vitamin C Gummies had he not been misled by the front
label.
Though the Plaintiff has not purchased the Elderberry Gummies, he
claims that the label misleads consumers in the same manner as the
label of the Vitamin C Gummies. The Plaintiff's primary theory of
liability is that "a reasonable consumer understands the
representations on the front of the Products to mean that each
Gummy will contain 750 mg of Vitamin C or 50 mg of elderberry juice
concentrate."
The Plaintiff proposes a nationwide class of consumers, who
purchased the Defendant's Gummies along with a "California
Subclass" and a "California Consumer Subclass." The Nationwide
Class includes "all persons in the United States who, within the
relevant statute of limitations period, purchased any of the
Products." The California Subclass includes "all persons who,
within the relevant statute of limitations period, purchased any of
the Products in the state of California." The California Consumer
Subclass includes those who purchased the Products for "personal,
family, or household purposes in the state of California."
The Plaintiff filed this action on Nov. 5, 2020, asserting eight
causes of action: (1) violation of California's Unfair Competition
Law ("UCL") (on behalf of the California Class); (2) violation of
California's Consumers Legal Remedies Act ("CLRA"), (on behalf of
the California Consumer Subclass); (3) violation of California's
False Advertising Law ("FAL"), (on behalf of the California Class);
(4) breach of express warranty (on behalf of the California Class);
(5) breach of implied warranty (on behalf of the California Class);
(6) unjust enrichment/quasi-contract (on behalf of the California
Class); (7) common law fraud (on behalf of the California Class);
and (8) violation of Pennsylvania's Unfair Trade Practices and
Consumer Protection Law ("UTPCPL") (on behalf of the Nationwide
Class).
Discussion
The Defendant moves to dismiss on multiple grounds. First, the
Defendant argues the Plaintiff's claims are governed by California
law and, therefore, the Plaintiff cannot advance a claim for
violation of the UTPCPL on behalf of the nationwide class. Second,
the Defendant argues that the Plaintiff's FAL, CLRA, UCL, and
common law fraud claims should be dismissed for failure to allege
an actionable misrepresentation.
Third, the Defendant argues that the Plaintiff's breach of express
and implied warranty claims must fail because the Plaintiff does
not allege facts to establish an affirmation of fact or promise
that each Products' dosage is per gummy. The Defendant also asserts
that the Plaintiff's implied warranty claims fail because of
California's privity requirement.
Fourth, the Defendant claims the Plaintiff lacks standing to pursue
injunctive relief under California's consumer protection statutes.
Finally, the Defendant contends the Court should strike purchasers
of the Elderberry Gummies from the putative classes for lack of
standing.
The Plaintiff brings Count VIII against the Defendant for a
violation of Pennsylvania's UTPCPL. As an initial matter, the Court
finds that the UTPCL may apply extraterritorially. In Danganan v.
Guardian Protection Services, the Pennsylvania Supreme Court, on
certification from the Third Circuit, considered whether "a
non-resident may bring a UTPCPL claim against a Pennsylvania
business premised on an out-of-state transaction."
Like the parties in Danganan, the Plaintiff, a California resident,
has brought a UTPCPL claim against the Defendant, a
Pennsylvania-based corporation, for a transaction that took place
outside of Pennsylvania, District Judge Beth Labson Freeman notes.
However, unlike in Danganan, the parties here did not contractually
agree to the application of any particular state's law, Judge
Freeman finds. The Court, thus, concludes that while that UTCPL may
apply to the transaction alleged in the complaint, this application
is nonetheless limited by choice-of-law rules.
The remaining issues before the Court are whether a Plaintiff may
advance consumer fraud claims under two different state's laws and,
if not, which state's law should be applied under choice-of-law
rules. The Court will consider these issues in light of the
Plaintiff's best pleading. The Court defers ruling on the
Plaintiff's UTPCPL claim until the fully amended pleading can be
reviewed.
The Plaintiff brings four fraud-based claims: (1) violation of the
UCL, (2) violation of CLRA, (3) violation of the FAL, and (4)
common law fraud. The Defendant argues that the Plaintiff's UCL,
CLRA, FAL, and common law fraud claims should be dismissed because
the misrepresentations alleged are not likely to deceive a
reasonable consumer.
The Court agrees with the Plaintiff. In Walters v. Vitamin Shoppe
Industries, the Ninth Circuit held that a plaintiff "did not have a
duty to validate claims on the front of a product's label by
cross-checking them against information contained in small print on
the back." The plaintiff alleged that products sold by the
defendant carried misleading labels because they displayed dosage
information per serving rather than per unit, see Walters v.
Vitamin Shoppe Indus., Inc., No. 3:14-CV-01173-PK, 2015 WL 3916972,
at *2 (D. Or. June 25, 2015) ("Walters I").
In Walters I, the district court dismissed the plaintiff's fraud
claim because the product included clarifying information in the
supplemental facts section located in small print on the products'
back panel. The Ninth Circuit reversed, explaining that "consumers
review the small print on a product's label to learn additional
details about a product, not to correct potentially misleading
representations found on the front," Walters II, 701 F. App'x at
670 (citing Williams, 552 F.3d at 939-40).
Following the Ninth Circuit's guidance in Walters II, the Court
finds that the Plaintiff has properly alleged an actionable
misrepresentation.
Therefore, the Court denies the Defendant's motion to dismiss
Plaintiff's CLRA, FAL, UCL, and common law fraud claims.
The Defendant also moves to dismiss the Plaintiff's unjust
enrichment claim, arguing that it rises and falls alongside the
Plaintiff's underlying fraud-based claims. The Court agrees, and
the parties do not argue otherwise.
Because the Court has denied the Defendant's motion as to the
Plaintiff's CLRA, FAL, UCL and common law fraud claims, the Court
necessarily denies the Defendant's motion to dismiss the
Plaintiff's unjust enrichment claim.
The Defendant also moves to dismiss the Plaintiff's implied
warranty claim, arguing that it rises and falls with the
Plaintiff's express warranty claim. The Court agrees. Because the
Court has found that the Plaintiff has not pled an affirmation of
fact or promise that the dosage representations are per gummy, the
Plaintiff's implied warranty claim fails.
Accordingly, the Court dismisses with leave to amend the
Plaintiff's breach of express and implied warranty claims. Although
it is not clear that any amendment could cure these deficiencies,
the Court will allow the Plaintiff the opportunity to amend.
The Plaintiff also seeks injunctive relief in connection with his
UCL and CLRA claims. The Defendant challenges whether the Plaintiff
has Article III standing to seek injunctive relief in connection
with these claims. In particular, the Defendant argues that
Plaintiff fails to show "a sufficient likelihood that he will again
be wronged in a similar way" (quoting City of L.A. v. Lyons, 461
U.S. 95, 111 (1983)). The Court agrees.
Because the Plaintiff knows that he can determine the Products'
dosages by consulting the back labels, he cannot plausibly allege
that he faces a real or immediate threat of similar, future harm,
Judge Freeman opines. Accordingly, the Defendant's motion to
dismiss Plaintiff's request for injunctive relief is granted.
The Defendant argues that the Plaintiff lacks standing to pursue
claims on behalf of purchasers of the Elderberry Gummies--which he
himself has not purchased--because the Products are not
substantially similar.
The Court finds that the Plaintiff has standing to bring claims on
behalf of purchasers of the Elderberry Gummies because such
consumers may be deceived in the same manner, and thus face the
same injury, as the Plaintiff was when he purchased Vitamin C
Gummies. The Defendant's motion to strike the claims related to the
Elderberry Gummies is denied.
Order
For these reasons, the Court grants in part and denies in part the
Defendant's motion with leave to amend. The Plaintiff will file an
amended complaint no later than August 2, 2021. No new claims or
parties may be added without leave of Court.
A full-text copy of the Court's Order dated July 1, 2021, is
available at https://tinyurl.com/rcevkrvr from Leagle.com.
ALLIANCE PIPELINE: Appeals Class Cert. Ruling to 8th Circuit
------------------------------------------------------------
Defendant Alliance Pipeline L.P. filed an appeal from a court
ruling entered in the lawsuit styled H & T Fair Hills, Ltd., Norman
Zimmerman, Donna Zimmerman, Steven Wherry, Valerie Wherry, Robert
Ruebel, Mary Ruebel, Larry Ruebel, Mark Hein, Debra Hein, and
Nicholas Hein on behalf of themselves and all others similarly
situated, v. Alliance Pipeline L.P. a/k/a Alliance USA, Case No.
0:19-cv-01095-JNE, in the U.S. District Court for the District of
Minnesota.
As reported in the Class Action Reporter on June 28, 2021, the Hon.
Judge Joan N. Ericksen entered an order:
1. certifying the following class under Rule 23(b)(3) for the
breach of contract claim and Rule 23(b)(2) for the
declaratory judgment claim:
"All persons or entities who held or hold a land interest on
Defendant's Pipeline Right of Way and who, since 2014, were
or are eligible for crop loss compensation pursuant to
Easements or Agricultural Impact Mitigation Agreements."
2. appointing Nicholas Hein, Mark Hein, Robert Ruebel, Steven
Wherry, and Norman Zimmerman as class representatives;
3. declining to appoint the other proposed representatives.
4. appointing Hellmuth & Johnson, PLLC and Ball & McCann,
P.C. as class counsel.
5. directing the parties to provide notice of the pendency of
this action as required by Fed. R. Civ. P. 23(c)(2); and
6. denying the Defendant's Motion to Strike.
The Court said, "The Defendant argues that the proposed class here
is not cohesive because of issues related to identifying class
members, proving causation related to crop loss, and calculating
damages. The Plaintiffs argue that a declaratory judgment is
essential to confirm the Defendant's obligations under the
easements and AIMAs. Here, Plaintiffs have satisfied Rule
23(b)(2).
Determining what obligations flow from the contracts and whether
the Defendant's program termination letter breached the obligation
to pay for crop losses are questions well-suited to resolution on a
class-wide basis. Although the Court dismissed the Plaintiffs'
request for an injunction to restore the crop loss program, a
declaratory judgment would be useful to clarify whether Defendant
has an ongoing obligation to pay for crop loss."
Agricultural landowners brought this case against Alliance Pipeline
for its alleged failure to compensate them for crop losses caused
by a pipeline it built through their properties. Prior to
construction, Defendant agreed to compensate these farmers for
pipeline-related crop losses. Defendant met this obligation by
creating a crop loss program that compensated landowners and
tenants for lower crop yields on the pipeline right of way. In
2015, the Defendant ended this program and, in 2019, Plaintiffs
sued.
The Court dismissed Plaintiffs' claim for fraudulent inducement and
claims for breach of contract and nuisance that accrued outside the
statute of limitations. Seeking to represent other agricultural
landowners and tenant farmers, the Plaintiffs moved under Federal
Rule of Civil Procedure 23 to certify a class for their breach of
contract and declaratory judgment claims.
The Defendant now seeks a review of the Class Certification order
entered by Judge Ericksen.
The appellate case is captioned as H&T Fair Hills, Ltd., et al. v.
Alliance Pipeline L.P., Case No. 21-8006, in the United States
Court of Appeals for the Eighth Circuit, filed on July 2,
2021.[BN]
Defendant-Petitioner Alliance Pipeline L.P., also known as Alliance
USA, is represented by:
Samuel Andre, Esq.
Aron J. Frakes, Esq.
Patrick D.J. Mahlberg, Esq.
Nicole M. Moen, Esq.
Haley Waller Pitts, Esq.
FREDRIKSON & BYRON
200 S. Sixth Street, Suite 4000
Minneapolis, MN 55402-1425
Telephone: (612) 492-7000
E-mail: sandre@fredlaw.com
nmoen@fredlaw.com
hwallerpitts@fredlaw.com
Plaintiffs-Respondents H&T Fair Hills, Ltd., on behalf of
themselves and all others similarly situated; Norman Zimmerman, on
behalf of themselves and all others similarly situated; Donna
Zimmerman, on behalf of themselves and all others similarly
situated; Steven Wherry, on behalf of themselves and all others
similarly situated; Valerie Wherry; Robert Ruebel; Mary Ruebel, on
behalf of themselves and all others similarly situated; Larry
Ruebel, on behalf of themselves and all others similarly situated;
Mark Hein, on behalf of themselves and all others similarly
situated; Debra Hein, on behalf of themselves and all others
similarly situated; and Nicholas Hein, on behalf of themselves and
all others similarly situated, are represented by:
Drew R. Ball, Esq.
Steve McCann, Esq.
BALL & MCCANN
161 N. Clark Street, Suite 1600
Chicago, IL 60601
Telephone: (872) 205-6556
E-mail: drew@ballmccannlaw.com
steve@ballmccannlaw.com
- and -
Michael R. Cashman, Esq.
Richard M. Hagstrom, Esq.
Brian W. Nelson, Esq.
Anne T. Regan, Esq.
HELLMUTH & JOHNSON
8050 W. 78th Street
Edina, MN 55439
Telephone: (952) 941-4005
E-mail: mcashman@hjlawfirm.com
rhagstrom@hjlawfirm.com
bwnelson@hjlawfirm.com
aregan@hjlawfirm.com
- and -
Gregory Otsuka, Esq.
PAUL & HASTINGS
191 N. Wacker Drive
Chicago, IL 60606
Telephone: (312) 499-6000
AMEREN ILLINOIS: Rohl Sues Over Illegal Collection of Biometrics
----------------------------------------------------------------
LEIGH ANN ROHL, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY
SITUATED v. AMEREN ILLINOIS, Case No. 2021CH03283 (Ill. Cir., Cook
Cty., July 6, 2021) is a class action complaint against Ameren to
stop Defendant's unlawful collection, use, and storage of the
Plaintiff's and the proposed Class' sensitive, private, and
personal biometric data.
According to the complaint, Ameren is a company that uses
individual identification through biometric authentication. Ameren
achieves this accomplishment through capturing biometric data for
voice recognition software. Ameren has failed -- and continues to
fail -- to follow Illinois' Biometric Information Privacy Act, 740
ILCS 14/1, et seq. This failure is of great concern to Plaintiff
because it exposes Plaintiff to serious and irreversible privacy
risks, the suit alleges.
Plaintiff Leigh Ann Rohl is an individual citizen of the State of
Illinois.
Defendant Ameren is an American power company headquartered in St.
Louis, Missouri.[BN]
The Plaintiff is represented by:
Brandon M. Wise, Esq.
PEIFFER WOLF CARR
KANE & CONWAY, LLP
818 Lafayette Ave., Floor 2
St. Louis, MO 63104
Telephone: (314) 833-4825
E-mail: bwise@peifferwolf.com
- and -
Aaron Siri, Esq.
Mason Barney, Esq.
SIRI & GLIMSTAD LLP
200 Park Avenue, 17th Floor
New York, NY 10166
Telephone: (212) 532-1091
E-mail: aaron@sirillp.com
mbarney@sirillp.com
AMERICAN FEDERATION: Lietch Files Writ of Certiorari to Supreme Ct.
-------------------------------------------------------------------
Plaintiff BLAKE LIETCH, et al., filed with the Supreme Court of
United States a petition for a writ of certiorari in the matter
styled LIETCH, et al. v. COUNCIL 31 OF THE AMERICAN FEDERATION OF
STATE, COUNTY AND MUNICIPAL EMPLOYEES, AFL-CIO, Case No. 21-29.
Response is due on August 9, 2021.
The Plaintiff petitions for a writ of certiorari to review the
judgment of the United States Court of Appeals for the Seventh
Circuit in the case titled BLAKE LIETCH, et al.,
Plaintiffs-Appellants v. COUNCIL 31 OF THE AMERICAN FEDERATION OF
STATE, COUNTY AND MUNICIPAL EMPLOYEES, AFL-CIO, Defendant-Appellee,
Case No. 20-1379. The Court of Appeals granted Appellee's JOINT
MOTION FOR SUMMARY AFFIRMANCE and the judgment of the district
court was summarily AFFIRMED.
According to the complaint, the Plaintiffs, individually and on
behalf of all agency fee-payers as a class whose money was taken by
American Federation of State, County and Municipal Employees,
Council 31, AFL-CIO, sue for the return of their money under 42
U.S.C. Section 1983, because these seizures were made under color
of state law. They seek compensatory damages from the union for its
violation of their rights under the First and Fourteenth Amendments
of the United State Constitution.[BN]
Plaintiffs-Appellants-Petitioners Blake Lietch, et al., are
represented by:
Jeffrey Michael Schwab, Esq.
LIBERTY JUSTICE CENTER
208 South LaSalle Street, Suite 1690
Chicago, IL 60604
E-mail: jschwab@libertyjusticecenter.org
AMERICAN FIRE: Spring House Appeals Judgment in Insurance Suit
--------------------------------------------------------------
Plaintiff Spring House Tavern Inc. filed an appeal from a court
ruling entered in the lawsuit styled Spring House Tavern, Inc.,
individually and on behalf of a class of similarly situated
persons, Plaintiff v. American Fire and Casualty Company,
Defendant, Case No. 2-20-cv-02872, in the United States District
Court for the Eastern District of Pennsylvania.
As reported in the Class Action Reporter on June 23, 2021, U.S.
District Judge John R. Padova granted judgment on the pleadings to
American Fire and Casualty Co., rejecting policyholder Spring House
Tavern's argument that its mere loss of use of its property due to
pandemic-related shutdown orders triggered coverage. The judge
emphasized that Spring House didn't claim the COVID-19 virus was on
its premises.
"The complaint in this case does not allege that any amount of the
COVID-19 virus was, itself, present in plaintiff's property, or
that some amount of the COVID-19 virus itself made plaintiff's
property 'physically unusable,'" the judge said, adding that, even
if Spring House had included such allegations, coverage would be
foreclosed by a virus exclusion in its policy.
Although the policy covers government closure orders due to food
contamination from a "communicable disease," the tavern's complaint
never alleged that its food stock was contaminated with any harmful
substance.
According to the suit, Spring House of Ambler, Pennsylvania, said
it was forced to close business and furlough employees due to the
pandemic and government closure orders. The restaurant held a
policy with American Fire which provides business income,
contamination and civil authority coverage. It sued American Fire
after the insurer denied coverage, seeking a declaration that the
policy covers its COVID-19-related losses.
The carrier has maintained that Spring House failed to allege
property loss or damage, but the tavern has argued that the meaning
of "direct physical loss of or damage to property" includes "loss
of use" of property, so it does not need to allege physical harm to
get coverage.
The Plaintiff now seeks a review of the judgment entered by Judge
Padova in favor of American Fire.
The appellate case is captioned as Spring House Tavern Inc v.
American Fire and Casualty Co., Case No. 21-2221, in the United
States Court of Appeals for the Third Circuit, filed on June 28,
2021.[BN]
Plaintiff-Appellant SPRING HOUSE TAVERN INC, INDIVIDUALLY AND ON
BEHALF OF A CLASS OF SIMILARLY SITUATED PERSONS, is represented
by:
Scott B. Cooper, Esq.
SCHMIDT KRAMER
209 State Street
Harrisburg, PA 17101
Telephone: (717) 232-6300
E-mail: scooper@schmidtkramer.com
- and -
James C. Haggerty, Esq.
HAGGERTY GOLDBERG SCHLEIFER & KUPERSMITH
1835 Market Street, Suite 2700
Philadelphia, PA 19103
Telephone: (267) 350-6609
E-mail: jhaggerty@hgsklawyers.com
- and -
Jonathan Shub, Esq.
SHUB LAW
134 Kings Highway East, 2nd Floor
Haddonfield, NJ 08033
Telephone: (856) 772-7200
E-mail: ecf@shublawyers.com
Defendant-Appellee AMERICAN FIRE AND CASUALTY CO. is represented
by:
Matthew M. Burke, Esq.
ROBINS KAPLAN
800 Boylston Street, Suite 2500
Boston, MA 02199
Telephone: (612) 349-8500
- and -
Robert F. Cossolini, Esq.
Christopher S. Finazzo, Esq.
Robert J. Pansulla, Esq.
FINAZZO COSSOLINI O'LEARY MEOLA & HAGER
67 East Park Place, Suite 901
Morristown, NJ 07960
Telephone: (973) 343-4960
E-mail: robert.cossolini@finazzolaw.com
christopher.finazzo@finazzolaw.com
robert.pansulla@finazzolaw.com
- and -
Cari K. Dawson, Esq.
ALSTON & BIRD
1201 West Peachtree Street
One Atlantic Center, Suite 4900
Atlanta, GA 30309
Telephone: (404) 881-7766
E-mail: cari.dawson@alston.com
- and -
Kenneth A. Murphy, Esq.
Eileen M. Somers, Esq.
FAEGRE DRINKER BIDDLE & REATH
One Logan Square, Suite 2000
Philadelphia, PA 19103
Telephone: (215) 988-2837
E-mail: kenneth.murphy@faegredrinker.com
eileen.somers@dbr.com
ANHEUSER-BUSCH CO: Jackson Suit Seeks to Certify Two Classes
------------------------------------------------------------
In the class action lawsuit captioned as BYRON JACKSON and MARIO
MENA, JR., v. ANHEUSER-BUSCH COMPANIES, LLC, MIAMI BEER VENTURES,
LLC, Case No. 1:20-cv-23392-BB (S.D. Fla.), the Plaintiffs ask the
Court to enter an order:
1. certifying two classes, defined as follows:
Brewery Purchaser Class
"All consumers who have purchased Veza Sur beer at the
Veza Sur brewery since August 14, 2016;" and
Retail Purchaser Class
"All consumers who have purchased Veza Sur beer at a
retail location in Florida since August 14, 2016;"
2. appointing the Plaintiff Jackson and Plaintiff Mena as
class representatives; and
3. appointing Plaintiffs' counsel as Class Counsel.
The Plaintiffs, on behalf of themselves and all other
similarly-situated consumers, have sued the Defendants
Anheuser-Busch and Miami Beer Ventures based on the Defendants'
alleged misrepresentations regarding their products. Defendants
make Veza Sur beer, which they market as an authentic and
locally-owned "craft" beer with "Latin roots" that is local to and
made in Miami. The Plaintiffs allege that the Defendants
misrepresent the authenticity and ownership of Veza Sur, deceiving
consumers into paying a premium price for products they believe to
be made in Miami by an authentic locally-owned craft brewery, while
Veza Sur is actually a subsidiary of the world's largest brewer
whose ownership is disguised in order to benefit from the higher
quality and price expectations set by authentic locally-owned craft
breweries. In fact, many of Defendant's products are not, as
advertised, made in Miami.
Anheuser-Busch is an American brewing company headquartered in St.
Louis, Missouri. Since 2008, it has been a wholly owned subsidiary
of Anheuser-Busch InBev which also has its North American regional
management headquarters in St. Louis.
A copy of the Plaintiffs' motion to certify classes dated July 15,
2021 is available from PacerMonitor.com at https://bit.ly/2UErEsO
at no extra charge.[CC]
The Plaintiffs are represented by:
Joshua H. Lida, Esq.
Terra L. Sickler, Esq.
Morgan L. Weinstein, Esq.
TWIG, TRADE, & TRIBUNAL, PLLC
1512 E Broward Blvd, Suite 204A
Fort Lauderdale, FL 33301
Telephone: (954)-472-5001
Facsimile: (888)-444-7087
E-mail: service@twiglaw.com
josh@twiglaw.com
tsickler@twiglaw.com
morgan@twiglaw.com
- and -
Gus M. Centrone, Esq.
Katherine Earle Yanes, Esq.
KYNES, MARKMAN & FELMAN, P.A.
P.O. Box 3396
Tampa, FL 33601-3396
Telephone: (813) 229-1118
Facsimile: (813) 221-6750
E-mail: gcentrone@kmf-law.com
kyanes@kmf-law.com
ATHIRA PHARMA: Faces Wang Suit Over Share Price Drop
----------------------------------------------------
FAN WANG and HANG GAO, Individually and on Behalf of All Others
Similarly Situated, Plaintiff v. ATHIRA PHARMA, INC., a Delaware
Corporation, and LEEN KAWAS, Defendants, Case No. 2:21-cv-00861
(W.D. Wash., June 25, 2021) is a federal securities class action on
behalf of all investors who purchased or otherwise acquired Athira
Pharma, Inc. securities between September 18, 2020 and June 17,
2021, inclusive (the Class Period), seeking to pursue remedies
under Sections 10(b) and 20(a) of the Securities Exchange Act.
According to the complaint, throughout the class period, the
Defendants made materially false and misleading statements and
omitted to material adverse facts regarding the Company's business.
Specifically, Defendants failed to disclose to investors: (1) that
the research conducted by Leen Kawas, Athira's president and chief
executive officer, which formed the foundation for the Company's
product candidates and intellectual property, was tainted by Kawas'
scientific misconduct, including the manipulation of key data; and
(2) that, as a result of the foregoing, Defendants' positive
statements about the Company's business, operations, and prospects
were materially misleading and omitted material facts necessary in
order to make the statements made not misleading.
On this news, Athira's stock price allegedly fell $7.09 per share,
or nearly 39%, to close at $11.15 per share on June 18, 2021, on
unusually heavy trading volume.
Plaintiffs Fan Wang and Hang Gao acquired and held shares of Athira
at artificially inflated prices during the class period.
Athira is a clinical-stage biopharmaceutical company focused on
developing small molecules to restore neuronal health and stop
neurodegeneration for those suffering from devastating neurological
diseases, including Alzheimer's disease.[BN]
The Plaintiffs are represented by:
Kim D. Stephens, Esq.
Cecily C. Shiel, Esq.
TOUSLEY BRAIN STEPHENS PLLC
1700 Seventh Avenue, Suite 2200
Seattle, WA 98101
Telephone: (206) 682-5600
Facsimile: (206) 682-2992
E-mail: kstephens@tousley.com
cshiel@tousley.com
- and -
Jeffrey C. Block, Esq.
Jacob A. Walker, Esq.
Nathaniel Silver, Esq.
BLOCK & LEVITON LLP
260 Franklin Street, Suite 1860
Boston, MA 02110
Telephone: (617) 398-5600
Facsimile: (617) 507-6020
E-mail: jeff@blockleviton.com
jake@blockleviton.com
nate@blockleviton.com
ATHIRA PHARMA: Lieff Cabraser Reminds of August 24 Deadline
-----------------------------------------------------------
The law firm of Lieff Cabraser Heimann & Bernstein, LLP on July 17
disclosed that class action litigation has been filed on behalf of
investors who purchased or otherwise acquired the securities of
Athira Pharma Inc. ("Athira" or the "Company") (Nasdaq: ATHA)
between September 18, 2020 and June 17, 2021 (the "Class Period"),
including Athira common stock purchased pursuant or traceable to
the registration statement and prospectus issued in connection with
the Company's initial public offering ("IPO") in September 2020.
If you purchased or otherwise acquired Athira securities during the
Class Period and/or in the IPO, you may move the Court for
appointment as lead plaintiff by no later than August 24, 2021. A
lead plaintiff is a representative party who acts on behalf of
other class members in directing the litigation. Your share of any
recovery in the actions will not be affected by your decision of
whether to seek appointment as lead plaintiff. You may retain Lieff
Cabraser, or other attorneys, as your counsel in the action.
Ahtira investors who wish to learn more about the litigation and
how to seek appointment as lead plaintiff should contact Sharon M.
Lee of Lieff Cabraser toll-free at 1-800-541-7358.
Background on the Athira Securities Class Litigation
Athira, headquartered in Bothell, Washington, is a clinical-stage
biopharmaceutical company focused on the development of molecular
technology in the treatment of neurological diseases, including
Alzheimer's disease. In September 2020, Athira completed its IPO by
issuing and selling approximately 13 million shares of common stock
at $17.00 per share, for net proceeds of approximately $186
million.
The actions allege that, throughout the Class Period, defendants
made materially false and misleading statements and/or omitted to
state material adverse facts regarding the Company's business,
operations, and prospects. Specifically, the actions allege that
defendants failed to disclose to investors that the doctoral
research conducted by Athira's Chief Executive Officer and
President, defendant Leen Kawas contained improperly altered images
and constituted potential research misconduct. Kawas's research
reportedly was foundational to Athira's efforts to develop
treatments for Alzheimer's disease and cited in a patent licensed
by Athira.
On June 17, 2021, after markets closed, Athira announced that Kawas
was placed on temporary leave pending an investigation by a special
committee into "actions stemming from doctoral research Dr. Kawas
conducted while at Washington State University." The same day, the
scientific publication STAT reported that the investigation
involves allegedly altered images appearing in four papers for
which Kawas was the lead author. According to STAT, Kawas's
research papers "are foundational to Athira's efforts to treat
Alzheimer's" and her "doctoral work laid the biological groundwork
that Athira continues to use in their approach to treating
Alzheimer's." According to an investment analyst, the investigation
could have "clear negative implications for how we/investors view
the asset, and/or management credibility." On this news, the price
of Athira common stock fell $7.09 per share, or 38.9%, from a
closing price of $18.24 on June 17, 2021, to close at $11.15 per
share on June 18, 2021, on heavy trading volume.
About Lieff Cabraser
Lieff Cabraser Heimann & Bernstein, LLP, with offices in San
Francisco, New York, Nashville, and Munich is an internationally
recognized law firm committed to advancing the rights of investors
and promoting corporate responsibility worldwide.
The National Law Journal has recognized Lieff Cabraser as one of
the nation's top plaintiffs' law firms for fourteen years. In
compiling the list, the National Law Journal examines recent
verdicts and settlements and looked for firms "representing the
best qualities of the plaintiffs' bar and that demonstrated unusual
dedication and creativity." Law360 has selected Lieff Cabraser as
one of the Top 50 law firms nationwide for litigation, highlighting
our firm's "laser focus" and noting that our firm routinely finds
itself "facing off against some of the largest and strongest
defense law firms in the world." Benchmark Litigation has named
Lieff Cabraser one of the "Top 10 Plaintiffs' Firms in America."
For more information about Lieff Cabraser and the firm's
representation of investors, please visit
https://www.lieffcabraser.com.
This press release may be considered Attorney Advertising in some
jurisdictions under the applicable law and ethical rules. [GN]
ATHIRA PHARMA: Schall Law Firm Reminds of Aug. 20 Deadline
----------------------------------------------------------
The Schall Law Firm, a national shareholder rights litigation firm,
on July 14 announced the filing of a class action lawsuit against
Athira Pharma, Inc. ("Athira" or "the Company") (NASDAQ: ATHA) for
violations of the federal securities laws.
Investors who purchased the Company's shares pursuant and/or
traceable to the Company's initial public offering conducted in
September 2020 (the "IPO"), or between September 18, 2020 and June
17, 2021, both dates inclusive (the "Class Period"), are encouraged
to contact the firm before August 20, 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. Research performed by Athira CEO and
President Leen Kawas was tainted by scientific misconduct. Kawas
allegedly engaged in the manipulation of key data in the research
through the manipulation of Western blot images. The tainted
research was of critical importance to the Company's efforts to
develop treatments for Alzheimer's. The Company's research and
development efforts were based on invalid data. 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 Athira, 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]
AURORA CANNABIS: Judge Tosses Securities Class Action Lawsuit
-------------------------------------------------------------
Shearman & Sterling disclosed that on July 6, 2021, Judge John
Michael Vazquez of the U.S. District Court for the District of New
Jersey dismissed a putative class action asserting claims under
Sections 10(b) and 20(a) of the Securities Exchange Act of 1934
against a Canadian company that manufactures and distributes
cannabis products (the "Company") and certain of its executives. In
re Aurora Cannabis, Inc. Sec. Litig., No. 19-cv-20588 (JMV) (JBC),
slip op. (D.N.J. July 6, 2021). Plaintiffs alleged that defendants
made material misstatements and omissions relating to the Company's
earnings projections that allegedly failed to disclose certain
headwinds in the industry. The Court held that plaintiffs failed to
identify any materially false or misleading statements, and also
noted weaknesses in plaintiffs' allegations with respect to the
scienter and loss causation requirements. Accordingly, the Court
dismissed the first amended complaint in its entirety, but granted
plaintiffs leave to replead to cure the identified defects.
The Court addressed various categories of alleged misstatements
contained in the Company's press releases, earnings calls, and
press interviews, which plaintiffs alleged were misleading because
they were unrealistically optimistic about the Company's projected
earnings while failing to disclose that the Company's sales were
hindered by (i) an oversupplied market, (ii) insufficient retail
stores in Canada, and (iii) the widespread availability of cannabis
on the black market. In each instance, the Court agreed that the
challenged statements were not, in fact, misleading, in light of
the Company's risk disclosures. For example, while plaintiffs
asserted that the risk of an oversupplied market should have been
disclosed, the Court explained that the Company's filings warned
that the "price of production, sale, and distribution of marijuana
will fluctuate widely due to how young the marijuana industry is
and is affected by numerous factors beyond the Company's control,"
including "increased production due to new production and
distribution developments and improved distribution methods."
With respect to plaintiffs' assertion concerning the risk of
insufficient retail stores throughout Canada, the Court noted that
the Company's filings disclosed regulatory risks associated with
the Canadian cannabis market, and had also specifically warned
during a conference call that the Company would "have to see a
better retail infrastructure in provinces across the country, in
order to see the kind, the level of sales that I think everybody is
anticipating." The Court also emphasized that plaintiffs merely
argued that the disclosures were boilerplate but did not
"adequately address the sufficiency of Defendants' disclosures."
Further, with respect to the Company's alleged failure to disclose
the availability of cannabis on the black market, the Court first
observed that the Company had disclosed the risk on a certain
earnings call and subsequent earnings statement, and plaintiffs had
not challenged the sufficiency of those disclosures. Regarding the
time period prior to the earnings call, the Court noted that
plaintiffs contended that statements regarding the global demand
for cannabis were misleading, but the news articles plaintiffs
pointed to as revealing the extent of black market demand only
discussed demand within Canada. The Court concluded that plaintiffs
failed to allege how omissions about the Canadian black market for
cannabis rendered statements about global demand misleading. The
Court further determined that other statements plaintiffs
challenged concerning the Company's ability to grow, its operating
capacity, and its earnings potential were not rendered misleading
by the alleged failure to disclose demand for cannabis on the black
market.
Although the Court emphasized that it "need not reach the issue of
scienter" given the deficiencies in plaintiffs' claims regarding
alleged misrepresentations, the Court went on to observe that it
agreed with plaintiffs that the timing of certain optimistic
statements -- shortly before less positive results were reported --
was "suspicious." However, the Court further noted that plaintiffs'
allegations of scienter depended on the theory that defendants
either knew of or consciously disregarded risks that were published
in the news media, and plaintiffs had not made any allegations
showing that the Company's management relied on such articles or
provided information that was materially inconsistent with the
Company's own internal information.
Similarly, the Court observed with respect to loss causation --
which the Court also emphasized was not necessary to reach given
the amended complaint's failure to identify a materially misleading
statement or omission -- plaintiffs relied on both a
"materialization of the risk" theory (which required proof that the
undisclosed risk was the "proximate cause" of the alleged loss) and
a corrective disclosure approach (which requires proof that a later
disclosure both reveal the truth of the alleged misrepresentation
and introduce "new information" into the market). Defendants argued
that if the large volume of press reports about headwinds in the
Canadian cannabis market and the Company's growth strategy were
widely known -- as plaintiffs argued in support of their scienter
argument -- then there were no "new facts" to support plaintiffs'
loss causation theories. The Court agreed that plaintiffs "should
have addressed the legal impact, if any, third-party information
had vis-a-vis proximate cause." However, because the Court granted
leave to amend, it emphasized that it was not making a "definitive
finding" on either scienter or loss causation.
Lastly, because the Court dismissed the Section 10(b) claim for
failure to state a claim, it dismissed the Section 20(a) claim
against the individual defendants as well. [GN]
BANK OF NEW YORK: Distribution of $72.5MM Deal in ADR FX Suit OK'd
------------------------------------------------------------------
District Judge J. Paul Oetken of the U.S. District Court for the
Southern District of New York issued an order approving the
distribution plan relating to a $72.5 million settlement in the
lawsuit titled IN RE: THE BANK OF NEW YORK MELLON ADR FX
LITIGATION, Case No. 16-CV-00212-JPO-JLC (S.D.N.Y.).
By its Order and Final Judgment dated June 17, 2019, and its Order
Approving Plan of Allocation of Net Settlement Fund dated June 17,
2019, the Court approved the terms of the settlement set forth in
the Stipulation and Agreement of Settlement dated January 15, 2019
and the proposed plan for allocating the net settlement proceeds to
Authorized Recipients.
The Court had directed the parties to consummate the terms of the
Settlement and Plan of Allocation.
The Settlement provided for consideration of $72,500,000 in cash
("Settlement Amount") and, pursuant to the terms of the
Stipulation, the Settlement Amount was deposited into an escrow
account established by the Lead Plaintiffs' Counsel for the benefit
of the Settlement Class.
As set forth in the Notice of (I) Pendency of Class Action and
Proposed Settlement; (II) Final Approval Hearing; and (III) Motion
for Attorneys' Fees and Reimbursement of Litigation Expenses
("Notice"), the deadline for Non-Registered Holder Settlement Class
Members to submit Claims to the Court-approved claims administrator
for the Settlement, Kurtzman Carson Consultants, LLC ("KCC"), in
order to be potentially eligible to participate in the distribution
of the Net Settlement Fund has passed.
In satisfaction of due process requirements, all Non-Registered
Holder Settlement Class Members who submitted Claims that were in
any way ineligible or deficient were: (i) informed that their
Claims were ineligible or deficient; and (ii) given opportunities
to correct any curable deficiencies prior to their Claims being
finally rejected, or to contest the determination as to such
deficiencies, by requesting judicial review.
All Registered Holder Settlement Class Members were provided access
to their distribution information provided by BNYM's transfer
agent, using the Claim Number and PIN set forth on the Post-Card
Notice they received and were provided with instructions on how to
amend or supplement their Claim if they believed the information
provided by BNYM's transfer agent was incorrect or incomplete.
The process of reviewing Claims has been completed.
The Lead Plaintiffs, through their Counsel, now seek authorization
to distribute the proceeds of the Settlement Fund to Authorized
Recipients, after deduction of any taxes, fees, and expenses
previously approved by the Court or approved by this Order ("Net
Settlement Fund").
The Court retained continuing and exclusive jurisdiction of this
Action in connection with, among other things: (i) the disposition
of the Settlement Fund; and (ii) any motion to approve distribution
of the Net Settlement Fund to Authorized Recipients.
Upon consideration of: (i) the Declaration of Justin R. Hughes in
Support of Lead Plaintiffs' Motion for Approval of Distribution
Plan ("Hughes Declaration"); (ii) the Memorandum of Law in Support
of Lead Plaintiffs' Unopposed Motion for Approval of Distribution
Plan; and (iii) the other submissions and papers on file with the
Court; and upon all prior proceedings heretofore and herein, and
after due deliberation, the Court ordered that the administrative
determinations of KCC accepting the Claims described in the Hughes
Declaration and listed on Exhibits B-1 and B-2 thereto, calculated
pursuant to the Court-approved Plan of Allocation set forth in the
Notice, are approved, and said Claims are accepted.
The administrative determinations of KCC rejecting the Claims
described in the Hughes Declaration and listed on Exhibit B-3
thereto are approved, and said Claims are rejected.
KCC will be paid the sum of $737,521.64 from the Net Settlement
Fund as payment for its outstanding fees and expenses incurred in
connection with the administration of the Settlement and for the
fees and expenses expected to be incurred by KCC in connection with
the Initial Distribution of the Net Settlement Fund to Authorized
Recipients.
The Court also ordered that KCC conduct the Initial Distribution of
the Net Settlement Fund as set forth in paragraph 52 of the Hughes
Declaration. Specifically, the Net Settlement Fund will be
distributed to the Authorized Recipients listed on Exhibits B-1 and
B-2 to the Hughes Declaration pursuant to the Court-approved Plan
of Allocation in proportion to each Authorized Recipient's
Recognized Claim as compared to the total Recognized Claims of all
Authorized Recipients as shown on such Exhibits.
All checks to Authorized Recipients issued in the Initial
Distribution will bear the notation "CASH PROMPTLY. VOID AND
SUBJECT TO RE-DISTRIBUTION IF NOT CASHED 90 DAYS AFTER ISSUE DATE."
The Lead Plaintiffs' Counsel and KCC are authorized to take
appropriate actions to locate and/or contact any Authorized
Recipient who has not cashed his, her or its check within said
time.
Authorized Recipients, who do not cash their checks within the time
allotted, will irrevocably forfeit all recovery from the Net
Settlement Fund.
After making reasonable and diligent efforts to have Authorized
Recipients negotiate their Initial Distribution checks, KCC will,
if cost-effective to do so, redistribute any funds remaining in the
Net Settlement Fund by reason of uncashed checks or otherwise nine
months after the Initial Distribution, or as reasonably soon
thereafter, to Authorized Recipients who have cashed their Initial
Distribution checks and who would receive at least $1 from such
re-distribution, after payment of any Distribution Amounts
mistakenly omitted from the Initial Distribution and any additional
administration fees and expenses incurred in administering the
Settlement, including for such redistribution.
KCC may make additional redistributions of balances remaining in
the Net Settlement Fund to Authorized Recipients who have cashed
their prior checks and who would receive at least $1 on such
additional redistributions if Lead Plaintiffs' Counsel, in
consultation with KCC, determines that additional redistributions,
after payment of any additional administration fees and expenses
incurred in administering the Settlement, including for such
redistributions, would be cost-effective.
At such time as the Lead Plaintiffs' Counsel, in consultation with
KCC, determine that further redistribution of the funds remaining
in the Net Settlement Fund is not cost-effective, any otherwise
valid Claims received after Nov. 24, 2020, or Claims adjusted after
the finalization of the Hughes Declaration may be paid in
accordance with paragraph 52(d) of the Hughes Declaration.
If any balance remains in the Net Settlement Fund after further
redistributions or payment of any otherwise valid Claims received
after Nov. 24, 2020, or Claims adjusted after the finalization of
the Hughes Declaration, in accordance with paragraph 52(d) of the
Hughes Declaration, which is not cost-effective to reallocate, Lead
Plaintiffs' Counsel will seek an order from the Court (i) approving
the recommendations that any further re-distribution is not
cost-effective or efficient; and (ii) ordering the contribution of
the funds remaining in the Net Settlement Fund to a nonsectarian
charitable organization.
The Court finds that the administration of the Settlement and the
proposed distribution of the Net Settlement Fund comply with the
terms of the Stipulation and the Plan of Allocation and that all
persons and entities involved in the review, verification,
calculation, tabulation, or any other aspect of the processing of
the Claims submitted in connection with the Settlement of this
Action, or who are otherwise involved in the administration or
taxation of the Settlement Fund or the Net Settlement Fund are
released and discharged from any and all claims arising out of such
involvement, and, pursuant to the release terms of the Settlement,
all Settlement Class Members, whether or not they are to receive
payment from the Net Settlement Fund, are barred from making any
further claims against the Net Settlement Fund or the parties
released pursuant to the Settlement beyond the amount allocated to
them pursuant to this Order.
KCC is authorized to dispose of paper copies of Claims and all
supporting documentation one (1) year from the final distribution
date of the Net Settlement Fund and electronic copies of the same
three (3) years after the final distribution date of the Net
Settlement Fund.
The Court retains jurisdiction over any further application or
matter which may arise in connection with this Action.
A full-text copy of the Court's Order dated July 1, 2021, is
available at https://tinyurl.com/wwp8n3dw from Leagle.com.
BATTERIES PLUS: Faces Robocall Class Action Suit in Florida
-----------------------------------------------------------
Eric J. Troutman, Esq., of Squire Patton Boggs (US) LLP, in an
article for The National Law Review, reports that one day you'll be
at trivia night at your local TCPAWorld.com branded pub and be
asked this question:
What poor company was the first to be sued in a class action under
Florida's new mini-TCPA?
Answer–Batteries Plus, LLC.
In a new suit filed on July 14 a Florida consumer has sued those
folks in a class action under the Florida Telephone Solicitation
Act, Fla. Stat. Sec. 501.059, as amended by Senate Bill No. 1120.
This is believed to be the very first such complaint ever filed
leveraging the amendment.
Ms. Cooper alleges receipt of unwanted text messages pitching the
Defendant's products. While such messages likely would not trigger
an ATDS claim under the TCPA -- unless they were randomly sent, and
I'm sure they weren't -- under the Florida bill all that is needed
is the use of a computer system to automatically determine the
sequence of dialing. And that, says Plaintiff, is precisely how
Defendant's system works:
"To transmit the above telephonic sales calls, Defendant utilized a
computer software system that automatically selected and dialed
Plaintiff's and the Class members' telephone numbers."
That might be the first ever rendition of autodialer allegations in
a pleading filed under the amended Florida bill.
History is made, I suppose.
Notably, although there is much conjecture about the reach of the
Florida bill–facially it applies to all calls made to anyone from
anywhere -- Cooper alleged that she "received such calls while
residing in and physically present in Florida." So there will not
be any question about Ms. Cooper's ability to state a claim
--although it is unclear to me whether the Wisconsin-based
defendant is subject to personal jurisdiction in Florida.
Plaintiff also (wisely) limited her class to Florida residents:
All persons in Florida who, (1) were sent a telephonic sales call
regarding Defendant's goods and/or services, (2) using the same
equipment or type of equipment utilized to call Plaintiff.
So the era of litigation under Florida 059 -- as I've taken to
calling it -- has commenced. Make sure that you are not using a
dialer that automatically determines the sequence of numbers to be
called if you're reaching out to Florida consumers without express
written consent–and that includes some click-to-dial systems,
folks. [GN]
BAYER AG: Set Aside $300M to Pay Farmers for 2015-20 Soybean Losses
-------------------------------------------------------------------
Stephen Steed, writing for Arkansas Democrat Gazette, reports that
an estimated 650,000 acres of soybeans have been damaged by dicamba
in Arkansas this summer and dicamba complaints filed with the state
have increased at a clip not seen since 2017.
The estimate by the University of Arkansas System's Division of
Agriculture is based on the collective experiences of extension
agents, weed scientists and crop consultants who have been
inspecting soybean fields across the state's eastern third the past
few weeks. About 400,000 of the affected acres are in Arkansas,
Prairie, Poinsett, Cross and St. Francis counties, the division
said.
Of the state's estimated 3 million acres of soybeans, about 1
million are of varieties that aren't tolerant of the herbicide. The
other 2 million acres are soybeans genetically modified by Monsanto
to be tolerant of dicamba and released commercially in 2016 as part
of its Xtend crop system. The 650,000 damaged acres equate to 1,106
square miles, more than Union County, the state's largest county at
1,039 square miles.
Arkansas farmers this year had a June 30 cutoff on spraying
federally licensed dicamba formulations across the top of their
dicamba-tolerant soybeans and cotton. By calendar days, it was
their longest legal spray season yet for the herbicide, although
heavy and persistent rainfall in late May and early June disrupted
spray schedules.
Sen. Ron Caldwell, R-Wynne, chairman of the Senate Committee on
Agriculture Forestry and Economic Development, on July 14 organized
a dicamba-damage tour consisting of a half dozen stops at farms
along a 100-mile loop from Stutttgart south to DeWitt, east to
Holly Grove and Marianna and north to Forrest City and Wynne.
Some 50 farmers and others were at the stops in Stuttgart and
Wynne; there were fewer participants in the caravan tour as it
progressed east.
"At every stop we saw damage at varying levels," said Caldwell,
whose Senate committee was set to meet jointly with its House
counterpart in Hot Springs, with dicamba damage on the committees'
agenda.
"Some had just curled leaves that will probably grow out of the
damage," Caldwell said. "Some plants will have reduced yields. Some
won't live. We relied on weed scientists and agronomists, not the
farmers, who could point out that this was damage from dicamba, not
some other source, and explain to the layperson what plants could
have reduced yields and what plants wouldn't live. We wanted
qualified people there to answer questions, folks who knew the
science. I wanted scientific answers, not emotional ones."
The state Plant Board, a division of the Department of Agriculture,
in December initially retained a May 25 cutoff set for the 2019 and
2020 crop seasons but, with a change in membership, voted three
months later for June 30 cutoff. The progress of a lawsuit in
Pulaski County Circuit Court challenging how the board complied
with state law in making that reversal has been halted by the
Arkansas Supreme Court.
In another ruling this spring unrelated to the board's reversal of
the cutoff, the Supreme Court ordered removal of nine of the Plant
Board's 16 members with voting privileges, saying the General
Assembly had unconstitutionally allowed trade groups to select the
members.
The board hasn't met since that ruling because of its inability to
legally muster a quorum. A state law revamping the board's
composition takes effect July 28, but the board's return to full
membership might not happen until late summer or early fall. The
new law permits the trade groups to nominate Plant Board members,
with the governor then making selections subject to confirmation by
the Senate.
COMPLAINTS NEAR 300
As of noon on July 16, 292 complaints of possible dicamba damage
had been filed with the Plant Board, with all but about 30 filed
since July 1. Another 126 complaints filed since January don't
specify a particular pesticide or herbicide.
Farmers and others filed 1,014 dicamba-specific complaints in 2017,
when the Plant Board adopted a mid-season emergency ban.
Investigations confirmed dicamba as the cause of damage in 900
cases. About 200 dicamba complaints were filed in each of the 2018,
2019 and 2020 crop seasons, with dicamba confirmed in 70% of those
cases.
The coronavirus pandemic, which prevented in-person board meetings
last year, and the Supreme Court's ruling on the board's membership
have stymied the board's work on 2019 and 2020 dicamba violations
-- with some violations eligible for fines of up to $25,000.
Arkansas Secretary of Agriculture Wes Ward, who attended the farm
tour, declined to compare damage in past years with that in 2021,
citing facts that vary over the years.
"We don't know the end result [of complaints]," Ward said by
telephone on July 14 at the end of the tour. "I suspect that number
will continue to go up but, hopefully, we are nearing the end of
that. We hope people will follow the rules and not apply
[dicamba]."
A surge of complaints is coming from counties that didn't have many
dicamba problems in the previous four years of the state's saga
with the herbicide.
Arkansas County had four complaints from 2017-20 but 60 as of July
16, the most in the state. Complaints from Woodruff County numbered
26 over four crop seasons, but 24 have been registered so far this
year. Fourteen complaints have been filed from Jackson County this
year, compared with five from 2017-20.
Meanwhile, the number of complaints has been sharply reduced this
year from counties that had major problems with dicamba in past
years.
Mississippi County had 261 complaints in 2017 and about 150 from
2018-20 but just two so far this year. Complaints from Crittenden
County have dropped from 271 from 2017-20 to five this year;
complaints in Craighead County have dropped from the four-year
total of 141 to 14.
That change, according to weed scientists and others, is partly
because farmers in counties such as Mississippi, Crittenden and
Craighead are almost exclusively planting dicamba-tolerant crops
and spraying dicamba, reducing by simple math the planting of crops
susceptible to the herbicide.
The widespread use of dicamba, critics say, is loading the
atmosphere, posing a bigger threat each year to other crops and
vegetation not tolerant of the herbicide. Counties west of
Crowley's Ridge, usually a natural barrier to dicamba's spread from
Delta counties, are seeing more complaints this year.
Research plots at five UA research stations in Mississippi, Lee,
Arkansas, St. Francis and Desha counties have sustained damage this
summer. Depending on the aim of the research project, some of those
plots have been rendered useless. While a weed study might still be
salvageable, for example, a yield study wouldn't be because dicamba
exposure would ruin any controls or baselines.
Most damage has been attributed to dicamba's volatility -- or
tendency to lift off plants as a vapor hours or days after
application and move miles away to susceptible crops and
vegetation. Weed scientists say it's almost impossible to determine
the source in those cases. The source of physical drift, which
occurs as the herbicide is applied, is more easily traced, as it
leaves a distinct pattern through affected fields.
It generally takes a couple of weeks for dicamba damage to appear
on soybeans and then, varying times for a farmer to spot that
damage, resulting in a timeline that means officials expect
complaints to continue into late July or early August.
The UA estimate on acres damaged involve only soybeans, not cotton
or other commercial crops, or possible damage to backyard gardens,
trees and ornamental shrubs on private property or vegetation on
public lands such as right-of-ways, city and state parks and
wildlife management areas.
Monsanto genetically modified soybeans and cotton to be tolerant of
dicamba as "super weeds," including pigweed in Arkansas, developed
resistance to glyphosate and other herbicides. Monsanto in 2017
released new dicamba formulations that were supposed to be less
susceptible to off-target movement.
While not specifically addressing alleged dicamba problems in
Arkansas, a Bayer spokesman said on July 16 the company stands by
its Xtend crop system. "Based on our conversations with growers and
our observations so far this season, we believe our customers are
having a very successful season with XtendiMax herbicide," the
spokesman said, adding that the company believed new rules by the
Environmental Protection Agency improved the effectiveness of the
crop system.
Officials at Corteva Agriscience, developers of Enlist varieties of
soybeans that have sustained damage this season, didn't respond to
requests for comment.
Dicamba manufacturers said in 2017 there would be fewer problems as
farmers received more training and got more experience with the
herbicide.
'LANDSCAPE DAMAGE'
"I've been working in several counties that had some problems in
years past but now have landscape damage," Tommy Butts, a UA weed
scientist, said, referring to widespread damage across multiple
fields in a localized area and stretching from one end of a field
to the other.
While Butts has spent time in fields across the Delta, most of the
past couple of weeks has been spent in Arkansas County.
"They've had soybean injury across that entire county, and it's
fairly severe injury," Butts said. "I've walked fields from around
Stuttgart, to south of DeWitt and over to St. Charles and Crocketts
Bluff. I've seen injury anywhere and everywhere in Arkansas
County."
Soybean production in Arkansas County generally is opposite the
state average, with about 70% non-Xtend, or crops not tolerant of
dicamba, and 30% Xtend, Butts said.
Yield loss is difficult to project and really won't be known until
harvest this fall, Butts said, citing several factors, including
growth stage of the soybeans when exposed to dicamba and the number
of times exposed.
While yield losses have often been downplayed by dicamba-use
advocates, Bayer last year agreed to settle class-action "legacy"
lawsuits filed against Monsanto before Bayer bought the latter
company in 2018 for $63 billion. Without admitting wrongdoing,
Bayer set aside $300 million to pay farmers for soybean losses from
2015-20 through an on-going claims process.
Farmers and custom applicators who spray dicamba now are required
by the EPA to use an approved "volatility reducing agent" in their
dicamba tank mixes and keep records of the agents' use. The agents
are supposed to reduce dicamba's volatility by stabilizing pH
levels in the tank mix; the lower the pH the more volatile dicamba
becomes.
The EPA said last fall it was 90% certain the new agents --
produced by makers of lower-volatility dicamba formulations --
would reduce damage.
"Apparently the so-called volatility reduction agents are working
about as well as the low-volatility dicamba formulations, which is
to say they aren't working well at all," said Ford Baldwin, a crop
and weed consultant and retired UA weed scientist who warned the
Plant Board in 2015 of problems that would be caused by the Xtend
seed-and-dicamba crop system.
"We've seen this train wreck before over the last six years,"
Baldwin said. "The EPA, the Plant Board and Department of
Agriculture are on the wrong side of the science."
Dicamba manufacturers refused to allow independent testing of the
volatility-reducing agents just as they prohibited independent
testing years ago of the volatility of the low-volatility dicamba
formulations, Baldwin said.
Now that the volatility reduction agents are commercially
available, weed scientists in Arkansas and other states are testing
the agents for their effectiveness.
Baldwin said the agents reduce dicamba's volatility in a tank mix
but, considering widespread crop damage this season, they
apparently don't reduce its volatility after application, when some
dicamba converts to an acid on plants and soil.
"The acid form is volatile, and that is a problem that hasn't been
solved and might not ever be solved," Baldwin said. "It's a product
that never should have been registered for the use we're using it
for. By the end of the season there won't be a non-Xtend bean that
won't be hit and there won't be any help for those who want to grow
commercial vegetables or raise a garden or who don't want their
trees and shrubs damaged." [GN]
BOARDWALK PIPELINES: Huggins Sues Over Inspectors' Unpaid OT Wages
------------------------------------------------------------------
GREG HUGGINS, individually and for others similarly situated,
Plaintiff v. BOARDWALK PIPELINES, LP, Defendant, Case No.
4:21-cv-02273 (S.D. Tex., July 14, 2021) is a collective action
complaint brought against the Defendant to recover unpaid overtime
wages and other damages pursuant to the Fair Labor Standards Act.
The Plaintiff was employed by the Defendant as a Welding Inspector
from approximately January 2020 until May 2020.
The Plaintiff claims that although he and other similarly situated
inspectors worked more than 40 hours per week for the Defendant,
the Defendant paid them a flat daily rate regardless of the number
of hours they had worked. The Defendant deprived them of their
lawfully earned overtime compensation at the rate of one and
one-half times their regular rate of pay for all hours worked in
excess of 40 per workweek, the Plaintiff alleges.
Boardwalk Pipelines, LP provides transportation and storage of
natural gas and liquids. [BN]
The Plaintiff is represented by:
Michael A. Josephson, Esq.
Andrew W. Dunlap, Esq.
Carl A. Fitz, Esq.
JOSEPHSON DUNLAP LLP
11 Greenway Plaza, Suite 3050
Houston, TX 77046
Tel: (713) 352-1100
Fax: (713) 352-3300
E-mail: mjosephson@mybackwages.com
adunlap@mybackwages.com
cfitz@mybackwages.com
- and –
Richard J. (Rex) Burch, Esq.
BRUCKNER BURCH PLLC
11 Greenway Plaza, Suite 3025
Houston, TX 77046
Tel: (713) 877-8788
Fax: (713) 877-8065
E-mail: rburch@brucknerburch.com
BOMBAS LLC: Class Settlement Gets Preliminary Court Approval
------------------------------------------------------------
David Collins, writing for Law Street, reports that the Northern
District of California granted a motion for preliminary approval of
class action settlement on July 12 between consumers led by Alex
Pygin, Bombas, LLC and Shopify, Inc. This settlement will reimburse
consumers who were victims of a data breach through Bombas'
platform.
Bombas has been using Shopify since 2015 "to provide ecommerce
technology for their customers to purchase items online." The
plaintiffs alleged that "the Shopify Plus platform takes the key
payment and personal information from the customer to finalize the
transaction, including name, billing and shipping addresses,
payment card type and number, CVV code, credit card expiration
date, email address and sometimes telephone number." Shopify's
website says "running a secure ecommerce solution and keeping your
online store safe is our number one priority" to businesses and "we
protect your information from others" to consumers. However, Bombas
customers received a Notice of Data Breach on June 3, 2020, where
"malicious code could have successfully scraped customer
information between November 11, 2016 and February 16, 2017."
In July 2020, consumers filed a class action complaint and proposed
a settlement fund of $225,000 to be given to class members, as well
as costs of Claims Administration, attorney's fees, and service
award to be paid in full by Bombas. The defendants agreed to write
a Written Information Security Policy, train employees to carry out
this policy, implement a strong password policy and multi-factor
authentication.
On July 12, the court preliminarily approved this unanimously
agreed-upon settlement and appointed Alex Pygin as the
Representative Plaintiff. The motion for final approval will be on
November 5, and the final approval hearing will be on November 19.
The plaintiffs are represented by Clayeo C. Arnold, A Professional
Law Corp., and Morgan & Morgan Complex Litigation Group. [GN]
BRENTLINGER ENT: Seeks to Extend Class Cert. Response to July 30
----------------------------------------------------------------
In the class action lawsuit captioned as Austin Binder, On behalf
of himself and those similarly situated, v. Brentlinger
Enterprises, d/b/a Midwestern Auto Group, Case No.
2:21-cv-00136-MHW-KAJ (S.D. Ohio), the Defendant asks the Court to
enter an order granting a 14-day extension of its deadline to
respond to the Amended Pre-Discovery Motion For Conditional Class
Certification And Court-Superviseda Notice To Potential Opt-In
Plaintiffs filed by Plaintiff Binder.
With this requested extension, the Defendants' new deadline for
filing their response would be Friday, July 30, 2021.
The Defendant seeks this extension to accommodate various
scheduling conflicts and other matters involving the undersigned,
including an appellate briefing deadline in In re RS Air, LLC, Case
No. NC-21-1080 (B.A.P. 9 th Cir.), and a pre-planned family
vacation.
Brentlinger Enterprises manufactures automobile.
A copy of Defendant's motion dated July 12, 2021 is available from
PacerMonitor.com at https://bit.ly/3kzi4lA at no extra charge.[CC]
The Defendant is represented by:
Christopher J. Hogan, Esq.
Marion H. Little, Jr., Esq.
Christopher J. Hogan, Esq.
ZEIGER, TIGGES & LITTLE LLP
3500 Huntington Center
41 South High Street
Columbus, OH 43215
Telephone: (614) 365-9900
Facsimile: (614) 365-7900
E-mail: little@litohio.com
hogan@litohio.com
BROADCOM CORP: Faces Carolis Suit Over Failure to Pay Wages
-----------------------------------------------------------
TINA CAROLIS, individually and on behalf of all others similarly
situated, Plaintiff v. BROADCOM CORPORATION; and DOES 1 through 20,
inclusive, Defendants, Case No. 21CV384293 (Cal. Sup. Ct., July 14,
2021) brings this complaint seeking for monetary relief and other
damages against the Defendants pursuant to the California Labor
Code Private Attorneys General Act of 2004.
The Plaintiff, who has worked for the Defendants as non-exempt
employee, alleges that the Defendants have engaged in a systemic
pattern of wage and hour violations under the California Labor Code
and Industrial Welfare Commission (IWC) Wage Orders.
The Plaintiff asserts these claims:
-- The Defendants failed to pay minimum wages at the federally
mandated minimum wage rate and overtime wages at the federally
mandated overtime rate for hours worked in excess of 40 per week;
-- The Defendants failed to provide lawful meal periods or
compensation in lieu thereof, and lawful rest breaks or
compensation in lieu thereof;
-- The Defendants failed to reimburse necessary
business-related costs;
-- The Defendants failed to maintain accurate and complete
records showing the hours worked daily and the wages paid to
aggrieved employees;
-- The Defendants failed to provide accurate itemized wage
statements; and
-- The Defendants failed to pay all wages due during and upon
separation of employment.
Broadcom Corporation provides semiconductor and infrastructure
software solutions. [BN]
The Plaintiff is represented by:
Samuel A. Wong, Esq.
Kashif Haquw, Esq.
Jessica L. Campbell, Esq.
AEGIS LAW FIRM, PC
9811 Irvine Center Drive, Suite 100
Irvine, CA 92618
Tel: (949) 379-6250
Fax: (949) 379-6251
E-mail: jcampbell@aegislawfirm.com
BUFFALO EXCHANGE: Removes Detert Suit to Colorado District Court
----------------------------------------------------------------
The Defendant in the case of ALYSSA DETERT; ALEX MYERS; AMANDA
PRUESS; and CLARA PRUESS, individually and on behalf of all others
similarly situated, Plaintiffs v. BUFFALO EXCHANGE LTD; TODD
COLLETTI; FORGOTTEN WORKS, LLC; WATERMELON SUGAR, LLC; TATANKA,
INC.; SCOUT DRY GOODS COLORADO LLC; JUSTIN VAN HOUTEN; VICTOR
CORTES; and KATHERINE PLACHE, Defendants, filed a notice to remove
the lawsuit from the Denver County District Court (Case No.
2021CV31464) to Colorado District Court on July 8, 2021. The clerk
of court for Colorado District Court assigned Case No.
1:21-cv-01856.
The case is assigned to Judge Scott T. Varholak.
Buffalo Exchange, Ltd. was founded in 1974. The company's line of
business includes the retail sale of women's ready-to-wear
clothing. [BN]
The Plaintiff is represented by:
J. Bennett Lebsack, Esq.
LOWREY PARADY LEBSACK, LLC
1490 Lafayette St., Suite 304
Denver, CO 80218
Telephone: (303) 593-2595
Fax: (303) 502-9119
E-mail: ben@lowrey-parady.com
BURGER MAKER INC: Blind Users Can't Access Web Site, Pascual Says
-----------------------------------------------------------------
DOMINGO PASCUAL, individually and on behalf of all others similarly
situated, Plaintiffs v. BURGER MAKER, INC., Defendant, Case No.
1:21-cv-05772 (S.D.N.Y., July 6, 2021) alleges violation of the
Americans with Disabilities Act.
The Plaintiff alleges in the complaint that the Defendant's
Website, shop.schweidandsons.com, is not fully or equally
accessible to blind and visually-impaired consumers in violation of
the ADA. The Plaintiff seeks a permanent injunction to cause a
change in the Defendant's corporate policies, practices, and
procedures so that the Defendant's Website will become and remain
accessible to blind and visually-impaired consumers, the suit
adds.
Baker's Burgers, Inc. operates as a restaurant. The Company offers
sandwiches, ribs and chips, seafood fry, chicken strips, beer
battered fish, soups and chili, burgers, appetizers, pancakes, and
beverages. [BN]
The Plaintiff is represented by:
Joseph H. Mizrahi, Esq.
COHEN & MIZRAHI LLP
300 Cadman Plaza West, 12th Fl.
Brooklyn, New York 11201
Telephone: (929) 575-4175
Facsimile: (929) 575-4195
E-mail: Joseph@cml.legal
CALIFORNIA HEALTH: Ford Files Suit in Cal. Super. Ct.
-----------------------------------------------------
A class action lawsuit has been filed against CALIFORNIA HEALTH AND
RECOVERY SOLUTIONS, P.C. The case is styled as Ila Ford, as an
individual and on behalf of all others similarly situated v.
CALIFORNIA HEALTH AND RECOVERY SOLUTIONS, P.C., a California
Corporation, Case No. BCV-21-101663 (Cal. Super. Ct., Kern Cty.,
July 21, 2021).
The case type is stated as "Other Employment - Civil Unlimited."
California Health And Recovery Solutions, P.C. is an active
Californian business entity incorporated 17th April 2009.[BN]
The Plaintiff is represented by:
Larry W. Lee, Esq.
1110 Franklin St. Ste. 6
Oakland, CA 94607-6528
Phone: (415) 779-2888
Fax: (415) 738-7873
Email: larry@ysleelaw.com
CANADA: Immigration and Refugee Board to Review Racism Claims
-------------------------------------------------------------
Shanifa Nasser, writing for CBC News, reports that a federal
employee is breaking her silence about the experience of being
Black in the public service after a senior colleague at the
Immigration and Refugee Board's Toronto office allegedly praised
"the good old days when we had slaves."
Monica Agard spoke to CBC News after she says the board failed to
act or acknowledge the psychological toll that the racist comment
had on her as a Black woman -- even after she filed a formal notice
about the incident.
What's worse, she said, only months after the alleged comment, that
same employee went on to become Agard's direct supervisor until she
objected, and he was reassigned about a week later.
"In my heart, I believe that there are some underlying racial tones
to this, because why would you make comments like that?" Agard told
CBC News.
"The comments themselves are clearly racist."
Issue raised when colleague became supervisor
Her experience is just one of a growing chorus of stories of Black
civil servants who say they have quietly faced discrimination in
their ranks for decades, be it poor treatment or being passed over
for promotions.
Agard said beyond the comments themselves, the lack of action by
the immigration board made the situation "doubly hurtful."
"I see it that they don't value me as a person enough to say, 'I
will deal with this because it is serious,'" she said.
A 30-year veteran of the public service, Agard had been talking
with a colleague at her desk in November 2019 about their workloads
when a more senior employee passed by and intruded on the
conversation, she said.
"We need to go back to the good old days when we had slaves," she
alleges the senior employee said.
"I felt as if I would have a nervous collapse," Agard wrote in a
formal notice this past spring, adding she asked the employee to
stop or else she would file a grievance against him.
"Your people were not the only people who were slaves," she said he
replied, before walking away.
Agard didn't file a complaint at the time of the incident -- she
says she'd lost confidence in the system after an earlier complaint
about the same individual was closed without explanation, and she
didn't raise the issue until he was set to become her supervisor.
Push for mental health fund for Black federal employees
Last December, a dozen current and former federal employees issued
a proposed class-action lawsuit against the federal government,
naming more than 50 departments and agencies and seeking some $900
million in damages. The suit has yet to be certified, but Agard has
since signed on as a member.
At the time the legal action was filed, the Treasury Board of
Canada Secretariat, which employs the federal public service, said
it could not comment on the allegations because the lawsuit was
before the courts.
Earlier this month, an update was made to the claim: A motion was
filed in Federal Court to order an interim mental health fund of at
least $100 million for current and former Black employees who, the
plaintiffs say, need immediate support for trauma they've faced
working in the public service.
"The damages that Black workers have faced and continue to face,
it's real and it's ongoing . . . . We cannot afford to wait, you
know, four years for a lawsuit to be settled," said Nicholas Marcus
Thompson.
Thompson, a racial justice advocate, is among the 12 current and
former federal employees who filed the class-action lawsuit last
year. If certified, it could cover thousands of Black employees
with the federal service going back to 1970.
"Some of our class members have shared that they've had suicidal
attempts. They've thought about ending their life because it has
become so challenging, so difficult to show up for work every day,"
Thompson told CBC News.
Federal employees have access to an employee assistance program and
the public service health-care plan, which provides up to $2,000
per year to workers and their dependents. But Thompson said those
resources are inadequate -- often short term, with counsellors
lacking the lived experience to address trauma faced by Black
employees specifically.
'Like all organizations, the board has more work to do'
The Immigration and Refugee Board said in an email to CBC News that
it "takes allegations of this nature very seriously." The board
said it is aware of Agard's allegations and that her case is "under
review," but it could not comment on specifics "to protect the
integrity of the process."
"Racism and discrimination in any form are unacceptable and
fundamentally incompatible with the IRB's core values of civility,
fairness and respect, as well as our ongoing commitment to
fostering a diverse and inclusive work culture," IRB spokesperson
Line-Alice Guibert-Wolff.
For a manager to feel so emboldened to make such comments . . . it
demonstrates the amount of privilege that white people wield within
the public service.
- Nicholas Marcus Thompson
"Like all organizations, the board has more work to do to ensure
the experiences of all of its employees align with the values of
the organization," Guibert-Wolff said, adding it established a new
ombudsman's office in 2020 and new mandatory training, and it's
continuing to develop a diversity and inclusion strategy.
In an email to CBC News, the Treasury Board of Canada Secretariat
said amendments to the Public Service Employment Act received royal
assent on June 29 -- just days ahead of the motion filed earlier
this month. The amendments reaffirm the importance of a diverse and
inclusive workforce, and strengthen provisions to address potential
bias and barriers in staffing, the board said.
Investigation finds multiple employees spread a racist, violent
email at Transport Canada
The secretariat also said it is studying the motion filed in the
lawsuit and is hopeful that the concerns raised may be resolved
through further discussions with the plaintiffs.
"The Government of Canada is committed to fostering a healthy,
supportive and respectful workplace. A healthy workplace is
essential to the physical and psychological health of all public
service employees, as it enables them to bring the best of their
diverse talents, skills and energy as they deliver services to
Canadians," spokesperson Martin Potvin said.
Symptom of a larger problem, activist says
While Agard's experience was heartbreaking, Thompson said, it's a
symptom of a larger problem within the service.
"For a manager to feel so emboldened to make such comments not only
in front of the employee but in front of another employee as well,
it demonstrates the amount of privilege that white people wield
within the public service," he said.
Meanwhile, Agard -- who remains an Immigration and Refugee Board
employee -- said it was important for her to speak out for the
benefit of other Black employees who might be struggling by
themselves.
Five years on, Trudeau's vow to build a diverse public service
still unfulfilled
"All these people from different areas of the service have similar
stories of not progressing, of not being respected, of taking away
your dignity and your self-worth.
"Sometimes when you suffer, you think you suffer alone," she said
tearfully. "It's always stronger together." [GN]
CANADA: Military Sexual Misconduct Class Action Claims Up 170%
--------------------------------------------------------------
Amanda Connolly, writing for Global News, reports that the number
of military sexual misconduct class action claims have jumped by
170 per cent since late December 2020 amid a reckoning over abuse
of power and the toxic culture in the Canadian Forces.
More than 600 new claims have been submitted just in the past
month, but there are growing concerns that the process is
blindsiding some who have come forward to share the trauma of their
experiences.
"We have seen a significant increase in the number of claims that
have been received in the past six months," said Andrew Astritis, a
lawyer with Raven Law who is among the legal counsels for
claimants.
"We encourage all survivors to come forward and make a claim
through the confidential and non-adversarial claims process, or to
contact the Administrator or class counsel if they have any
questions about the process or their eligibility."
Astritis said the increase means more than 60 per cent of the
claims submitted to the class action lawsuit have been submitted in
the second half of the eligibility period.
The $900-million class action lawsuit was settled in 2019 and
opened to claims from survivors and victims of military sexual
misconduct on May 25, 2020. It had received 2,729 claims by late
December 2020, according to Astritis.
Since then though, claims have jumped to 7,346 as of July 13, 2021
-- an increase of roughly 170 per cent, with four months still left
for survivors and victims to submit further claims.
The 7,346 claims as of July 13 is up from 6,666 claims submitted as
of mid-June, or an average of roughly 150 claims submitted per week
over the past month.
"The increase of numbers seems to suggest that there has been the
creation of an environment where people, victims of sexual
misconduct, are more likely to come forward because they feel less
alone," said Charlotte Duval-Lantoine, a fellow with the Canadian
Global Affairs Institute who specializes in toxic military
leadership.
"That doesn't mean that everyone is comfortable moving forward or
that they're particularly ready or enthusiastic about coming
forward. It's just that they see that they're not alone, that there
is a system put in place for them to get justice. And I think that
this is a significant move forward."
Duval-Lantoine emphasized there remain challenges for those who
come forward to try to join the class action lawsuit, as well as
those who have submitted claims and now wait for what comes next.
"What I've been hearing in the past few days is that the system is
very traumatic, even if the lawyers are doing their best to help
the victims," she said, noting some emails to claimants use wording
akin to, "Congratulations, your sexual harassment or sexual assault
allegations are recognized as real."
Others get notified out of the blue about a decision on their
claim, with no time to prepare the resources they will need in
place for support or to prepare themselves emotionally.
"This is extremely traumatic for some people," she said.
"Warning them that an update on their claim is coming up might be
helpful."
Sam Samplonius, communications director for the military sexual
violence support group It's Not Just 700, says she has kept an eye
on things as the class action process got underway.
She said while it seems that overall things have moved along well,
the organization has been hearing similar concerns about how
difficult the process is for survivors and victims to navigate.
"There are some people that could say it could have been done
better," she told Global News.
"Some people were upset about the way it was handled, the responses
that they were getting back on their claims. They felt that they
were kind of cold or not very understanding or trauma-informed."
The term "trauma-informed" refers to policies and systems that take
into account the need to create emotionally safe environments for
people who have likely experienced or been exposed to trauma.
A trauma-informed approach is common in fields like social work
where practitioners put the focus on making sure there are support
measures in place to avoid re-traumatizing someone, particularly
when recounting or reliving painful experiences from their past.
"Trauma and violence-informed approaches are not about ‘treating'
trauma, for example, through counselling or chronic pain
interventions," according to the Public Health Agency of Canada.
"Instead, the focus is to minimize the potential for harm and
re-traumatization, and to enhance safety, control and resilience
for all clients involved with systems or programs."
That's exactly what one former military member says was lacking
during her experience dealing with the class action process. She
spoke with Global News about the emotional impact of the process on
the condition she not be named, because one of her claims remains
under evaluation.
"It leaves me in a state of communications anxiety, because I have
no idea when there will be an update and when I will need to make
sure I have support in place," she said, noting the time between
submitting the claims and hearing back on one of them was a period
of months.
"I might not be able to work for a day or two."
She said a change as simple as allowing people to choose if they
want a heads up about a pending decision on their claims could go a
long way in mitigating some of the impact.
"I think the biggest thing for me is options. Some people may feel
differently, but I would like there to be communications options to
get a heads up that something is coming. I don't even need to know
what the decision will be – I just would like to be able to
prepare," she said.
"I have a hard time believing this is trauma-informed."
Annalise Schamuhn, a retired army officer, shared her perspective
on Twitter on July 12 on the effect of an update on her case that
included the language, "We are pleased to confirm."
"I thought the worst was over when I submitted it, but this is
awful," she said in her tweet.
In an email exchange, Schamuhn gave Global News permission to
include her tweets and added that while it is made easier by
"knowing we aren't alone," the experience is extremely difficult.
"It is a hard process to catalogue the many traumas we endured,
which ended my and many other careers," Schamuhn said in the email.
"As difficult as it is, it is part of the healing journey for many.
I hope there will be some remedy for those who are not yet at an
emotional place where they can tolerate the excruciating process of
submitting a claim and waiting for a response."
READ MORE: Feds agree to $900M settlement over military sexual
misconduct class action
A spokesperson for Defence Minister Harjit Sajjan said the focus
must be on the needs of survivors.
"The Minister has instructed officials to work with the court
appointed administrator and class counsel to ensure that this
process works in a way that meets the needs of survivors," said
press secretary Daniel Minden in an email.
"We will continue to work with those impacted to ensure that our
processes are informed by trauma."
James Bezan, Conservative defence critic, said there needs to be
priority placed on not re-traumatizing people going through the
process.
"This is something that needs to be addressed immediately,
especially with the huge number of victims who have come forward
now," he said. "We need to make sure people who are dealing with
the victims are properly trained to deal with this in an
appropriate manner."
The claims process for military sexual misconduct is open until
November 24, 2021.
It's open to current and serving members of the Canadian Forces, as
well as current or former employees of the Department of National
Defence.
Military sexual misconduct has been a longstanding problem over
decades, but the landmark 2015 report by former Supreme Court
justice Marie Deschamps documented the extent of the challenge and
identified power imbalances and a toxic culture as central factors
allowing it to continue.
In a separate report released on June 1, 2021, former Supreme Court
justice Morris Fish said his own review of the military justice
system found sexual misconduct remains as "rampant" and
"destructive" within the Canadian military in 2021 as it was when
Deschamps wrote her report.
Multiple military police investigations are underway into current
and former high-level leaders within the Canadian military,
following reporting by Global News on Feb. 2, 2021, into
allegations against former chief of the defence staff Gen. Jonathan
Vance. He denies the allegations.
His successor, Adm. Art McDonald, stepped aside as top soldier in
late February when military police opened a probe into an
allegation against him. He has declined to comment.
But the allegations have prompted a reckoning and a national
conversation about the need to dismantle what Deschamps identified
as an institutional culture that is "toxic" to women and LGBTQ
members.
Sajjan ordered an external review in April. Former Supreme Court
justice Louis Arbour is tasked with recommending how to create an
independent reporting system for military sexual misconduct — a
key Deschamps recommendation that the Liberals did not act on for
six years.
Duval-Lantoine warned the cultural reckoning may be one part of the
increase in claimants to the class action lawsuit, but it's likely
not the only factor.
The challenge now, she said, is for those tasked with adjudicating
the process and those responsible for changing the broken system
live up to the trust placed in them by the survivors and victims.
"We've been seeing this for a couple of months, for almost half a
year," she said of the conversations taking place around sexual
misconduct. "But we had the same thing with the #MeToo movement."
"We had that wave of allegations for like a year, a year and a half
-- and then it died down. And we have seen this also with the
military after 2015," she continued.
"We may see momentum today, but the question is: how do we keep
it?" [GN]
CARLOTZ INC: Faces Erdman Suit Over Drop in Share Price
-------------------------------------------------------
DANIEL G. ERDMAN, individually and on behalf of all others
similarly situated, Plaintiff v. CARLOTZ, INC.; MICHAEL W. BOR; and
THOMAS W. STOLTZ, Defendants, Defendants, Case No. 1:21-cv-05906 is
a class action on behalf of persons and entities that purchased or
otherwise acquired CarLotz securities between December 30, 2020 and
May 25, 2021, inclusive (the "Class Period"). Plaintiff pursues
claims against the Defendants under the Securities Exchange Act of
1934 (the "Exchange Act").
The Plaintiff alleges in the complaint that throughout the Class
Period, the Defendants made materially false andr misleading
statements, as well as failed to disclose material adverse facts
about the Company's business, operations, and prospects.
Specifically, the Defendants made material misrepresentations
concerning the following: (1) that, due to a surge in inventory
during the second half of fiscal 2020, CarLotz was experiencing a
"logjam" resulting in slower processing and higher days to sell;
(2) that, as a result, the Company's gross profit per unit would be
negatively impacted; (3) that, to minimize returns to the corporate
vehicle sourcing partner responsible for more than 60% of CarLotz's
inventory, the Company was offering aggressive pricing; (4) that,
as a result, CarLotz's gross profit per unit forecast was likely
inflated; (5) that this Company's corporate vehicle sourcing
partner would likely pause consignments to the Company due to
market conditions, including increasing wholesale prices; and (6)
that, as a result of the foregoing, Defendants' positive statements
about the Company's business, operations, and prospects were
materially misleading and lacked a reasonable basis.
On May 26, 2021, before the market opened, CarLotz announced an
update to its profit-sharing sourcing partner arrangement.
Specifically, CarLotz stated that its "profit-sharing corporate
vehicle sourcing partner informed the Company that, in light of
current wholesale market conditions, it has paused consignments to
the Company." Moreover, this partner "accounted for more than 60%
of the cars sold and sourced" during first quarter 2021 and "less
than 50% of the cars sold and approximately 25% of cars sourced"
during second quarter 2021 to date.
On this news, the Company's stock price fell $0.70, or 13.4%, to
close at $4.51 per share on May 26, 2021, on unusually heavy
trading volume.
CarLotz, Inc. operates as a used vehicle consignment and retail
remarketing business. The Company specializes in the buying and
selling of used cars, trucks, sedans, SUVs, vans, wagon, and
convertibles, as well as offers bike and other vehicles. CarLotz
serves customers in the United States. [BN]
The Plaintiff is represented by:
Gregory B. Linkh, Esq.
GLANCY PRONGAY & MURRAY LLP
230 Park Ave., Suite 358
New York, NY 10169
Telephone: (212) 682-5340
Facsimile: (212) 884-0988
E-mail: glinkh@glancylaw.com
-and-
Robert V. Prongay, Esq.
Charles H. Linehan, Esq.
Pavithra Rajesh, Esq.
GLANCY PRONGAY & MURRAY LLP
1925 Century Park East, Suite 2100
Los Angeles, CA 90067
Telephone: (310) 201-9150
Facsimile: (310) 201-9160
CARLOTZ INC: Schall Law Firm Reminds of September 7 Deadline
------------------------------------------------------------
The Schall Law Firm, a national shareholder rights litigation firm,
reminds investors of a class action lawsuit against CarLotz, Inc.
('CarLotz' or 'the Company') (NASDAQ:LOTZ) for violations of
Sections 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
30, 2020 and May 25, 2021, inclusive (the ''Class Period''), are
encouraged to contact the firm before September 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. CarLotz suffered from a 'logjam' due to a
surge of inventory in the second half of 2020. The Company's gross
profit per unit suffered due to the inventory problems. The Company
offered aggressive pricing to customers to minimize returns to its
sourcing partner. The Company's gross profit per unit forecast was
inflated. 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 CarLotz, investors suffered
damages.
Join the case to recover your losses.
The Schall Law Firm represents investors around the world and
specializes in securities class action lawsuits and shareholder
rights litigation.
This press release may be considered Attorney Advertising in some
jurisdictions under the applicable law and rules of ethics.
Contacts
The Schall Law Firm
Brian Schall, Esq.,
www.schallfirm.com
Office: 310-301-3335
info@schallfirm.com [GN]
CENTENO AC: Flores Seeks Manual Laborers' Unpaid Overtime Wages
---------------------------------------------------------------
FRANCISCO FLORES, individually and on behalf of all others
similarly situated, Plaintiff v. CENTENO AC INSULATION AND SHEET
METAL LLC, Defendant, Case No. 4:21-cv-02284 (S.D. Tex., July 14,
2021) is a collective action complaint brought against the
Defendant for its alleged violations of the Fair Labor Standards
Act and the Portal-to-Portal Act.
The Plaintiff has worked for the Defendant as a manual laborer from
on or about January 2021 until on or about April 2021.
According to the complaint, the Plaintiff routinely worked more
than 40 hours per week, approximately 50-85 hours of work, for the
Defendant. But instead of paying him overtime compensation at the
rate of one and one-half times his regular rate of pay for all
hours worked in excess of 40 per week, the Defendant allegedly paid
the Plaintiff "straight-time basis" or at the same hourly rate for
all hours worked.
The Plaintiff seeks all damages, including back wages, liquidated
damages, legal fees, costs, pre-judgment interest, and other relief
to which the Plaintiff and other similarly situated manual laborers
may be justly entitled.
Centeno AC Insulation and Sheet Metal LLC is a full-service,
heating, ventilation and air conditioning service construction
company. [BN]
The Plaintiff is represented by:
Ricardo J. Prieto, Esq.
Melinda Arbuckle, Esq.
SHELLIST LAZARS SLOBIN LLP
11 Greenway Plaza, Suite 1515
Houston, TX 77046
Tel: (713) 621-2277
Fax: (713) 621-0993
E-mail: rprieto@eeoc.net
marbuckle@eeoc.net
CENTRAL SQUARE: Oklahoma Court Denies Doughty's Motion to Strike
----------------------------------------------------------------
The U.S. District Court for the Western District of Oklahoma denies
the Plaintiff's Motion to Strike in the lawsuit entitled LAURA
DOUGHTY, individually and on behalf of all similarly situated
persons, Plaintiff v. CENTRAL SQUARE TECHNOLOGIES, LLC, et al.,
Defendants, Case No. CIV-20-500-G (W.D. Okla.).
In her Motion, the Plaintiff states that on Nov. 4, 2020, she
received an offer of judgment from the Defendant. She criticizes
the timing, intent, and content of this offer on various grounds
and requests that the Court "strike" the Offer and award the
Plaintiff her attorney's fees incurred in bringing the Motion to
Strike, citing Nayfa v. Papa's Leatherbarn, LLC, No. CIV-10-80-W,
2010 WL 11451122 (W.D. Okla. July 6, 2010).
The Court notes that the Plaintiff did not explain what she means
by "strike." The Court presumes that the Plaintiff seeks a ruling
that the Offer is not a valid "unaccepted offer" for cost-shifting
purposes under Federal Rule of Civil Procedure 68(d).
The Defendant responds that its offer complies in every respect
with Rule 68 of the Federal Rules of Civil Procedure and that
current case law casts doubt on the Court's ability to strike a
Rule 68 offer of judgment. The Defendant further represents that
the Offer was presented in good faith, such that there is no basis
for the imposition of a fee-award sanction.
Having reviewed the parties' filings, the Court rejects the
Plaintiff's argument that striking the Offer as improper is
required under Nayfa. Contrary to the Plaintiff's repeated
assertions, Nayfa--a single decision from a fellow District Judge
of this Court--is not "controlling" or the "prevailing law" on this
unrelated matter, District Judge Charles B. Goodwin opines.
Further, the written decision in Nayfa explicitly circumscribed its
ruling to "the limited circumstances" of that case, highlighting
that the case law with respect to Rule 68 offers in putative class
actions is "unsettled" and "the subject of some debate," Judge
Goodwin points out.
Even assuming a Rule 68 offer of judgment may be stricken, the
Court sees no cause to do so here. Regardless of whether the
Defendant's Offer specifically addresses the Complaint's request
for injunctive relief, it is "an offer to allow judgment on
specified terms," which is all that Rule 68 requires, Judge Goodwin
finds. He adds that the timing of the Offer does not clearly evince
any bad faith on the part of the Defendant.
The Defendant has presented a reasonable, nonfrivolous basis for
addressing the putative Norman subclass in the Offer but omitting a
remedy as to the putative nationwide class, Judge Goodwin notes.
And while courts have noted the conflict that the extension of a
Rule 68 offer of judgment by a defendant may create for a putative
class representative, the Plaintiff only vaguely suggests such a
conflict here, and the Tenth Circuit Court of Appeals has
recognized that Rule 68 offers are generally applicable in class
actions, Judge Goodwin holds, citing Shaw v. Jones, No.
CIV-19-1343, 2020 WL 2296743, at *3 (D. Kan. May 7, 2020).
Accordingly, neither striking the Offer nor assessing attorney's
fees against the Defendant is warranted, Judge Goodwin holds.
As outlined, the Plaintiff's Motion to Strike is denied.
A full-text copy of the Court's Order dated July 1, 2021, is
available at https://tinyurl.com/2yt9udau from Leagle.com.
CESAPHE: Faces Fraud, Breach of Contract Suit Over COVID-19 Refunds
-------------------------------------------------------------------
Victor Fiorillo, writing for City Life, reports that when it comes
to the wedding business in Philadelphia, there's no bigger player
than Cescaphe. The locally based wedding and special-events company
hosts glitzy ceremonies and receptions for anywhere from 150 to 600
guests at its six venues all over town, from the Lucy on South
Broad Street to Water Works in Fairmount Park to its flagship
location, the Cescaphe Ballroom in Northern Liberties. But now,
Cescaphe finds itself the subject of a class-action lawsuit filed
over the company's refund policies amid COVID -- an issue that has
plagued the wedding and event-planning business all over the
country for many months.
In October 2018, back when we were all going about our "normal"
lives, Michael Randall proposed to Molly Moskowitz, his college
sweetheart, at a Halloween party where they were dressed as Game of
Thrones characters. Moskowitz said yes, and within a week or so,
the pair had booked a tented outdoor wedding with Cescaphe at Water
Works, "site of many of Philadelphia's grandest affairs," as the
company describes it. The 200-plus guests would be treated to a
champagne bar with fresh raspberries, chilled seafood and sushi
stations, a "Viennese dessert display," and butlered hors
d'oeuvres, among other "lavish appointments." The couple paid a
$5,000 deposit.
There was just one problem: the wedding date. Moskowitz and Randall
were to celebrate their nuptials on June 12, 2020. But it turned
out that nobody was having a 200-person wedding in Philadelphia in
June of 2020. The COVID vaccine had yet to be deployed, and a
200-person outdoor gathering (or even a much smaller one) would
have been illegal.
According to the allegations contained in the federal class-action
lawsuit recently filed by the couple against Cescaphe, this is when
things started to go downhill. The lawsuit claims that Cescaphe
engaged "in fraudulent and deceptive conduct by misconstruing and
misstating the terms of the contracts" in an effort to avoid
returning their deposit.
The agreement between the couple and Cescaphe clearly states that
the $5,000 deposit would "guarantee" the date they wanted. Of
course, that agreement also clearly states that the $5,000 deposit
was non-refundable.
But the agreement also included the force majeure language found in
most contracts — a clause that can be used to release all parties
from an agreement in the event of an "act of God" or other extreme
circumstance that makes it "illegal or impossible" to fulfill said
agreement. As Moskowitz and Randall saw it, the deposit should have
been refunded, since it was impossible to have a wedding of any
reasonable size on the date Cescaphe had guaranteed them.
According to the lawsuit, though, Cescaphe allegedly proceeded to
claim that the $5,000 deposit wasn't a deposit at all, in spite of
the fact that the contract, which Philly Mag has reviewed (along
with several other contracts, which read the same), literally
called it a "deposit." Nor was it to hold any date, Cescaphe
claimed, in spite of the fact that the contract said otherwise; it
was an "event planning fee" that the company could keep. In the
lawsuit, the couple contends that Cescaphe pressured them and other
couples to reschedule their events for later dates, telling them
that available dates were growing slim and that they might be
forced to have a weekday wedding.
In the early days of June 2020, in response to this pressure and
Cescaphe's position that it wouldn't be returning the $5,000,
Moskowitz and Randall chose May 7, 2021, as their new wedding date.
Due to availability issues, their wedding was relocated from
outdoors at Water Works to indoors at Cescaphe Ballroom.
In September 2020, the couple decided that wasn't going to work,
either. They then canceled their Cescaphe event. "We have made the
difficult decision to postpone our wedding again," the couple later
wrote in a note to guests. "The restrictions in the city of
Philadelphia have not lifted enough yet for us to have our
wedding." (It should be noted that May 7, 2021, wound up being
prior to the city lifting the restrictions that would have allowed
an event like their wedding to move forward. A non-Cescaphe wedding
reception will now be held at the Bellevue in June 2022.)
The couple has tried to get Cescaphe to return the $5,000, but to
no avail. On May 25th of this year, the couple's attorney, Ken
Chotiner, fired off a letter to Cescaphe insisting the company hand
over that $5,000. Cescaphe's lawyers shot a letter right back,
saying, "There will be no refund."
In the letter, the lawyers claim that Cescaphe did a bunch of work
for that $5,000, including conducting an in-person meeting with the
couple to go over menu options, making arrangements for a block of
hotel rooms, and "floral coordination" with popular Philadelphia
floral design company Beautiful Blooms.
About a month after Cescaphe's lawyers sent that letter, Moskowitz
and Randall filed their class-action suit in Philadelphia's federal
court, accusing Cescaphe of fraud, breach of contract, and
violations of Pennsylvania's consumer protection laws. They filed
the suit on behalf of themselves and what they claim are more than
1,000 other Cescaphe clients potentially affected by the company's
acts, making the amount in controversy possibly $5 million or
more.
On June 28th, just four days after the suit was filed, Cescaphe's
lawyers sent a second letter to Chotiner. In that letter, the
lawyers accuse Chotiner of filing the lawsuit in an effort to
"harass" and "strong arm" Cescaphe into returning the $5,000. The
letter calls the suit "frivolous" and states that the attorneys
intend to seek sanctions against Chotiner for even filing it.
The letter also argues that federal court isn't the proper place
for the couple to air their grievances, referring back to that
original agreement they made with Cescaphe in 2018. That contract
contains a standard but growingly controversial forced arbitration
clause, which says that any disputes must be resolved through
arbitration, not through lawsuits.
But contracts and arbitration agreements aren't always as
cut-and-dried as they might seem, and it will be up to the judge in
the federal suit to rule on a motion filed by Cescaphe's attorneys
to dismiss the case and compel arbitration. On Tuesday afternoon,
Chotiner told Philly Mag he intends to file a response in court
that will explain why the arbitration clause is unenforceable.
Meanwhile, six other couples in a similar position to Moskowitz and
Randall recently took to Philadelphia's Common Pleas Court to ask a
judge to allow them to combine their individual arbitration cases
over Cescaphe wedding deposit refunds, along with refunds for other
types of events. That action was filed by Penn Valley attorney Todd
Lasky, who, along with his wife, is also a plaintiff in the case.
In that court filing, which pointed out that Cescaphe received more
than $4 million in PPP funding over the past year, the couples
argued that with amounts in dispute ranging from $5,000 to $6,000
per couple and an estimated cost per couple for arbitration
representation of $2,500 to $3,000, it wouldn't make financial
sense for them to pursue arbitration individually if the cases were
heard separately.
The filing also alleged that Cescaphe has granted refunds in select
cases, but only to couples who agreed to sign confidentiality
agreements. (When asked for comment on this particular allegation,
a Cescaphe spokesperson didn't address it specifically but wrote in
response: "Our policy has been consistent for years. Our earned
planning fee is only returned in extenuating circumstances like a
death, a severe illness or military deployment.")
Just as they did in the Moskowitz-Randall case, lawyers for
Cescaphe stated in court documents that some or all of the couples
seeking relief in Common Pleas Court had already received services
for their $5,000 or $6,000 deposits.
On July 12, the judge hearing the request to join the arbitration
cases denied it. The federal case continues.
"As the region's largest wedding provider, we continuously strive
to create and deliver dream weddings and events," wrote a publicist
for Cescaphe in a statement to Philly Mag. "Our team has worked
tirelessly with all individuals impacted by the pandemic to develop
the best solutions for them -- rescheduled weddings, micro
weddings, or other future events. It is disappointing to see less
than two percent of our impacted customers try to take advantage of
a small business. An objective review of the facts shows that we
acted honorably and justly toward our customers -- as we have for
the last 20 years and will continue to do." [GN]
CG CONSULTING: Partial Grant of Ousley's 3rd Amended Suit Endorsed
------------------------------------------------------------------
In the lawsuit styled ALICIA OUSLEY, Plaintiff v. CG CONSULTING,
LLC, et al., Defendants, Case No. 2:19-cv-1744 (S.D. Ohio),
Magistrate Judge Kimberly A. Jolson of the U.S. District Court for
the Southern District of Ohio, Eastern Division, recommended that
the Plaintiff's Motion for Leave to File Third Amended Complaint be
granted in part and denied in part.
The matter is before the Court on the Plaintiff's Motion for Leave
to File Third Amended Complaint.
Background
The Plaintiff, a former employee at Defendant CG Consulting, LLC,
d/b/a Scores Columbus, filed the instant action on May 2, 2019,
alleging a number of claims relating to the conditions of her
employment. The first complaint named two Defendants: Scores and
Jose Canseco, the general manager at Scores during the relevant
time period. While Scores was properly served, Jose Canseco was
not. So the Court directed the Plaintiff to show cause why this
action should not be dismissed as to Defendant Canseco and why an
extension of time to effect service should be allowed. The
Plaintiff responded to the show cause order on Sept. 18, 2019, and
the Court granted her an extension of time to serve Defendant
Canseco.
In the interim, the parties filed their Rule 26(f) Report and
agreed that "any motion to amend the pleadings or to join
additional parties shall be filed by November 15, 2019." The Court
adopted the proposed deadlines and issued a scheduling order. In
December 2019, the Plaintiff successfully served Defendant Canseco,
and he later answered. In the months that followed, Scores retained
new counsel, and the January 2020 mediation deadline was vacated.
Given the time elapsed, the parties moved to vacate the existing
case schedule and proposed amended case deadlines, which the Court
adopted. Notably, the amended case schedule did not change the
previously set amendment deadline.
On Aug. 17, 2020, the Plaintiff moved to amend her Complaint to add
new factual allegations, two new Defendants, and more claims on
behalf of herself and similarly situated hourly tipped employees
from the two years preceding the filing of her original complaint.
The Court granted the unopposed Motion. Several months later, the
Plaintiff again moved to amend after determining that her "claims
related to unpaid minimum wages and other compensation under the
Fair Labor Standards Act ("FLSA") were appropriate for collective
action proceedings pursuant to 29 U.S.C. Section 216(b)."
Additionally, the Plaintiff sought to clarify several of her FLSA
claims and add a state-law claim for minimum wage violations.
Again, the Defendants did not oppose the Plaintiff's Motion, and
the Court granted her leave to amend a second time.
The Plaintiff then moved for conditional class certification, which
the Court granted, taking into account that the Defendants' only
opposition was to remove the word "dancer" from the Plaintiff's
proposed Notice. The next month, the Plaintiff filed a Motion for
an Order to Show Cause for the Defendants' failure to provide an
FLSA Class List as prescribed by the Court's previous Order. After
a status conference with the Court, the Plaintiff's Motion was
granted in part, and Defendants were ordered to produce the
complete FLSA Class List. With the dispute resolved, the parties
progressed with discovery.
Now the Plaintiff requests leave to file a Third Amended Complaint.
She seeks to add Michael Starkey and Josh Votaw, two security
guards formally employed by the Defendants, as Named Plaintiffs.
She also aims to add additional claims related to the conditions of
Starkey's and Votaw's employment with the Defendants. She argues
that "good cause exists under Rule 16(b) and Rule 15(a) based on
information exchanged in discovery, further development of the
claims based on that information, and further consultation with the
Named and Opt-In Plaintiffs."
Similarly, the Plaintiff argues that this Third Amended Complaint
should relate back to the date of the original complaint as the
claims asserted arise out of the same conduct, transaction, or
occurrence set out or attempted to be set out in the Complaint,
pursuant to Fed.R.Civ. P. 15(c)(1)(B)-(C).
The Defendants oppose, arguing that the Plaintiffs have failed to
act in a diligent manner, in good faith, and the proposed
amendments would be futile. The Court expedited briefing on the
Plaintiff's Motion, which is now ripe for consideration.
Discussion
As noted, the Court must first decide whether the Plaintiff has
shown good cause under Rule 16(b) before turning to Rule 15(a)'s
more generous standard.
Judge Jolson holds that the Plaintiff has shown good cause. The
Plaintiff contends that she has demonstrated "good cause" under
Rule 16(b) because the factual basis supporting her proposed
amendment was not disclosed until after the deadline to amend. Once
the Defendants disclosed this document, the Plaintiff identified
the opt-in Plaintiffs--specifically Votaw and Starkey--who then
filed their Notices of Consent to Join on Jan. 25, 2021, and March
15, 2021, respectively.
While the parties dispute when the Plaintiff discovered the
information underlying her Third Amended Complaint, the timeline
shows that the Plaintiff was diligent enough, Judge Jolson opines,
citing Woods v. FacilitySource, LLC, No. 2:13-cv-621, 2014 WL
1783942, at *2 (S.D. Ohio May 5, 2014). Indeed, the Court has no
reason to doubt the Plaintiff's representations about the efforts
she undertook.
Additionally, a review of the Third Amended Complaint shows that
the Proposed Named Plaintiffs and their corresponding claims are
sufficiently related to those claims already asserted, Judge Jolson
notes. So amendment will not require the Defendants to incur
significant additional costs in discovery or to develop a new
litigation strategy.
Thus, pursuant to its "broad discretion in deciding motions for
leave to amend," the Court finds that the Plaintiff has exercised
diligence and any prejudice will be light. Thus, Rule 16(b)'s good
cause requirement is satisfied.
Turning to Rule 15(a), the Court finds the Plaintiff has partially
satisfied this standard. The Court finds no evidence of bad faith
or dilatory motive on the Plaintiff's part. And while she has
previously moved to amend twice, this is not a situation where
there have been repeated failures to cure deficiencies by
amendments previously allowed, Judge Jolson notes.
As detailed, the Plaintiff moved to amend after discovering new
information and the Defendants did not oppose the Plaintiff's two
previous Motions to Amend. Thus, the Court easily concludes that
the Plaintiff's conduct does not prevent amendment here.
Futility, however, requires more consideration, Judge Jolson
states. The Defendants contend that "all of Plaintiff's asserted
claims are barred by the two-year limitations period under both
federal and state law," and therefore this is a "classically futile
amendment."
Judge Jolson finds that the Defendants are only partially correct.
The Third Amended Complaint alleges federal claims under the FLSA,
as well as state law claims for minimum wage violations, unpaid
overtime, and untimely payment. Each claim is subject to a
different statute of limitations and must be considered
separately.
Judge Jolson notes that Votaw and Starkey worked for the Defendants
until August 2018, and both opted in by March 15, 2021.
Importantly, they have alleged willful violations, which mean they
have satisfied the three-year limitations period. Notably, the
Defendants do not argue that the alleged violations were not
willful. And at this stage, the Court's role is to evaluate only
whether the futility of an amendment is so obvious that it should
be disallowed.
The Proposed Named Plaintiffs' minimum wage violation claims under
state law are also timely, Judge Jolson notes. There is a
three-year statute of limitations for minimum wage violations as
proscribed by Article II, Section 34a of the Ohio Constitution.
O.R.C. Section 4111.14(K). Thus, for these reasons, the Proposed
Named Plaintiffs' minimum wage violation claims are not obviously
futile.
But the same is not true for Proposed Named Plaintiffs' two
remaining state-law claims for unpaid overtime and untimely
payment. Judge Jolson finds. The Defendants employed the Proposed
Named Plaintiffs until August 2018. So they would have had to file
their opt-in notices by August 2020 at the latest. Yet, they did
not do so until early 2021. So their claims for unpaid overtime and
untimely payment are time barred. And where a proposed amended
claim is barred by the applicable statute of limitations, such a
claim is futile, Judge Jolson holds.
To avoid this result, the Proposed Named Plaintiffs argue that the
Third Amended Complaint should relate back to the date of the
original complaint. This argument, however, is meritless, Judge
Jolson points out.
Here, the Proposed Named Plaintiffs are not seeking to correct any
mistake, error or misdescription; thus, they cannot rely on Rule
15(c)(1)(C). Because their state-law claims for unpaid overtime and
untimely payment do not relate back, they are time barred.
Accordingly, it is recommended that the Proposed Named Plaintiffs'
request that their claims relate back to the original filing date
be denied as futile.
Conclusion
For these reasons, it is recommended that the Plaintiff's Motion be
granted in part and denied in part. Should the District Judge adopt
this R&R, it is ordered that the Plaintiff file a Third Amended
Complaint seven days from the date of adoption, omitting Counts XI,
XII--or any claim arising under O.R.C. Sections 4113.15, 4111.03.
Further, if this R&R is adopted, the parties are ordered to submit
a revised case schedule within 14 days from the date of adoption,
setting forth revised deadlines relating to discovery, Rule 23
Class Certification, and dispositive motions. While this R&R pends,
discovery will proceed.
Procedure on Objections
If any party objects to this Report and Recommendation, that party
may, within 14 days of the date of this Report, file and serve on
all parties written objections to those specific proposed findings
or recommendations to which objection is made, together with
supporting authority for the objection(s). A judge of this Court
will make a de novo determination of those portions of the report
or specified proposed findings or recommendations to which
objection is made.
Upon proper objections, a judge of this Court may accept, reject,
or modify, in whole or in part, the findings or recommendations
made herein, may receive further evidence or may recommit this
matter to the magistrate judge with instructions. 28 U.S.C. Section
636(b)(1). Failure to object to the Report and Recommendation will
result in a waiver of the right to have the district judge review
the Report and Recommendation de novo, and also operates as a
waiver of the right to appeal the decision of the District Court
adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S.
140, 152-53 (1985).
A full-text copy of the Court's Report and Recommendation and Order
dated July 1, 2021, is available at https://tinyurl.com/b48v32su
from Leagle.com.
CHEMFAB ALKALIS: PFAS Contamination Class Action Pending
--------------------------------------------------------
Shaun Robinson, writing for VTDigger, reports that almost three
years after high levels of PFAS were detected at a closed landfill
in South Hero, officials still don't know where the toxic chemicals
at the site came from.
In December, a monitoring well at the landfill showed about 3,570
parts per trillion of PFAS -- much higher than the state's safe
standard for drinking water, which is 20 ppt. The chemicals have
not been detected in drinking water supplies near the site.
James "Buzz" Surwilo, an environmental analyst with the state's
solid waste program, said it is "really surprising" to find this
level of PFAS contamination in a rural landfill, since the
chemicals are more common at sites with commercial or industrial
waste.
"Where this has come from is really anybody's guess," he said.
Per- and polyfluoroalkyl substances, or "PFAS," are a family of
thousands of chemicals sometimes called "forever chemicals" because
they do not break down naturally in the environment.
PFAS are linked to health effects including cancer, behavioral and
developmental problems in infants and children, fertility and
pregnancy problems, and immune system problems.
Vermont regulates the level of five specific PFAS in its drinking
water -- PFOA, PFOS, PFHxS, PFHpA and PFNA. Any combination greater
than 20 ppt is considered toxic.
Officials monitor many closed landfills for PFAS and calculate each
site's sum of those five chemicals, if any are detected. The 3,570
ppt reading in South Hero is the current highest at any closed
landfill in the state, according to data reviewed by VTDigger.
Since 2016, one or more monitoring wells at 20 closed landfills
reported PFAS levels above the state's safe standard for drinking
water, Department of Environmental Conservation data shows. Some
reports did not reveal exact levels of certain chemicals, so the
total could be higher.
A second monitoring well at the South Hero site reported about 500
ppt of PFAS in December, according to the data.
Surwilo said the state began monitoring closed landfills for PFAS
after the chemicals were found in Bennington drinking water wells
near two former ChemFab factories in 2016. The discovery spurred
local outrage, and a class-action lawsuit followed.
In March 2020, PFAS were also found in the groundwater near the
Vermont Air National Guard Base in South Burlington. The
contamination was mostly due to the use of now-banned firefighting
foam, according to a draft report.
PFAS can be found in a number of consumer products as well,
including food packaging, nonstick cookware, cosmetics and
water-resistant clothing.
David Carter, chair of South Hero's Selectboard, said the landfill
closed in the 1990s. No locals remember any manufacturing in the
area that could have produced toxic waste, he said -- so there's a
chance the contamination is from household products.
Last month, engineers installed additional monitoring wells to see
if contaminated groundwater is migrating beyond the landfill site.
The surrounding land has shallow bedrock, Surwilo said, which makes
it difficult to reach groundwater for testing
"We just need more information to figure out what's going on," he
said. [GN]
COINBASE GLOBAL: Faces Suit Over Misleading Sweepstakes Advertising
-------------------------------------------------------------------
David O. Klein, Esq., of Klein Moynihan Turco LLP, in an article
for Mondaq, reports that a class action lawsuit has been brought
against Coinbase Global, Inc. ("Coinbase") and Marden-Kane, Inc.
("MKI") (collectively the "Plaintiffs") for allegedly engaging in
false, deceptive and misleading sweepstakes advertising. Coinbase,
one of the largest online cryptocurrency exchanges, hired MKI to
design, market and execute a $1.2 million "Dogecoin Sweepstakes,"
beginning on June 3, 2021.
The complaint alleges that in order to enter the sweepstakes, users
had to buy or sell $100 in Dogecoin by June 10, 2021, for a chance
to win a cash prize. Although they did provide an alternative, free
means of entry, or AMOE, it is also alleged that Plaintiffs
specifically designed their email and website advertising to
prevent users from finding the AMOE information. The class is
claiming that if the AMOE option had been disclosed properly to
them, they would not have given Coinbase $100, or paid Coinbase any
commission to acquire Dogecoins.
The "Dogecoin Sweepstakes" is yet another example of how
sweepstakes advertising claims may lead to litigation and cause
reputational harm.
What are some sweepstakes advertising best practices?
Sweepstakes Advertising
Typically, the goal of sweepstakes advertising is to generate
excitement among consumers and increase company revenue. Whether it
is the McDonalds Monopoly sweepstakes or Publishers Clearing House
offering cash for life, businesses must adhere to state and federal
laws, rules and regulations when sponsoring sweepstakes
promotions.
In the case at hand, some consumers felt that they were misled in
how Coinbase marketed its sweepstakes promotion.
Failing to include certain necessary disclaimers and disclosures
can land your sweepstakes contest in hot water. Some specific
disclosures that all sweepstakes promotions should include are:
-- language explaining that no purchase is necessary for entry,
and that any such purchase will not increase the consumer's odds
of winning a prize;
-- start and end dates;
-- eligibility requirements, such as minimum age and states
where entry is prohibited; and
-- the odds of winning a prize.
Placing the aforementioned disclaimers and disclosures in a
prominent location in sweepstakes advertising are necessary steps
in running a compliant sweepstakes promotion.
Additional Compliance
Depending on jurisdiction, registration and bonding may be required
prior to commencing a sweepstakes promotion. For example, in
Florida and New York, sweepstakes that have an aggregate prize
value in excess of $5,000 must be registered and bonded. In Rhode
Island, the prize threshold for registration is $500, but there is
no bonding requirement and registration only applies to contests
conducted by brick-and-mortar businesses in connection with a
retail outlet.
After selecting a winner, the sweepstakes sponsor must notify the
winning entrant(s). The winner(s) may be required to complete an
affidavit of eligibility, any applicable tax forms, and a publicity
release. Prize winners should not be charged fees to claim their
prizes, including any shipping or handling. In addition, certain
state agencies require that an official winners' list be filed
within a statutorily defined period of time after prizes have been
awarded.
Consult a Sweepstakes Attorney
Sweepstakes advertising is a highly regulated area that may appear
simple at first blush. Unfortunately, as many sweepstakes sponsors
have learned throughout the years, this is anything but the case.
As such, businesses should seek counsel before running any
sweepstakes promotion in order to avoid the many regulatory and
legal pitfalls that await them. [GN]
COLIN LEMAHIEU: Otto Class Action Voluntarily Dismissed
-------------------------------------------------------
In the class action lawsuit captioned as ALEC OTTO v. COLIN
LEMAHIEU, ET AL., Case No. 4:19-cv-00054-YGR (N.D. Cal.), the Hon.
Judge Yvonne Gonzalez Rogers entered an order accepting the
plaintiff's withdrawal of his motion for class certification and
tentatively granting the motion for voluntary dismissal with
prejudice pending resolution of the Section 27(c) issue.
The Court said, "Nano Defendants shall file its opening brief
detailing its position on whether sanctions are appropriate by July
27, 2021. The Plaintiff shall respond by August 10, 2021. The Nano
Defendants shall file a reply by August 17, 2021. The opening brief
and response shall be limited to 15 pages, and the reply to 10
pages. The Court anticipates resolving the issue on the papers.
The Plaintiff Alec Otto brings this putative class action against
the defendants Nano, Colin LeMahieu, Mica Busch, Zack Shapiro, and
Troy Retzer for securities fraud and related claims in connection
with the defendants' promotion of
and statements regarding a cryptocurrency or digital asset referred
to as NANO f/k/a RaiBlocks.
A copy of the Court's order dated July 15, 2021 is available from
PacerMonitor.com at https://bit.ly/3x1dXkW at no extra charge.[CC]
COLONIAL PIPELINE: Squire Patton Attorneys Discuss Class Action
---------------------------------------------------------------
Kristin L. Bryan, Esq., and Dan Lonergan, Esq., of Squire Patton
Boggs (US) LLP, in an article for The National Law Review, report
that CPW covered the Colonial Pipeline cyberattack earlier this
year, in which a ransomware attack carried out by cybercriminals
crippled the Colonial Pipeline's functionality. The Pipeline was
taken offline as a remedial measure, causing significant gasoline
shortages across the Eastern United States (as a reminder, the
Colonial Pipeline supplies the east coast of the United States with
gasoline. The pipeline is a critical part of U.S. petroleum
infrastructure, transporting around 2.5 million barrels per day of
gasoline, diesel fuel, heating oil and jet fuel. It stretches 5,500
miles and carries nearly half of the East Coast's fuel supply).
In the wake of the cyberattack, owners of the Colonial Pipeline
were hit with a putative class action that was filed in federal
court in Georgia. Dickerson v. CDCP Colonial Partners, L.P., Case
No. 1:21-cv-02098 (N.D. Ga.). Plaintiffs in Dickerson alleged that
the owners of the Colonial Pipeline failed "to properly secure the
Colonial Pipeline's critical infrastructure – leaving it
subjected to potential ransomware attacks like the one that took
place on May 7, 2021." Plaintiffs allege that the Defendants
"failed to implement and maintain reasonable security measures,
procedures, and practices appropriate to the nature and scope of
[Defendants' business operations]" (emphasis supplied).
The end of last month, a second putative class action complaint was
filed concerning the Colonial Pipeline attack, EZ Mart 1, LLC v.
Colonial Pipeline Company, Case No. 1:21-cv-02522 (N.D. Ga.). As in
the previous suit, we again see an allegation that the Defendants
"failed to implement and maintain reasonable security procedures
and practices appropriate to operating the Pipeline" (emphasis
added). This is raised in the context of an alleged "duty to adopt
reasonable measures to ensure the continued and uninterrupted
operation of the Pipeline," as the "Pipeline is essential
infrastructure and a vital artery for the distribution of fuel to
most of the eastern United States."
In this case, Plaintiff here seeks to certify a class action "on
behalf of the more than 11,000 gas stations negatively impacted by
the Ransomware Attack" that "experienced a fuel shortage, an
increase in price paid for gasoline, or an inability to sell fuel
to their customers as a result of the Ransomware Attack." And
again, just like in Dickerson, the damages claimed arise not from
the exposure of private information, but from increased gas prices
caused by the pipe shutdown. Is the start of a trend casting
consumer pricing class actions in the framework of a cybersecurity
incident by plaintiffs lawyers? Time will tell.
This case raises the difficult questions for the Plaintiff looming
in Dickerson (standing, whether a duty was owed, issues of
causation). Still, these cases could have a major impact on the
future of data privacy/cybersecurity litigation, and it will be
important to keep an eye on any major developments. [GN]
CONCORD STATION: Faces Mallory FDCPA Suit in M.D. Florida
---------------------------------------------------------
A class action lawsuit has been filed against Concord Station, LLP,
et al. The case is captioned as Mallory v. Concord Station, LLP, et
al., Case No. 8:21-cv-01626-VMC-TGW (M.D. Fla., July 6, 2021).
The case is assigned to the Hon. Judge Virginia M. Hernandez
Covington. The suit alleges violation of the Fair Debt Collection
Practices Act involving consumer credit. The suit demands $1
million in damages.
The Defendants include Concord Station, LLP, a Florida limited
liability Partnership, as the Pre-Transfer Club Owner of Concord
Station Club; Association Law Group, P.L., a Florida limited
liability company; and BAS-ALG, LLC, a Florida limited liability
company.[BN]
The Plaintiff is represented by:
Bryant Dunivan, Jr., Esq.
OWEN & DUNIVAN, PLLC
615 E. De Leon St.
Tampa, FL 33606
Telephone: (813) 502-6768
Facsimile: (813) 330-7924
E-mail: bdunivan@owendunivan.com
CRISP MARKETING: Appeals Ruling in Batista TCPA Suit to 11th Cir.
-----------------------------------------------------------------
Defendants Crisp Marketing, LLC, et al., filed an appeal from a
court ruling entered in the lawsuit styled Lisa Batista v. Crisp
Marketing, LLC, et al., Case No. 0:21-cv-60217-AHS, in the U.S.
District Court for the Southern District of Florida.
The lawsuit is brought over alleged violations of the Telephone
Consumer Protection Act.
The Defendants are seeking a review of the Court's order denying
their joint motion to compel arbitration.
The briefing schedule in the Appellate Case states that:
-- The appellant's brief is due on or before August 10, 2021;
-- Appellee's brief is due on or before August 2, 2021;
-- The appendix is due no later than 7 days from the filing of
the appellant's brief;
-- Appellant's Certificate of Interested Persons was due July
15, 2021 as to Appellant's; and
-- Appellee's Certificate of Interested Persons is due on or
before July 29, 2021 as to Appellee Lisa Batista.[BN]
Defendants-Appellants CRISP MARKETING, LLC, a Florida limited
liability company; and MOBILEHELP, LLC, a Delaware limited
liability company, are represented by:
Artin Betpera, Esq.
BUCHALTER, A PROFESSIONAL CORPORATION
18400 Von Karman Ave Ste 800
Irvine, CA 92612
Telephone: (949) 760-1121
- and -
Michael Peter De Simone, Esq.
LOCKE LORD, LLP
777 S Flagler Dr Ste 215E
West Palm Beach, FL 33401
Telephone: (561) 833-7700
Plaintiff-Appellee LISA BATISTA, on behalf of herself and others
similarly situated, is represented by:
Avi Robert Kaufman, Esq.
CARLTON FIELDS, PA
700 NW 1st Ave Ste 1200
Miami, FL 33136-4118
Telephone: (305) 530-0050
- and -
Rachel Elizabeth Kaufman, Esq.
LASH & GOLDBERG, LLP
100 SE 2nd St Ste 1200
Miami, FL 33131
Telephone: (305) 347-4040
CVS HEALTH: Judge Expands Generic Drug Overcharging Class Action
----------------------------------------------------------------
James Albert, writing for Fintech Zoom, reports that a federal
judge has agreed to expand the number of CVS Health customers
covered by a class action lawsuit accusing the pharmacy chain of
systematically overcharging people who bought generic drugs using
insurance rather than cash.
U.S. District Judge Yvonne Gonzalez Rogers in Oakland, California,
on July 16 certified classes of CVS customers from New York and
Arizona after previously allowing residents of four other states to
proceed together on a class-basis. [GN]
DENTRUST DENTAL: Fails to Pay Proper Wages, Dehoyos Alleges
-----------------------------------------------------------
ANGELICA DEHOYOS, individually and on behalf of all others
similarly situated, Plaintiff v. DENTRUST DENTAL INTERNATIONAL,
INC. d/b/a DOCS HEALTH; DENTRUST DENTAL TEXAS, P.C., and STAFFDR,
INC., Defendants, Case No. 4:21-cv-02217 (S.D. Tex., July 8, 2021)
seeks to recover from the Defendants unpaid wages and overtime
compensation, interest, liquidated damages, attorneys' fees, and
costs under the Fair Labor Standards Act.
Plaintiff Dehoyos was employed by the Defendants as COVID testing
and vaccination workers.
DENTRUST DENTAL INTERNATIONAL, INC. d/b/a DOCS HEALTH was founded
in 1996. The company's line of business includes offices and
clinics of dentists. [BN]
The Plaintiff is represented by:
Josef F. Buenker, Esq.
THE BUENKER LAW FIRM
2060 North Loop West, Suite 215
Houston, TX 77018
Telephone: (713) 868-3388
Facsimile: (713) 683-9940
E-mail: jbuenker@buenkerlaw.com
DETROIT, MI: Gross Pointe Park Families Join Flooding Class Suit
----------------------------------------------------------------
ClickOnDetroit reports that nearly a dozen families in Grosse
Pointe Park have joined a class action lawsuit that demands money
and answers for why the flooding was so severe.
It's estimated that hundreds of dollars of damage was caused to
their homes by the wastewater.
The lawsuit -- expected to be filed in the Wayne County Circuit
Court -- aims to pursue damage claims against local authorities and
the Detroit Water and Sewerage Department, which Grosse Pointe Park
city officials blamed for the flooding.
It's been about three weeks since the flooding and the streets of
Grosse Pointe Park still have trash on the side of the road --
drywall, Halloween decorations, baby equipment and more.
One of the lawyers on the lawsuit is also a victim of the floods --
Grosse Pointe Park resident Paul Doherty. Sewerage and storm runoff
mixed together and flooded his home. He said it was between 8-9
feet deep.
"It looked, my basement door was like looking into a brown swimming
pool," Doherty said. "Literally geysers up from the storm drains in
the basement."
Doherty works with the Ven Johnson Law firm, which points to the
issues that impacted the Conner Creek Pump Station in Detroit and
the Freud Street Containment Facility as the problem. They're both
owned by the Great Lakes Water Authority (GLWA), but they're also
suing the cities of Detroit and Grosse Pointe Park because their
pumps didn't work when they should have.
They're claiming their clients had their property taken, their
homes were subject to trespass and gross negligence.
Doherty said he spent a week in a hotel and he's still drying out
his house.
"I am without hot water, a washing machine and without air
conditioning," Doherty said.
Those who have been impacted from the storm have until Aug. 8 to
file damage claims with their local municipality. You can report
the damages here.
The GLWA released the following statement on July 14:
"At its meeting [July 14], the Great Lakes Water Authority Board of
Directors formed an Ad Hoc Committee from which it will lead the
Board's independent investigation of GLWA's response to the June
25-26, 2021, rain event. The Ad Hoc Committee will include John
Zech, the Board representative appointed by Wayne County, Brian
Baker, the Board representative appointed by Macomb County and Gary
Brown, one of the two Board representatives appointed by the city
of Detroit. One of the committee's first actions will be to hire an
engineering firm and a legal firm to assist them in their review."
Michelle A. Zdrodowski, chief public affairs officer
A statement from the city of Grosse Pointe Park reads
"The City's pumps and infrastructure worked correctly and as
intended during the rain event. At this point, it is our
understanding that the Detroit Water and Sewerage Department and/or
Great Lakes Water Authority experienced several failures with their
systems during the rain event that caused various levels of damage
to many of our residents. We are continuing to engage in an
exhaustive investigation and evaluation of this event. When
additional information is available to us, we will share it with
our residents, and welcome further discussion after a full
investigation is complete. The City is also committed to developing
long term solutions to the issue with its regional partners and to
assisting the City's residents recovering from the damage caused."
Nick Sizeland, Grosse Pointe Park city manager [GN]
DIDI GLOBAL INC: Faces Espinal Suit Over Drop in Share Price
------------------------------------------------------------
RAFAELA ESPINAL, individually and on behalf of all others similarly
situated, Plaintiff v. DIDI GLOBAL INC. F/K/A XIAOJU KUAIZHI INC.;
WILL WEI CHENG; ALAN YUE ZHUO; JEAN QING LIU; STEPHEN JINGSHI ZHU;
ZHIYI CHEN; MARTIN CHI PING LAU; KENTARO MATSUI; ADRIA PERICA;
DANIEL YONG ZHANG; GOLDMAN SACHS (ASIA) L.L.C.; MORGAN STANLEY &
CO. LLC; J.P. MORGAN SECURITIES LLC; BOFA SECURITIES; INC.;
BARCLAYS CAPITAL INC.; CHINA RENAISSANCE SECURITIES (HONG KONG)
LIMITED; CHINA INTERNATIONAL CAPITAL CORPORATION HONG KONG
SECURITIES LIMITED; CITIGROUP GLOBAL MARKETS INC.; GUOTAI JUNAN
SECURITIES (HONG KONG) LIMITED; HSBC SECURITIES (USA) INC.; UBS
SECURITIES LLC; BOCCI ASIA LIMITED; BOCOM INTERNATIONAL SECURITIES
LIMITED; CCB INTERNATIONAL CAPITAL LIMITED; CLSA LIMITED; CMB
INTERNATIONAL CAPITAL LIMITED; FUTU INC.; ICBC INTERNATIONAL
SECURITIES LIMITED; MIZUHO SECURITIES USA LLC; and TIGER BROKERS
(NZ) LIMITED, Defendants, Case No. 1:21-cv-05807 (S.D.N.Y., July,
6, 2021) is a class action on behalf of persons and entities that
purchased or otherwise acquired DiDi: (a) American Depositary
Shares ("ADSs" or "shares") pursuant and traceable to the
registration statement and prospectus (collectively, the
"Registration Statement") issued in connection with the Company's
June 2021 initial public offering ("IPO" or the "Offering"); and
(b) securities between June 30, 2021 and July 2, 2021, inclusive
(the "Class Period"), seeking to pursue claims under the Securities
Act of 1933, and the Securities Exchange Act of 1934 (the "Exchange
Act").
The Plaintiff alleges in the complaint that the Registration
Statement filed by the Defendants was materially false and
misleading and omitted to state material adverse facts. Throughout
the Class Period, Defendants made materially false and misleading
statements, as well as failed to disclose material adverse facts
about the Company's business, operations, and prospects.
Specifically, Defendants failed to disclose to investors: (1) that
DiDi's apps did not comply with applicable laws and regulations
governing privacy protection and the collection of personal
information; (2) that, as a result, the Company was reasonably
likely to incur scrutiny from the Cyberspace Administration of
China; (3) that the CAC had already warned DiDi to delay its IPO to
conduct a self-examination of its network security; (4) that, as a
result of the foregoing, DiDi's apps were reasonably likely to be
taken down from app stores in China, which would have an adverse
effect on its financial results and operations; and (5) that, as a
result of the foregoing, Defendants' positive statements about the
Company's business, operations, and prospects, were materially
misleading and lacked a reasonable basis.
By the commencement of this action, the Company's stock was trading
as low as $12.06 per share, a nearly 14% decline from the $14 per
share IPO price.
As a result of the Defendants' alleged wrongful acts and omissions,
and the precipitous decline in the market value of the Company's
securities, Plaintiff and other Class members have suffered
significant losses and damages.
Didi Global Inc. provides mobility solutions, cloud computing, and
other application based services. [BN]
The Plaintiff is represented by:
Gregory B. Linkh, Esq.
GLANCY PRONGAY & MURRAY LLP
230 Park Ave., Suite 358
New York, NY 10169
Telephone: (212) 682-5340
Facsimile: (212) 884-0988
E-mail: glinkh@glancylaw.com
-and-
Robert V. Prongay, Esq.
Charles H. Linehan, Esq.
Pavithra Rajesh, Esq.
GLANCY PRONGAY & MURRAY LLP
1925 Century Park East, Suite 2100
Los Angeles, CA 90067
Telephone: (310) 201-9150
Facsimile: (310) 201-9160
DIDI GLOBAL: Faces Franklin Suit Over Drop in Share Price
---------------------------------------------------------
BONNIE L. FRANKLIN, individually and on behalf of all others
similarly situated, Plaintiff v. DIDI GLOBAL INC.; WILL WEI CHENG;
JEAN QING LIU; STEPHEN JINGSHI ZHU; ALAN YUE ZHUO; COLLEEN A. DE
VRIES; COGENCY GLOBAL, INC.; GOLDMAN SACHS (ASIA) L.L.C.; MORGAN
STANLEY & CO. LLC; and J.P. MORGAN SECURITIES LLC, Defendants, Case
No. 2:21-cv-05486 (C.D. Cal., July 6, 2021) is a class action on
behalf of persons or entities who purchased or otherwise acquired
publicly traded DiDi securities pursuant and traceable to the
registration statement and related prospectus (collectively, the
"Registration Statement") issued in connection with DiDi's June 30,
2021 initial public offering (the "IPO" or "Offering"), seeking to
recover compensable damages caused by the Defendants' violations of
the Securities Act of 1933.
According to the complaint, on or about June 30, 2021, Defendants
held the IPO, issuing approximately 316,800,000 American Depositary
Shares ("ADSs") to the investing public at $14.00 per ADS, pursuant
to the Registration Statement. Since the IPO, and as a result of
the disclosure of material adverse facts omitted from the Company's
Registration Statement, DiDi's ADS price has fallen significantly
below its IPO price, damaging the Plaintiff and Class members, says
the suit.
The Registration Statement filed by the Defendants was materially
false and misleading because they misrepresented and failed to
disclose the following adverse facts pertaining to the Company's
business, operations and prospects, which were known to Defendants
or recklessly disregarded by them. Specifically, the Registration
Statement was false and misleading and failed to disclose that: (1)
the Defendant DiDi "had the problem of collecting personal
information in violation of relevant PRC laws and regulations"; (2)
DiDi's app, DiDi Chuxing (Travel), would face an imminent
cybersecurity review by the CAC; (3) the CAC would require all
Chinese app stores to remove DiDi Chuxing; and (4) as a result, the
Defendants' statements about the Company's business, operations,
and prospects were materially false and misleading and lacked a
reasonable basis at all relevant times.
DIDI GLOBAL INC. provides mobility solutions, cloud computing, and
other application based services. [BN]
The Plaintiff is represented by:
Laurence M. Rosen, Esq.
THE ROSEN LAW FIRM, P.A.
355 South Grand Avenue, Suite 2450
Los Angeles, CA 90071
Telephone: (213) 785-2610
Facsimile: (213) 226-4684
E-mail: lrosen@rosenlegal.com
DOW CHEMICAL: Faces Suit in Cal. Linking Pesticide to Brain Damage
------------------------------------------------------------------
Don Thompson, writing for Claims Journal, reports that lawsuits
filed in California seek potential class-action damages from Dow
Chemical and its successor company over a widely used bug killer
linked to brain damage in children.
Chlorpyrifos is approved for use on more than 80 crops, including
oranges, berries, grapes, soybeans, almonds and walnuts, though
California banned sales of the pesticide last year and spraying of
it this year. Some other states, including New York, have moved to
ban it.
Stuart Calwell, lead attorney in the lawsuits, argued that its
effects linger in Central Valley agricultural communities
contaminated by chlorpyrifos during decades of use, with measurable
levels still found in his clients' homes.
Lawyers project that at least 100,000 homes in the nation's largest
agricultural state may need to dispose of most of their belongings
because they are contaminated with the pesticide.
"We have found it in the houses, we have found it in carpet, in
upholstered furniture, we found it in a teddy bear, and we found it
on the walls and surfaces," Calwell said. "Then a little child
picks up a teddy bear and holds on to it."
All that needs to be cleaned up, he says, because "it's not going
away on its own."
State records show 61 million pounds of the pesticide were applied
from 1974 through 2017 in four counties where the lawsuits were
filed, Calwell said.
Officials with Dow and its affiliated Corteva Inc. did not
immediately respond to telephone and email requests seeking
comment.
Corteva stopped producing the pesticide last year. The
Delaware-based company was created after a merger of Dow Chemical
and Dupont and had been the world's largest manufacturer of
chlorpyrifos. The company has said it believes the product is safe
and said it stopped production because of declining sales.
Scientific studies have shown that chlorpyrifos damages the brains
of fetuses and children. It was first used in 1965 but was banned
for household use in 2001.
The U.S. Environmental Protection Agency is weighing whether to ban
the product or declare it safe, including for infants and children.
The 9th U.S. Circuit Court of Appeals in April ordered the EPA to
make a decision after studying the product for more than a decade.
The Trump administration had halted the rule-making process.
The lawsuits were filed on behalf of people in Fresno, Kings,
Madera and Tulare counties, though Calwell said they are a
precursor to seeking class-action status. Aside from Dow-related
companies, they name various farming companies they say applied the
chemical near the plaintiffs' homes.
In each case, the plaintiffs are parents suing on behalf of
children who suffer from severe neurological injuries that the
lawsuits blame on their exposure to the chemical while they were in
the womb or when they were very young.
Aside from nearby spraying, the lawsuits say the parent, relatives
or others in frequent contact with the child worked in the fields
or packing plants and became contaminated with the chemical that
they passed on to the child.
Calwell filed related lawsuits last fall on behalf of farmworkers
who his firm said "spent years marinating in the pesticide."
The first of those related lawsuits blames chlorpyrifos for causing
autism, cognitive and intellectual disabilities in a now-teenager
born in 2003.
The teen's father worked spraying pesticides on farm fields and his
mother packed what the lawsuit says was chlorpyrifos-covered
produce in a facility surrounded by fields treated with the
pesticide, often applied by aerial spraying.
Calwell similarly sued Monsanto for damages he alleged it caused to
homes in Nitro, West Virginia, with its use of dioxin to make the
defoliant known during the Vietnam War era as Agent Orange.
That case settled for $93 million, with Monsanto paying to
decontaminate 4,500 homes, a fraction of those that he alleges in
California will require more extensive decontamination followed by
medical monitoring. [GN]
ENDO INTERNATIONAL: Seeks to Modify Class Certification Order
-------------------------------------------------------------
In the class action lawsuit captioned as ALEXANDRE PELLETIER,
Individually and on Behalf of All Others Similarly Situated, v.
ENDO INTERNATIONAL PLC, et al., Case No. 2:17-cv-05114-MMB (E.D.
Pa.), the Defendants ask the Court to enter an order granting
modification or reconsideration of this Court's class certification
order.
Endo International is an American Irish-domiciled generics and
specialty branded pharmaceutical company that generated over 93% of
its 2017 sales from the U.S. healthcare system.
A copy of the Defendants' motion dated July 12, 2021 is available
from PacerMonitor.com at https://bit.ly/3kFSGuy at no extra
charge.[CC]
The Defendants are represented by:
Jeff G. Hammel, Esq.
James E. Brandt, Esq.
Thomas J. Giblin, Esq.
LATHAM & WATKINS LLP
1271 Avenue of the Americas
New York, NY 10020
Telephone: (212) 906-1200
Facsimile: (212) 751-4864
E-mail: james.brandt@lw.com
jeff.hammel@lw.com
thomas.giblin@lw.com
- and -
Marc J. Sonnenfeld, Esq.
J. Gordon Cooney, Jr., Esq.
Laura Hughes McNally, Esq.
MORGAN, LEWIS & BOCKIUS LLP
1701 Market Street
Philadelphia, PA 19103
Telephone: (215) 963-5000
Facsimile: (215) 963-5001
E-mail: marc.sonnenfeld@morganlewis.com
gordon.cooney@morganlewis.com
laura.mcnally@morganlewis.com
ENTERPRISE HOLDINGS: Quebec Court Authorizes Discrimination Suit
----------------------------------------------------------------
The Canadian Press reports that a class action suit led by a
consumer advocacy group has been authorized by the Quebec Superior
Court against a dozen car rental companies for alleged
discriminatory practices against drivers under 25 years of age.
According to Option consommateurs, the companies involved in the
action have adopted a practice contrary to the Consumer Protection
Act. The suit alleges the companies discriminated by imposing
additional fees on customers aged 16 to 24 or preventing them from
renting vehicles because of their age, even when these consumers
were already covered by their own insurance.
The class action lawsuit targets rental companies such as
Enterprise, Alamo, National, Avis, Discount, Hertz and Budget Auto.
Option consommateurs hopes that the case will put an end to this
practice, which it considers discriminatory, and that it will
require companies to pay for damages.
According to the consumer rights group, certain circumstances allow
for a distinction, exclusion or preference based on age -- notably
in an insurance contract -- but these exceptions would not be
provided for in the case of car rentals.
"Younger drivers were already having to pay more to insure their
vehicles because of their age," said Sylvie De Bellefeuille,
lawyer, and budget and legal advisor for Option consommateurs, in a
news release, arguing that "the fees imposed by lessors penalize
them a second time."
The group invited drivers between the ages of 16 and 24 who have
entered into such a rental agreement or have been denied a rental
since Aug. 16, 2016, to register to receive information on the
progress of the case. [GN]
ERGATTA INC: Blind Users Can't Access Web Site, Pascual Says
------------------------------------------------------------
DOMINGO PASCUAL, individually and on behalf of all others similarly
situated, Plaintiff v. ERGATTA, INC., Defendant, Case No.
1:21-cv-05769 (S.D.N.Y., July 6, 2021) alleges violation of the
Americans with Disabilities Act.
The Plaintiff alleges in the complaint that the Defendant's
Website, www.ergatta.com, is not fully or equally accessible to
blind and visually-impaired consumers in violation of the ADA. The
Plaintiff seeks a permanent injunction to cause a change in the
Defendant's corporate policies, practices, and procedures so that
the Defendant's Website will become and remain accessible to blind
and visually-impaired consumers, the suit adds.
Ergatta, Inc. provides combined cardio equipment and an interactive
gaming platform designed to deliver a competitive, motivating and
entertaining fitness experience. [BN]
The Plaintiff is represented by:
Joseph H. Mizrahi, Esq.
COHEN & MIZRAHI LLP
300 Cadman Plaza West, 12th Fl.
Brooklyn, New York 11201
Telephone: (929) 575-4175
Facsimile: (929) 575-4195
E-mail: Joseph@cml.legal
FIRST IMPRESSION: Black Sues Over Unsolicited Prerecorded Calls
---------------------------------------------------------------
The case, ROBIN BLACK, on behalf of herself and all others
similarly situated, Plaintiff v. FIRST IMPRESSION INTERACTIVE,
INC., an Illinois corporation; JEFFREY GILES, an individual; and
DALE BROWN, an individual, Defendants, Case No. 1:21-cv-03745 (N.D.
Ill., July 14, 2021) from the Defendants' alleged violations of the
Telephone Consumer Protection Act.
According to the complaint, the Defendants placed numerous
prerecorded telephone calls to the Plaintiff's cellular telephone
number ending in 8324 that has been on the National Do-Not-Call
Registry since November 17, 2004. Allegedly, the Defendant has been
making unsolicited telemarketing calls under the false pretenses
that it is a job matching service. But in reality, the Defendant's
calls transition into a campaign to persuade the called party to
enroll in school programs marketed by the Defendants. In addition,
the Defendants allegedly used sound board technology to play an
artificial voice and/or prerecorded voice messages that interact
with the called party.
The Plaintiff asserts that she never provided the Defendants her
prior express written consent to receive such unsolicited
pre-recorded telemarketing calls.
The Plaintiff brings this complaint as a class action demanding for
statutory and treble damages for herself and for all others
similarly situated individuals against the Defendants. The
Plaintiff also seeks an award of injunctive and other equitable
relief prohibiting the Defendant from engaging in the wrongful and
unlawful acts, as well as reasonable attorneys' fees and costs, and
other relief that the Court deems reasonable and just.
First Impression Interactive, Inc. offers interactive marketing and
generates online leads for network marketing companies, debt relief
service providers, traditional and online colleges and
universities, financial institutions, auto dealers, and insurers.
It also provides e-mail marketing, comprehensive list management,
and media buying services. The Individual Defendants are owners and
operators of the Corporate Defendant. [BN]
The Plaintiff is represented by:
Thomas A. Zimmerman, Jr., Esq.
Jeffrey D. Blake, Esq.
ZIMMERMAN LAW OFFICES, P.C.
77 West Washigton St., Suite 1220
Chicago, IL 60602
Tel: (312) 440-0020
Fax: (312) 440-4180
E-mail: firm@attorneyzim.com
- and –
Max S. Morgan, Esq.
Eric H. Weitz, Esq.
THE WEITZ FIRM, LLC
1528 Walnut St., 4th Floor
Philadelphia, PA 19102
Tel: (267) 587-6240
Fax: (215) 689-0875
E-mail: max.morgan@theweitzfirm.com
eric.weitz@theweitzfirm.com
FORD MOTOR: Class Action Over Defective Shelby GT350 Can Proceed
----------------------------------------------------------------
Rob Stumpf, writing for The Drive, reports that the Ford Mustang is
the vehicle that defines the pony car segment. Few automobiles have
lived up to the prowess displayed by these muscle-heavy sports
coupes. However, a class action lawsuit alleges that the Mustang --
or more specifically, the 526-horsepower Shelby GT350 -- isn't
living up to its paradigmatic reputation. Early sixth-generation
GT350 owners have banded together to take on the Blue Oval in
court, claiming that the "track-ready" tire slayers were never
equipped to properly handle seat time in their natural habitat.
Earlier this month, Federal Judge Federico A. Moreno reviewed the
complaints against Ford which were originally made back in 2017. It
was determined that proceedings held enough merit to move forward,
and they were certified in several states. Then, the judge quoted
plaintiffs who compared the Mustangs with one of Lee Iacocca's most
infamous flops: the Ford Pinto.
At the center of the lawsuit is the 2016 Ford Mustang Shelby GT350.
Specifically, the complaint targets the vehicles equipped with
either the Base or Technology packages, as both trims lacked the
oil, transmission, and differential coolers found in the
higher-trimmed cars like the Track, R, and R Technology packages.
Instead, the cars were programmed to enter a performance-limited
engine management loop ("Limp Mode") which capped the power output
to prevent damage to the vehicle due to high temperatures. This
problem is specific to the 2016 Shelby GT350, as the 2017 made the
Track package standard, which equipped the Mustang with all the
coolers that were previously optional.
The lawsuit alleges that Ford removed these coolers from the two
lowest trims in order to increase profits, yet still chose to
improperly advertise these Mustangs as being "track-ready." Some
plaintiffs in the case say that they specifically purchased the
cars for prolonged track use, yet the cars are unable to perform
due to the cooling issues constantly sending them into Limp Mode
before they could complete even a single track day. Some claim that
the vehicles entered Limp Mode in just 15 minutes of sustained
track driving.
In the video below, a GT350 with the Technology Package can be seen
hitting Limp Mode during a track day around the four-minute mark.
Depending on the state that the case was certified in, the class
action may be presented as either fraud or a breach of warranty due
to the cars entering Limp Mode under "normal" conditions. Ford
maintains that this is a safety feature -- that since it is not a
malfunction, it doesn't represent a vehicle defect and thus is not
a warrantable claim.
The judge, however, is not convinced by the warranty argument. The
order to certify the lawsuit specifically calls out the lack of
coolers as a design choice and labels it an alleged design defect
rather than a manufacturing defect, though consumers' protection on
this becomes muddied on a state-by-state basis when approached as a
warranty issue.
"Through product placement in James Bond movies and racing
partnerships with figures like Carroll Shelby, Ford has spent half
a century cultivating an aura of performance and adventure," writes
Judge Moreno in the order. "But these Plaintiffs allege, to Lee
Iacocca's chagrin, that their cars are more like Pintos than
Mustangs."
It appears that the next step for this long-dragged-out lawsuit
will be to duke it out in court. That alone might be concerning for
Ford considering that Hagens Berman -- the firm that won $1.6
billion from Toyota over unintended acceleration, $350 million from
GM over its ignition switches, and $330 million from FCA (now
Stellantis) over an emissions scandal -- is leading the case. [GN]
FREE STATE: Court Approves $61K Class Settlement in Johnson Suit
----------------------------------------------------------------
In the lawsuit titled KEVIN JOHNSON, Plaintiff v. FREE STATE
MANAGEMENT GROUP, LLC, Defendant, Case No. 20-197-KSM (E.D. Pa.),
District Judge Karen S. Marston of the U.S. District Court for the
Eastern District of Pennsylvania issued a Memorandum granting the
Plaintiff's:
(1) Unopposed Motion for an Order Approving the Settlement
Agreement and Granting a Service Award; and
(2) Unopposed Motion for an Order Awarding Attorneys' Fees and
Reimbursement of Expenses, with a reduced service award.
In this collective action lawsuit, Plaintiff Kevin Johnson, on
behalf of himself and others similarly situated, alleges that
Defendant Free State Management Group, LLC violated the Fair Labor
Standards Act ("FLSA"), 29 U.S.C. Section 216(b), when it
improperly categorized individuals holding the title of
"Construction Contractor" as independent contractors, rather than
as employees. Specifically, Mr. Johnson alleged that his and
others' misclassification meant that their hours were not properly
tracked, and that as a result, they were not paid for all hours
worked and were not paid overtime.
Mr. Johnson filed this action on Jan. 10, 2020, alleging that he
and others, who worked for Free State as Construction Contractors,
were improperly classified as FLSA-exempt independent contractors
and undercompensated as a result.
Free State is a company that contracts with large venues, such as
conferences, professional golf tournaments, or the Super Bowl, to
construct large tents that require a fair amount of construction
knowledge and project management skills to safely erect. Free State
uses the workers it titles as Construction Contractors to build
these tents. Free State answered Mr. Johnson's Complaint on April
3, 2020, and explicitly denied misclassifying or underpaying its
Construction Contractors.
Litigation proceeded apace. After the parties completed written
discovery, they agreed that this matter should be conditionally
certified as a collective action with respect to Mr. Johnson's FLSA
claims. On Sept. 21, 2020, the Court issued an Order conditionally
certifying a collective comprising:
All individuals who performed services for Free State
Management Group, LLC as a Construction Contractor and/or
Installer, were issued a Form 1099 in connection with those
services, and received at least $600 in annual compensation,
at any time between September 21, 2017 and September 21,
2020 (Putative Collective Members).
In that Order, the Court also approved the parties' proposed
notice, opt-in consent form, and text message notification.
Subsequently, 20 people opted into the lawsuit.
The parties participated in a settlement conference with Magistrate
Judge Marilyn Heffley on Jan. 20, 2021. With Judge Heffley's
assistance, the parties were able to reach a settlement agreement.
On April 7, 2021, Mr. Johnson filed his Unopposed Motion for an
Order Approving the Settlement Agreement and Granting a Service
Award and an Unopposed Motion for an Order Awarding Attorneys' Fees
and Reimbursement of Expenses. The Court held a hearing on both
motions on May 10, 2021. No opt-ins or objectors attended the
hearing.
The Settlement Agreement
The parties' Settlement Agreement sets forth a "Settlement Class"
that includes Mr. Johnson "and all Opt-In Plaintiffs who previously
joined the lawsuit." In other words, the Settlement Class includes
Mr. Johnson and the other 20 people, who opted into this action.
According to the terms of the Settlement Agreement, upon judicial
approval, Free State will pay a total of $61,000. The $61,000 will
be broken up and put to four different uses: (1) 22,793.25 will
distributed to the Settlement Class members on a pro rata basis
based on the number of uncompensated overtime hours they worked;
(2) Mr. Johnson will receive a $3,000 service award, in addition to
his pro rata share of the settlement fund; (3) $14,500 is earmarked
to cover the costs of issuing notice to members of the putative
collective and of administering the settlement incurred by RG/2
Claims Administration LLC, Mr. Johnson's chosen claims
administrator; and (4) $20,300 will go towards covering class
counsel's fees, and $406.75 for the costs incurred by counsel.
Although it agreed to settle this case, Free State does not concede
liability, and continues to maintain that its employee
classification and pay practices were lawful. Pursuant to the
Settlement Agreement, in exchange for receiving certain benefits,
the Settlement Class members agree to release certain claims
against Free State.
Specifically, members of the Settlement Class agree to waive any
claims that they have against Free State arising out of the FLSA or
state wage and hour laws. Additionally, in exchange for the service
award, Mr. Johnson agrees to waive any claims he had against Free
State, not just those arising out of alleged violations of wage and
hour laws.
Final Certification of the FLSA Collective
The Court finds that Mr. Johnson has carried his burden of showing
that he is similarly situated with the other collective members
within the meaning of Section 216(b). As an initial matter, the
Court notes that neither Free State nor potentially eligible
members of the collective object to final certification, which
weighs in favor of granting it, citing Keller v. TD Bank, N.A.,
Civil Action No. 12-5054, 2014 WL 5591033, at *9 (E.D. Pa. Nov. 4,
2014).
Additionally, an analysis of the factors identified in Zavala v.
Wal Mart Stores Inc., 691 F.3d 527, 536 (3d Cir. 2012), indicates
that final certification is appropriate. Although the 20 opt-in
plaintiffs worked at a variety of Free State's jobsites in eleven
different states for different periods of time, they all held the
same role: contractors constructing tents for Free State. As such,
they all had similar salaries and circumstances of employment,
particularly given that they were all classified as independent
contractors. They all advance the identical claim that Free State
misclassified them as independent contractors and, as a result, did
not appropriately compensate them for their hours worked or
overtime. Finally, they all seek the same form of relief:
compensation for their unpaid wages and overtime.
For these reasons, the Court finds that the opt-ins are similarly
situated to Mr. Johnson, and will grant final certification to the
collective for purposes of this settlement.
Final Approval of the Settlement Agreement
Judge Marston holds that the Settlement Agreement meets all the
requirements for approval. She also finds that the Settlement
Agreement is fair and reasonable. The Court agrees with Mr.
Johnson's assertion that maintaining this action through trial
would have been complex, expensive, and time-consuming.
Turning to the risks posed by this case, the risk of establishing
liability, the risk of establishing damages, and the risk of
maintaining this collective action through trial all weigh in favor
of finding that the settlement is reasonable, Judge Marston notes,
among other things.
The Court also considers whether the parties' Settlement Agreement
furthers the purposes of the FLSA. Judge Marston opines that it
does. The Settlement Agreement only requires the Settlement Class
to release their FLSA and state wage and hour claims against Free
State based on the facts asserted in Mr. Johnson's Complaint.
Accordingly, the release is appropriately and narrowly tailored.
Therefore, the Court finds that the parties' Settlement Agreement,
which provides the Settlement Class with compensation for their
allegedly unpaid hours and overtime, advances the purposes of the
FLSA.
For these reasons, the parties' Settlement Agreement will be
approved under the FLSA.
Approval of a Service Award to Mr. Johnson
The question is whether the proposed $3,000 service payment to Mr.
Johnson is fair and reasonable based on the collective's recovery
and Mr. Johnson's contributions to that recovery, Judge Marston
states. The Court recognizes that Mr. Johnson was "a substantial
and necessary source of information" in the prosecution of this
lawsuit. He provided information and documents to collective
counsel that were the original basis for this lawsuit, and he spoke
in depth and at length with counsel regarding his experiences and
job duties and Free State's policies and practices. He participated
in discovery, responding to both interrogatories and document
requests from Free State. Additionally, he assisted in recruiting
other opt-ins to the suit, participated in the parties' settlement
negotiations, and helped counsel evaluate the fairness of proposed
settlement terms.
Judge Marston notes that the incentive award to Mr. Johnson amounts
to nearly 5% of the collective's total recovery in this matter,
which is high relative to incentive awards in other FLSA cases. If
the parties' proposed service payment is disproportional to the
benefit to the collective or the effort expended by the
representative plaintiff, then courts have the power--and, indeed,
the duty--to reduce it. Such a reduction is appropriate in this
case, the Judge opines. Mr. Johnson's contributions to the
litigation, while valuable, are the sort of "run-of-the-mill
assistance" expected of a named plaintiff, not the "extensive
involvement" required for a named plaintiff to earn a large
incentive award. Judge Marston points out that this is especially
true given that $3,000 is substantially more than other members of
the collective will receive as part of the settlement.
After evaluating the total recovery amount and the contributions of
Mr. Johnson, the Court finds that $2,135 service payment (3.5% of
the settlement amount) is an appropriate and reasonable service
payment in this case. The remaining $865 will be distributed to the
Settlement Class members on a pro-rata basis.
For these reasons, the Court will approve the payment of a $2,135
service award to Mr. Johnson.
Approval of Class Counsel's Attorneys' Fees and Costs
Mr. Johnson seeks $20,300 in attorneys' fees, roughly one-third of
the settlement fund, and $406.75 in litigation costs and expenses
for collective counsel. Beginning its analysis with the factors
under Gunter v. Ridgewood Energy Corp., 223 F.3d 190, 195 n.1 (3d
Cir. 2000), the Court finds that factor one, the size of the
settlement fund and the number of people benefitted by it, weighs
in favor of approval.
Generally, to avoid a windfall to counsel, as the size of a common
fund increases, counsel's percentage of recovery should decrease.
Here, where counsel's efforts have led to the recovery of $61,000
on behalf of a collective comprising 21 people, attorneys' fees of
33% are reasonable, Judge Marston holds. There were no objections
to the terms of the settlement or to the award of attorneys' fees
from members of the collective, which weighs in favor of approval.
The Court finds that a comparison of collective counsel's requested
fees in this case to awards in similar cases favors approval.
Having concluded that the Gunter factors all weigh in favor of
approving collective counsel's requested fees in this case, the
Court next performs a lodestar cross-check to confirm the
reasonableness of that conclusion. The lodestar cross-check is an
additional method used to determine whether class counsel's
requested fees are reasonable--an opportunity that the Court must
take advantage of to fulfill its fiduciary duties to the members of
the class/collective. Collective counsel reports that the 67.67
hours he expended on this matter, multiplied by his hourly rate of
$290/hour, results in a lodestar of $19,624.30.
Based on this lodestar, the Court finds that the lodestar
cross-check confirms the reasonableness of the award of attorneys'
fees in this case.
The Court also finds that Mr. Johnson's request for $406.75 for
costs expended by counsel is reasonable. The Court finds that these
expenses, which reflect the $400 filing fee and $6.75 in courier
fees, were reasonably incurred in the prosecution of this matter.
For these reasons, the Court will approve a payment of $20,300 to
collective counsel as attorneys' fees, and $406.75 as compensation
for collective counsel's expenses.
Conclusion
For these reasons, the Court grants the motion for approval of the
collective action settlement and the service award (with a
modification to the service award) and approves the Plaintiff's
request for an award of attorneys' fees and reimbursement of
expenses to class counsel.
A full-text copy of the Court's Memorandum dated July 1, 2021, is
available at https://tinyurl.com/585rbd2f from Leagle.com.
FREQUENCY THERAPEUTICS: Bragar Eagel Reminds of Aug. 2 Deadline
---------------------------------------------------------------
Bragar Eagel & Squire, P.C., a nationally recognized shareholder
rights law firm, reminds investors that class actions have been
commenced on behalf of stockholders of Ubiquiti, Inc. (NYSE: UI),
Frequency Therapeutics, Inc. (NASDAQ: FREQ), DiDi Global, Inc.
(NYSE: DIDI), and CarLotz, Inc. (NASDAQ: LOTZ). Stockholders have
until the deadlines below to petition the court to serve as lead
plaintiff. Additional information about each case can be found at
the link provided.
Ubiquiti, Inc. (NYSE: UI)
Class Period: January 11, 2021 and March 30, 2021
Lead Plaintiff Deadline: July 19, 2021
Ubiquiti develops and markets equipment and technology platforms
for high-capacity Internet access, unified information technology,
and consumer electronics.
On March 30, 2021, after the market closed, Krebs on Security
published an article entitled "Whistleblower: Ubiquiti Breach
‘Catastrophic'" stating that the Company had downplayed a data
breach from January 2021 and that the "third-party cloud provider
claim was a fabrication." According to the article, the attacker(s)
had accessed "privileged credentials that were previously stored in
the LastPass account of a Ubiquiti IT employee, and gained root
administrator access to all Ubiquiti AWS [Amazon Web Services]
accounts, including all S3 data buckets, all application logs, all
databases, all user database credentials, and secrets required to
forge single sign-on (SSO) cookies." As a result, the article noted
that the Company should have immediately invalidated customers'
credentials and forced a reset, rather than asking customers to
change their passwords when they next log on.
On this news, the Company's stock price fell $50.70, or 14.5%, to
close at $298.30 per share on March 31, 2021, on unusually heavy
trading volume.
The complaint alleges that throughout the Class Period, Defendants
made materially false and/or misleading statements, as well as
failed to disclose material adverse facts about the Company's
business, operations, and prospects. Specifically, Defendants, in
their statements concerning the data breach, failed to speak fully
and truthfully because they failed to disclose to investors: (1)
that the Company had downplayed the data breach in January 2021;
(2) that attackers had obtained administrative access to Ubiquiti's
servers and obtained access to, among other things, all databases,
all user database credentials, and secrets required to forge single
sign-on (SSO) cookies; (3) that, as a result, intruders already had
credentials needed to remotely access Ubiquiti's customers'
systems; and (4) that, as a result of the foregoing, Defendants'
positive statements about the Company's business, operations, and
prospects were materially misleading and/or lacked a reasonable
basis.
For more information on the Ubiquiti class action go to:
https://bespc.com/cases/UI
Frequency Therapeutics, Inc. (NASDAQ: FREQ)
Class Period: November 16, 2020 and March 22, 2021
Lead Plaintiff Deadline: August 2, 2021
Frequency Therapeutics has conducted several clinical studies
evaluating the safety and effectiveness of FX-322, the most
significant which was a Phase 2a study that began in October 2019.
In April 2020, Frequency's Chief Executive Officer ("CEO"), David
L. Lucchino, began selling his shares of Frequency, totaling over
350,000 shares sold and earning over $10.5 million.
On March 23, 2021, before the market opened, Frequency disclosed in
a press release disappointing interim results of the Phase 2a
study, revealing that subjects with mild to moderate SNHL did not
demonstrate improvements in hearing measures versus placebo.
On this news, Frequency's shares fell $28.30, or 78%, to close at
$7.99, thereby damaging investors.
The Complaint alleges that throughout the Class Period, Defendants
made materially false and misleading statements and/or failed to
disclose that: (1) Frequency's development and commercialization of
a hearing loss treatment titled "FX-322" was not producing the
results desired by Frequency; (2) FX-322's ongoing clinical study
was not as positive as Frequency portrayed it; and (3) as a result
of the foregoing, defendants' positive statements about the
Company's business, operations, and prospects were materially
misleading and/or lacked a reasonable basis. When the true details
entered the market, the lawsuit claims that investors suffered
damages.
For more information on the Frequency class action go to:
https://bespc.com/cases/FREQ
DiDi Global, Inc. (NYSE: DIDI)
Class Period: June 30, 2021 IPO
Lead Plaintiff Deadline: September 7, 2021
On or about June 30, 2021, DiDi Global completed its IPO, issuing
316.8 million American Depositary Shares at $14.
Within days, on July 2, 2021, the company disclosed China's
Cyberspace Administration Office is conducting a cybersecurity
review of the company and required it to suspend new user
registration in China.
On July 4, 2021, the Company issued a press release entitled "DiDi
Announces App Takedown in China" which announced that: "the CAC
[Cyberspace Administration of China] stated that it was reported
and confirmed that the ‘DiDi Chuxing' app had the problem of
collecting personal information in violation of relevant PRC laws
and regulations." The press release further stated that "[p]ursuant
to the PRC's Cybersecurity Law, the CAC notified app stores to take
down the ‘DiDi Chuxing' app in China[.]"
On July 5, 2021, the Wall Street Journal published an article
entitled "Chinese Regulators Suggested Didi Delay Its U.S. IPO:
Ride-hailing giant, under pressure to reward shareholders, pushed
ahead with NYSE listing despite concerns of China's cybersecurity
watchdog" which reported, among other things, that "[w]eeks before
Didi Global Inc. [] went public in the U.S., China's cybersecurity
watchdog suggested the Chinese ride-hailing giant delay its initial
public offering and urged it to conduct a thorough self-examination
of its network security[.]"
On this news, the Company's American Depositary Shares ("ADS")
price fell $3.04 per ADS, or nearly 20%, to close at $12.49 per ADS
on July 6, 2021, the next trading day.
For more information on the DiDi class action go to:
https://bespc.com/cases/DIDI
CarLotz, Inc. (NASDAQ: LOTZ)
Class Period: December 30, 2020 and May 25, 2021
Lead Plaintiff Deadline: September 7, 2021
On March 15, 2021, CarLotz announced its fourth quarter and full
year 2020 financial results. During a related conference call, the
Company stated that gross profit and gross profit per unit ("GPU")
"were softer than . . . expected" due to "the surge in inventory
during the quarter and the resulting lower retail unit
profitability." CarLotz also reported that the additional inventory
"created a logjam that resulted in slower processing and higher
days to sell."
On this news, the Company's stock price fell $0.79, or 8.5%, to
close at $8.45 per share on March 16, 2021, on unusually heavy
trading volume. The stock price continued to decline over the next
two consecutive trading sessions by $0.62, or 7.3%, to close at
$7.83 per share on March 18, 2021, on unusually heavy trading
volume.
Then, on May 10, 2021, after the market closed, CarLotz announced
its first quarter 2021 financial results revealing that gross
profit per unit fell below expectations. In particular, the Company
had expected retail GPU between $1,300 and $1,500 but reported
$1,182.
On this news, the Company's stock price fell $0.94, or 14%, to
close at $5.57 per share on May 11, 2021, on unusually heavy
trading volume. The stock price continued to decline $0.45, or 8%,
to close at $4.12 per share on May 12, 2021, on unusually heavy
trading volume.
Then, on May 26, 2021, before the market opened, CarLotz announced
an update to its profit-sharing sourcing partner arrangement.
Specifically, CarLotz stated that its "profit-sharing corporate
vehicle sourcing partner informed the Company that, in light of
current wholesale market conditions, it has paused consignments to
the Company." Moreover, this partner "accounted for more than 60%
of the cars sold and sourced" during first quarter 2021 and "less
than 50% of the cars sold and approximately 25% of cars sourced"
during second quarter 2021 to date.
On this news, the Company's stock price fell $0.70, or 13.4%, to
close at $4.51 per share on May 26, 2021, on unusually heavy
trading volume.
The complaint filed in this class action alleges that throughout
the Class Period, Defendants made materially false and/or
misleading statements, as well as failed to disclose material
adverse facts about the Company's business, operations, and
prospects. Specifically, Defendants made material
misrepresentations concerning the following: (1) that, due to a
surge in inventory during the second half of fiscal 2020, CarLotz
was experiencing a "logjam" resulting in slower processing and
higher days to sell; (2) that, as a result, the Company's gross
profit per unit would be negatively impacted; (3) that, to minimize
returns to the corporate vehicle sourcing partner responsible for
more than 60% of CarLotz's inventory, the Company was offering
aggressive pricing; (4) that, as a result, CarLotz's gross profit
per unit forecast was likely inflated; (5) that this Company's
corporate vehicle sourcing partner would likely pause consignments
to the Company due to market conditions, including increasing
wholesale prices; and (6) as a result, Defendants' statements about
its business, operations, and prospects were materially false and
misleading and/or lacked reasonable basis at all relevant times.
For more information on the Frequency class action go to:
https://bespc.com/cases/LOTZ
About Bragar Eagel & Squire, P.C.:
Bragar Eagel & Squire, P.C. is a nationally recognized law firm
with offices in New York, California, and South Carolina. The firm
represents individual and institutional investors in commercial,
securities, derivative, and other complex litigation in state and
federal courts across the country. For more information about the
firm, please visit www.bespc.com. Attorney advertising. Prior
results do not guarantee similar outcomes.
Contact Information:
Bragar Eagel & Squire, P.C.
Brandon Walker, Esq.
Melissa Fortunato, Esq.
Marion Passmore, Esq.
(212) 355-4648
investigations@bespc.com
www.bespc.com [GN]
FULL TRUCK: Schall Law Firm Reminds of September 10 Deadline
------------------------------------------------------------
The Schall Law Firm, a national shareholder rights litigation firm,
on July 15 announced the filing of a class action lawsuit against
Full Truck Alliance Co. Ltd. ('FTA' or 'the Company') (NYSE:YMM)
for violations of the federal securities laws.
Investors who purchased the Company's shares pursuant and/or
traceable to the Company's initial public offering conducted in
June 2021 (the 'IPO'), are encouraged to contact the firm before
September 10, 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. FTA's apps, Yunmanman and Huochebang,
were about to be subjected to a cybersecurity review by the Chinese
government. The Chinese government required the Company to suspend
new user registration. The Company was directed to complete a
'comprehensive self-examination of any cybersecurity risks,' and
'continue to improve its cybersecurity systems and technology
capabilities.' 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 FTA,
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]
G.P. PROPERTY: Villa Seeks Minimum and OT Wages Under FLSA, NYLL
----------------------------------------------------------------
RODRIGO VILLA, individually and on behalf of all others similarly
situated v. G.P. PROPERTY DEVELOPMENT, INC. and GREGORIO PICCA, as
an individual, Case No. 2:21-cv-03778-GRB-ARL (E.D.N.Y., March 5,
2021) seeks to recover damages for the Defendants' egregious
violations of the State and Federal wage and hour laws arising out
of Plaintiff's employment at G.P. Property.
Accordingly, Plaintiff worked 72 hours or more hours per week but
the Defendants did not pay Plaintiff time and a half for all his
hours worked over 40 in a workweek, the suit says.
As a result of the alleged violations of the Fair Labor Standards
Act and the New York Labor Laws, the Plaintiff seeks compensatory
damages, and liquidated damages in an amount exceeding $100,000.00.
The Plaintiff also seeks interest, attorneys' fees, costs, and all
other legal, and equitable remedies that this Court deems
appropriate.[BN]
The Plaintiff is represented by:
HELEN F. DALTON & ASSOCIATES, P.C.
80-02 Kew Gardens Road, Suite 601
Kew Gardens, NY 11415
Telephone (718) 263-9591
GABRIELLI TRUCK: Faces Almonte Class Suit in New York Supreme Ct.
-----------------------------------------------------------------
A class action lawsuit has been filed against Gabrielli Truck
Sales, Ltd. The case is captioned as RAILFEL ALMONTE v. GABRIELLI
TRUCK SALES, LTD., Case No. 805777/2021 (N.Y. Sup., Bronx County,
July 7, 2021).
The nature of suit states complexity: standard, computer.
The case is assigned to the Hon. Judge Alison Y. Tuitt.[BN]
The Plaintiff is represented by:
ABDUL HASSAN LAW GROUP, PLLC
215-28 Hillside Ave.,
Queens Village, NY 11427
Telephone: (718) 740-1000
The Defendant is represented by:
MILMAN LABUDA LAW GROUP
Telephone: (516) 328-8899
3000 Marcus Avenue Suite 3W8
North New Hyde Park, NY 11042
Telephone: (516) 328-8899
GARRISON PROPERTY: Fortson Seeks to Certify Class Action
--------------------------------------------------------
In the class action lawsuit captioned as ELIZABETH V. FORTSON, on
behalf of herself and all others similarly situated, v. GARRISON
PROPERTY AND CASUALTY INSURANCE COMPANY, Case No.
1:19-cv-00294-CCE-JLW (M.D.N.C.), the Plaintiff asks the Court to
enter an order granting her motion for class certification.
Garrison Property operates as an insurance company.
A copy of the Plaintiff's motion to certify class dated July 15,
2021 is available from PacerMonitor.com at https://bit.ly/3eQ1mdQ
at no extra charge.[CC]
The Plaintiff is represented by:
Robert B. Carey, Esq.
John M. DeStefano, Esq.
HAGENS BERMAN SOBOL SHAPIRO LLP
11 West Jefferson Street, Suite 1000
Phoenix, AZ 85003
Telephone: (602) 840-5900
Facsimile: (602) 840-3012
E-mail: rob@hbsslaw.com
johnd@hbsslaw.com
- and -
J. Michael Malone, Esq.
HENDREN REDWINE & MALONE, PLLC
4600 Marriott Drive, Suite 150
Raleigh, NC 27612
Telephone: (919) 573-1423
E-mail: mmalone@hendrenmalone.com
GERBER PRODUCTS: Faces Suit Over Toxic Metals in Baby Food Products
-------------------------------------------------------------------
ERIK LAWRENCE, RACHEL M. FRANTZ, and MARIE MEZILE, individually and
on behalf of all others similarly situated v. GERBER PRODUCTS
COMPANY, Case No. 2:21-cv-13676 (D.N.J., July 15, 2021) is an
action seeking damages and injunctive relief for purchasers of Baby
Food Products that Gerber Products Company marketed and sold
without disclosing that they were tainted with arsenic, lead,
cadmium, and mercury (Toxic Heavy Metals) at levels above what is
considered safe for babies.
According to the complaint, on February 4, 2021, the Subcommittee
on Economic and Consumer Policy of the U.S. House of
Representatives released a report concluding that baby food
manufacturers, including Gerber, sold Baby Food Products containing
concentrations of inorganic arsenic, lead, cadmium, and mercury at
levels above what is considered safe for babies. Gerber did not
disclose the Toxic Heavy Metal content of its foods on its labels
or in its marketing materials, nor did it warn consumers that its
Baby Food Products may contain potentially dangerous levels of
Toxic Heavy Metals.
Had Gerber disclosed the Toxic Heavy Metal content on its product
labels, or otherwise warned that its products could contain levels
of Toxic Heavy Metals considered unsafe, neither Plaintiffs nor any
other reasonable consumer would have purchased Gerber's products.
Plaintiffs seek refunds and all other economic losses suffered as a
result of their purchases of Gerber's Baby Food Products, says the
complaint.
Defendant Gerber's baby food products are sold and purchased
throughout the United States.[BN]
The Plaintiffs are represented by:
Douglas A. Abrahams, Esq.
Joseph C. Kohn, Esq.
William E. Hoese, Esq.
Craig W. Hillwig, Esq.
Zahra R. Dean, Esq.
Aarthi Manohar, Esq.
KOHN, SWIFT & GRAF, P.C.
1600 Market Street, Suite 2500
Philadelphia, PA 19103
Telephone: (215) 238-1700
E-mail: dabrahams@kohnswift.com
jkohn@kohnswift.com
whoese@kohnswift.com
chillwig@kohnswift.com
zdean@kohnswift.com
amanohar@kohnswift.com
- and -
David H. Fink, Esq.
Nathan J. Fink, Esq.
FINK BRESSACK
38500 Woodward Ave; Suite 350
Bloomfield Hills, MI 48304
Telephone: (248) 971-2500
E-mail: dfink@finkbressack.com
nfink@finkbressack.com
- and -
Michael L. Roberts, Esq.
Karen Halbert, Esq.
ROBERTS LAW FIRM, P.A.
20 Rahling Circle
Little Rock, AR 72223
Telephone: (501) 821-5575
E-mail: mikeroberts@robertslawfirm.us
karenhalbert@robertslawfirm.us
GINZA PTC: Faces Porter Suit for Wage Theft, FLSA Violations
------------------------------------------------------------
REBECCA A. PORTER, KEREN A. PORTER, YUET-YUEN CHAN CUSHING, & WENJU
WANG, on behalf of themselves and all others similarly situated v.
SU-YA CHIU & GINZA PTC, LLC, Case No. 3:21-cv-00108-TCB (N.D. Ga.,
July 15, 2021) arises from the Defendants' wage theft and
violations of the minimum wage and overtime provisions of the Fair
Labor Standards Act to all restaurant servers.
The complaint alleges that Defendants had a pattern and practice of
wage theft by deducting approximately 23% of all tips, failing to
properly calculate the tip credit against Defendants' minimum and
overtime wage obligations to Plaintiffs, and otherwise failed to
compensate Plaintiffs for statutorily minimum and overtime wages.
These violations were intentional, purposeful, and egregious that
Defendants retaliated and terminated Plaintiff Wenju Wang for
objecting to the unlawful wage theft and deductions, states the
complaint.
Plaintiffs are former employees of Defendant Ginza PTC, LLC.
Defendant Su Ya is an owner, officer, and otherwise in control of
the financial affairs of Defendant Ginza, a Japanese and sushi
restaurant in Peachtree City, Georgia. [BN]
The Plaintiffs are represented by:
STEVEN N. NEWTON, Esq.
STEVEN N. NEWTON, LLC
401 Westpark Court, Suite 200
Peachtree City, GA 30269
Phone: 678-837-6398
Facsimile: 678-831-0707
Email: snnewtonlaw@gmail.com
steven@mynewtonlaw.com
GOOGLE LLC: Must Face Voice Assistant Privacy Class Action
----------------------------------------------------------
Jonathan Stempel and Sara Merken, writing for Insurance Journal,
report that a federal judge said Google must face much of a lawsuit
accusing the company of illegally recording and disseminating
private conversations of people who accidentally trigger its
voice-activated Voice Assistant on their smartphones.
U.S. District Judge Beth Labson Freeman let plaintiffs in the
proposed class action pursue claims that Google and its parent
Alphabet Inc. violated California privacy laws, some claims that
they violated federal privacy laws, and some breach of contract
claims. The San Jose, California-based judge also dismissed the
plaintiffs' California consumer protection claims, but said they
could be refiled.
Google Assistant is designed to react when mobile device owners use
"hot words" such as "Hey Google" or "Okay Google," similar to Apple
Inc.'s Siri.
But the plaintiffs said Google had no right to use their
conversations for targeted advertising when Google Assistant
misperceived what they said as hot words, known as "false
accepts."
In a 37-page decision, Freeman said the plaintiffs showed they used
Google Assistant-enabled devices often enough to have had a
reasonable expectation of privacy when speaking.
She added that while Google disclosed in its privacy policy how it
collects information for targeted advertising, "it does not
sufficiently apprise users that it will use recordings made in the
absence of manual activation or a hot word utterance."
In seeking a dismissal, Google said the plaintiffs failed to show
they were harmed, or that it broke any contractual guarantees.
"Google never promises that the Assistant will activate only when
plaintiffs intend it to," it said.
The proposed class seeking unspecified damages includes U.S.
purchasers of Google Assistant-enabled devices since May 18, 2016.
Google and its lawyers did not immediately respond to requests for
comment. The plaintiffs' lawyers did not immediately respond to
similar requests.
The case is In re Google Assistant Privacy Litigation, U.S.
District Court, Northern District of California, No. 19-04286. [GN]
GRANITE SERVICES: Seeks August 4 Response Time to Class Cert. Bid
-----------------------------------------------------------------
In the class action lawsuit captioned as EMILIO CAMPO, individually
and on behalf of those similarly situated, v. GRANITE SERVICES
INTERNATIONAL, INC., and FIELDCORE SERVICES SOLUTIONS, LLC, Case
No. 1:21-cv-00223-AT (N.D. Ga.), the Defendants ask the Court to
enter an order extending the time for them to file their response
opposing conditional certification from July 21, 2021 to August 4,
2021.
An additional 14 days will facilitate a comprehensive response and
will not cause Plaintiffs any prejudice. Because Defendants request
additional time before the original deadline for their response to
conditional certification expires, Rule 6 permits the relief
sought, the Defendants said.
A copy of the Defendants' motion dated July 15, 2021 is available
from PacerMonitor.com at https://bit.ly/2TuEXvg at no extra
charge.[CC]
The Defendants are represented by:
Brett C. Bartlett, Esq.
Kevin M. Young, Esq.
Lennon B. Haas, Esq.
Zheyao Li, Esq.
SEYFARTH SHAW LLP
1075 Peachtree St. NE, Suite 2500
Atlanta, GA 30309-3958
Telephone: (404) 885-1500
E-mail: bbartlett@seyfarth.com
kyoung@seyfarth.com
lhaas@seyfarth.com
zyli@seyfarth.com
HARTFORD CASUALTY: Chorak Appeals Insurance Suit Dismissal
----------------------------------------------------------
Plaintiffs Mario Chorak, et al., filed an appeal from a court
ruling entered in the lawsuit styled MARIO D. CHORAK DMD PS, et
al., Plaintiffs v. HARTFORD CASUALTY INSURANCE COMPANY, et al.,
Defendants, Case No. 2:20-cv-00627-BJR, in the U.S. District Court
for the Western District of Washington, Seattle.
As reported in the Class Action Reporter on May 19, 2020, the
lawsuit alleges that Hartford wrongfully denied claims for coverage
relating to COVID-19 pandemic and/or orders issued by Governor Jay
Inslee, other Governors, and other civil authorities.
Due to COVID-19 and a state-ordered mandated closure, the Plaintiff
cannot provide dental orthodontic services. The Plaintiff intended
to rely on its business insurance to keep its business as a going
concern, says the complaint. The Plaintiff says it filed the
lawsuit to ensure that it and other similarly-situated
policyholders receive the insurance benefits to which they are
entitled and for which they paid.
The Plaintiffs now seek a review of the Court's Order dated May 28,
2021, granting Defendants' motion to dismiss and motion for
judgment on the pleadings.
The appellate case is captioned as Mario Chorak, et al v. Hartford
Casualty Insurance Co, et al., Case No. 21-35508, in the United
States Court of Appeals for the Ninth Circuit, filed on June 28,
2021.
The briefing schedule in the Appellate Case states that:
-- Appellants Alelg, LLC, Mario D. Chorak, Geoffrey Seuk,
D.D.S., P.S., Glow Medispa, LLC, Humble Warrior, LLC, KCJ Studios,
LLC, Lina Kim, Andrew Lee, MD Spektor DDS, PLLC, Arnell Prato,
Spektor DDS, PS and Wong and Wong, PLLC Mediation Questionnaire was
due July 6, 2021;
-- Appellants Alelg, LLC, Mario D. Chorak, Geoffrey Seuk,
D.D.S., P.S., Glow Medispa, LLC, Humble Warrior, LLC, KCJ Studios,
LLC, Lina Kim, Andrew Lee, MD Spektor DDS, PLLC, Arnell Prato,
Spektor DDS, PS and Wong and Wong, PLLC opening brief is due on
August 23, 2021;
-- Appellees Hartford Casualty Insurance Company, Hartford Fire
Insurance Company and Sentinel Insurance Company Limited answering
brief is due on September 22, 2021;
-- Appellant's optional reply brief is due 21 days after service
of the answering brief. [BN]
Plaintiffs-Appellants MARIO D. CHORAK, DMD PS, individually and on
behalf of all others similarly situated; LINA KIM, DDS PS; ARNELL
PRATO, DDS, PLLC; ANDREW LEE, DDS; GLOW MEDISPA, LLC; KCJ STUDIOS,
LLC, DBA Barre3 Ballard Exercise Studio; HUMBLE WARRIOR, LLC, DBA
Barre3 Roosevelt & Capitol Hill; ALELG, LLC, DBA Barre3 Felida;
SPEKTOR DDS, PS; GEOFFREY SEUK, D.D.S., P.S., DBA Lake Union Family
Dental; MD SPEKTOR DDS, PLLC; and WONG AND WONG, PLLC, DBA Hidden
Valley Smiles are represented by:
Ian S. Birk, Esq.
Gretchen Freeman Cappio, Esq.
Irene M. Hecht, Esq.
Lynn Lincoln Sarko, Esq.
Amy Williams-Derry, Esq.
KELLER ROHRBACK LLP
1201 Third Avenue, Suite 3200
Seattle, WA 98101
Telephone: (206) 623-1900
E-mail: ibirk@kellerrohrback.com
gcappio@kellerrohrback.com
ihecht@kellerrohrback.com
lsarko@kellerrohrback.com
awilliams-derry@kellerrohrback.com
Defendants-Appellees HARTFORD CASUALTY INSURANCE COMPANY, SENTINEL
INSURANCE COMPANY LIMITED, and HARTFORD FIRE INSURANCE COMPANY are
represented by:
Matthew S. Adams, Esq.
FORSBERG & UMLAUF, PS
901 5th Avenue, Suite 1400
Seattle, WA 98164
Telephone: (206) 689-8500
E-mail: madams@foum.law
- and -
Sarah Gordon, Esq.
STEPTOE & JOHNSON LLP
1330 Connecticut Avenue, NW
Washington, DC 20036
Telephone: (202) 429-8005
HEALTH SCIENCES: Gluckstein Lawyers Commence Class Action Suit
--------------------------------------------------------------
Jordan D. Assaraf, Esq., of Gluckstein Personal Injury Lawyers, in
an article for Mondaq, reports that on December 14, 2020,
Gluckstein Lawyers commenced a class action naming Sudbury's main
hospital, Health Sciences North (HSN), and their senior
administrators. This class action lawsuit follows the revelation of
systemic errors in breast imaging performed at the hospital over
several years, including missed cancerous lesions, which have led
to near-catastrophic outcomes for patients.
A 2018 internal letter obtained by the law firm documents
"countless missed lesions" and "overt misreads." The surgeons at
the hospital warned of an "overwhelming decline below the standard
of care for contemporary breast imaging," which was significantly
impacting their ability to manage patients to an appropriate
standard.
The leadership of HSN, including Dr. John Fenton, HSN's chief of
staff and Dr. Evan Roberts, the former chief of radiology, were
repeatedly told of the poor quality of breast imaging and the
potential for patient harm. They did little to fix the problems.
They imposed major roadblocks to quality improvement. Healthcare
professionals at HSN seeking to raise concerns in radiology and
elsewhere at the hospital were subject to bullying and other
punitive action. The hospital did not attempt to notify patients or
the community of the quality problems.
The lawsuit has been filed on behalf of patients and their family
members by Shannon Hayes, a former HSN patient, who alleges that
her breast cancer was missed. It would take another year before her
breast cancer was diagnosed following imaging performed at another
hospital. By then, cancer had spread. She is currently in
remission.
"There needs to be a fundamental change in the culture of safety
and quality at HSN," said Ms. Hayes. "I was outraged to learn that
HSN administration knew about problems for months before my
imagining was misread but did nothing and kept the problems at the
hospital under wraps."
The lawsuit seeks compensation for affected patients and a court
order requiring the hospital to have all affected breast imaging
reviewed by a specialist for errors. The class includes all
patients who had breast radiology performed or interpreted at HSN
from 2008 until 2020.
"I fear that Shannon's story is just the tip of the iceberg," said
Jordan Assaraf, Shannon's lawyer. "It is apparent that there have
been serious systemic quality problems at HSN which the management
have failed to address. Shockingly, a hospital funded by taxpayers
would punish whistleblowers rather than taking prompt action to
avoid harm to patients. This tragic loss will cause these patients
to lose trust in their healthcare institution, which is there to
care and protect them at these vulnerable times."
The content of this article is intended to provide a general guide
to the subject matter. Specialist advice should be sought about
your specific circumstances. [GN]
HENRY GLOBAL: C.D. California Grants Bid to Dismiss Su Class Suit
-----------------------------------------------------------------
The U.S. District Court for the Central District of California
issued an order granting the Defendant's motion to dismiss the
lawsuit captioned DONG SU, et al., Plaintiffs v. HENRY GLOBAL
CONSULTING GROUP, et al., Defendants, Case No. 2:20-cv-02235-ODW
(PLAx) (C.D. Cal.).
On March 6, 2020, the Plaintiffs initiated this putative class
action against Defendants Henry Global Consulting Group; Goldstone
Advisors, Ltd.; and Henry Tongzhao USA Consulting, Inc.,
erroneously sued as Tongzhao USA Consulting, Inc. The named
Plaintiffs are Dong Su, Jranyi Zeng, Lunchun Wu, Wenxia Yang, Yu
Liao, and Xinran Chen. The Plaintiffs allege they hired Global to
act as their immigration agent, and Global failed to disclose a
"finder's fee" that it earned for referring the Plaintiffs to
investment projects in the United States.
The Plaintiffs assert one cause of action for breach of fiduciary
duty against the Defendants based on their alleged failure to
disclose the "finder's fee" and for concealing the financial status
of the investment projects. Tongzhao moves to dismiss for failure
to state a claim, and the matter is fully briefed.
Background
The U.S. EB-5 visa program provides a method for immigrant
investors to become lawful permanent residents by investing capital
in a U.S. business that will employ at least ten workers. The
Plaintiffs allege Global is an international immigrant investment
company that identifies and refers foreign investors, like the
Plaintiffs, to third-parties for potential EB-5 investments. Global
secured agreements with the third-parties ("Migration Agent
Agreements" or "MAAs") to market and sell EB-5 investment
opportunities to the Plaintiffs.
Under the terms of the MAAs, Global received a "finder's fee" for
securing an individual EB-5 investor's investment and would receive
larger fees for ensuring that each EB-5 investor maintained their
investment in the project until the end. The Plaintiffs allege
Global never disclosed it received a "finder's fee" under the MAAs,
and that the Plaintiffs' investments failed as a result of the
fees, which often exceeded $50 million.
According to the Plaintiffs, they also hired Global to act as their
immigration agent, which included "preparing and/or assisting with
the preparation of all immigration documents." The Plaintiffs
allege that Global delegated the task of preparing the immigration
documents to Tongzhao, which was hired to act as the main point of
contact for the Plaintiffs once they arrived in the United States.
The Plaintiffs also allege that Tongzhao provided other services to
the Plaintiffs, such as "purchasing homes, securing bank loans and
purchasing vehicles." The Plaintiffs contend Global's role as their
immigration agent, as well as Tongzhao's assistance in filling out
the immigration documents, required the Defendants to uphold
certain fiduciary duties, which the Defendants breached by failing
to disclose the finder's fees and concealing the true financial
status of various EB-5 projects.
Based on these, the Plaintiffs assert one claim for breach of
fiduciary duty against the Defendants. Tongzhao moves to dismiss,
claiming that the Plaintiffs' allegations are insufficient to state
a claim against it.
Discussion
Tongzhao argues that the Plaintiffs' allegations fail to state a
claim under the many theories of liability that are weaved into the
first amended complaint (FAC). In opposition, the Plaintiffs
contend that the new facts alleged in the FAC demonstrate that
Tongzhao is liable: (1) for breach of fiduciary duty, (2) as a
co-conspirator for its role in the purported scheme; and (3) for
aiding and abetting Global's breach of fiduciary duty.
For many of the same reasons discussed in the Court's prior Order,
the Court finds that the Plaintiffs again fail to plead sufficient
facts to find Tongzhao liable for breach of fiduciary duty or as a
co-conspirator in the purported scheme. Additionally, the
Plaintiffs fail to state a claim against Tongzhao under their new
theory that Tongzhao aided and abetted Global's breach of fiduciary
duty.
Under California law, liability may be imposed on one who aids and
abets the commission of an intentional tort if the person (a) knows
the other's conduct constitutes a breach of duty and gives
substantial assistance or encouragement to the other to so act, or
(b) gives substantial assistance to the other in accomplishing a
tortious result and the person's own conduct, separately
considered, constitutes a breach of duty to the third person (Casey
v. U.S. Bank Nat'l Ass'n, 127 Cal.App.4th 1138, 1144 (2005)).
District Judge Otis D. Wright, II, notes that the Plaintiffs allege
that Global, an immigration investment company, owed them a
fiduciary duty because Global: (1) "agreed to act as the
immigration agent for the EB-5 investor, which included preparing
and/or assisting with the preparation of all immigration
documents"; (2) act[ed] as the EB-5 investor's personal
representative to speak with and coordinate all services performed
by [the] EB-5 investor['s] immigration attorney"; and (3) "act[ed]
as the EB-5 investor's personal representative" in communications
with partners and managers that would oversee the EB-5 investor's
businesses.
Despite the Plaintiffs' arguments to the contrary, nothing in the
FAC demonstrates that Global entered into anything more than a
business relationship with the Plaintiffs, Judge Wright opines.
Indeed, the Plaintiffs fail to cite to a single case supporting
their contention that Global assumed certain fiduciary
responsibilities. Accordingly, the Plaintiffs fail to state a claim
for aiding and abetting under the first prong (knowledge of the
other's breach and substantial assistance).
Under the second prong (substantial assistance in committing a
tort, which results in an independent breach of duty to the third
person), the Plaintiffs must show Tongzhao's conduct constituted a
breach of duty. Here, the Plaintiffs do not allege any facts in the
FAC demonstrating anything more than a business relationship
between Tongzhao and the Plaintiffs, Judge Wright holds. The
Plaintiffs argue that the act of filling out immigration documents
created a fiduciary relationship because the documents were
complicated, required more than "mindlessly filling out a form,"
and required Tongzhao to certify that the documents were correct.
Judge Wright holds that the Plaintiffs are wrong. He points out
that simply because immigration forms are "complicated" does not
mean that Tongzhao assumed any duties beyond completing the
immigration documents and ensuring their accuracy. Thus, based on
the facts alleged, the Plaintiffs fail to demonstrate that Tongzhao
aided and abetted a breach of fiduciary duty under the second
prong. Therefore, the Plaintiffs fail to state a claim against
Tongzhao for aiding and abetting a breach of fiduciary duty.
Leave to Amend
The Court finds leave to amend is proper. The Court cannot say that
any amendment would be futile, making dismissal with leave to amend
appropriate. Although the Court grants leave to amend, the
Plaintiffs should not replead their claims without curing the
deficiencies addressed here; any amendment must include
particularized factual allegations establishing Tongzhao or Global
assumed duties beyond those of an ordinary business relationship.
Accordingly, the Plaintiffs' claims are dismissed with leave to
amend.
Conclusion
For the reasons discussed, the Court grants Tongzhao's Motion to
Dismiss to the extent it seeks to dismiss the Plaintiffs' claims
against it for direct breach of fiduciary duty, conspiracy
liability, and aiding and abetting a breach of fiduciary duty. The
Plaintiffs' claims are dismissed with leave to amend. If the
Plaintiffs choose to file a Second Amended Complaint ("SAC"), they
must do so no later than 21 days from the date of this Order. If
the Plaintiffs file a SAC, the Defendants must file their responses
no later than 14 days from the date of the SAC filing.
A full-text copy of the Court's Order dated July 1, 2021, is
available at https://tinyurl.com/4c9bv6ya from Leagle.com.
HOPEBRIDGE LLC: Class Cert. Bid Must Be Filed by August 26, 2022
----------------------------------------------------------------
In the class action lawsuit captioned as RYAN MYRES v. HOPEBRIDGE,
LLC, Case No. 2:20-cv-05390-EAS-KAJ (S.D. Ohio), the Hon. Judge
Kimberly A. Jolson entered an order adopting the following
schedule:
-- The parties shall exchange initial disclosures by August
13, 2021.
-- The Defendant contends that the Court cannot properly
exercise personal jurisdiction over the claims of any opt-
in plaintiffs whose claims have no connection to Ohio. In
its June 29, 2021 Opinion and Order, the Court
conditionally certified Plaintiffs' proposed class and
declined to apply Bristol-Myres Squibb Co. v. Superior
Court of California, 137 S. Ct. 1773 (2017) to this case.
-- Any motion to amend the pleadings or to join additional
parties shall be filed by January 28, 2022. The motion for
class certification shall be filed by August 26, 2022. The
the Defendant's motion for decertification of any
conditionally certified Fair Labor Standards Act (FLSA)
collective action shall be filed by August 26, 2022.
-- The parties agree that all discovery shall be completed by
July 29, 2022.
-- Any dispositive motions shall be filed by December 2,
2022.
-- Primary expert reports must be produced by 60 days after
rulings on dispositive motions.
-- Rebuttal expert reports must be produced by 45 days after
primary expert reports.
-- Plaintiff shall make a settlement demand within 30 days of
receipt of payroll and timekeeping records for Named
Plaintiffs and all individuals who elect to opt-in to the
FLSA collective.
This is a putative collective and class action brought by the
Plaintiffs Ryan Myres and Aaliyah Thompson, individually and on
behalf of others similarly situated, based on their allegation that
Defendant Hopebridge, LLC failed to pay employees overtime wages in
purported violation of the FLSA, the Ohio Minimum Fair Wage
Standards Act, and the Ohio Prompt Pay Act. The Plaintiffs further
allege that Defendant violated Article II, Section 34a of the Ohio
Constitution and its record-keeping requirements.
A copy of the Court's order dated July 15, 2021 is available from
PacerMonitor.com at https://bit.ly/3i10RzJ at no extra charge.[CC]
HP INC: Faces Barnert Suit Over Misleading Instant Ink Program
--------------------------------------------------------------
RADEK BARNERT, individually and on behalf of all others similarly
situated, Plaintiff v. HP, INC. d/b/a HP COMPUTING AND PRINTING
INC., Defendant, Case No. 5:21-cv-05199-SVK (N.D. Cal., July 6,
2021) alleges that the Defendant is engaged in unlawful business
practice regarding its instant ink program.
According to the complaint, the Defendant HP launched its
subscription-based "Instant Ink" program (the "Program"), which is
supposed to provide owners of HP printers with an essentially
endless supply of printer ink—without ever having to wait to
purchase new ink cartridges—because replacement ink cartridges
are always at the ready.
Specifically, HP routinely fails to timely provide Subscribers with
replacement printer cartridges, and, even when it does, Subscribers
find themselves overwhelmed with errors that prevent them from
printing. Put another way, besides being unable to keep its
printers stocked with ink, HP's printers commonly display error
messages that render them inoperable, even when ink is available.
As a result, Subscribers have been unable to use their printers for
extended periods of time, rendering their printers entirely
worthless, as those printers cannot accomplish their sole purpose
that is printing, says the suit.
The Program's second catch is that the ink cartridges supplied
through the Program will not function if Subscribers cancel their
subscriptions, meaning that Subscribers must remain subscribed to
the Program in order to use the ink cartridges supplied by HP;
otherwise, they are required to purchase costly replacement ink
cartridges from local retailers to continue using their printers
after cancelation. The result of this restriction is that, upon
cancelation of a subscription to the Program, Subscribers are
effectively required to pay twice for one ink cartridge, as the
Subscribers can no longer use the existing ink cartridge they
received (and paid for) through the Program, and instead they must
prematurely purchase a new ink cartridge to replace the otherwise
useable ink cartridge provided through the Program, the suit
added.
HP Inc. provides imaging and printing systems, computing systems,
mobile devices, solutions, and services for business and home. The
Company offers products which includes laser and inkjet printers,
scanners, copiers and faxes, personal computers, workstations,
storage solutions, and other computing and printing systems. [BN]
The Plaintiff is represented by:
Mark L. Javitch, Esq.
JAVITCH LAW OFFICE
480 S. Ellsworth Ave
San Mateo, CA 94401
Telephone: (650) 781-8000
Facsimile: (650) 648-0705
E-mail: mark@javitchlawoffice.com
INMATE SERVICES: Seeks Filing Extension of Class Cert Transcript
----------------------------------------------------------------
In the class action lawsuit captioned as DANZEL L. STEARNS on
behalf of himself and all similarly situated persons, v. INMATE
SERVICES CORPORATION; RANDY L. CAGLE, JR.; CHRISTOPHER L. WEISS;
RYAN B. MOORE; and DOE 1 to 100, Case No. 3:19-cv-00100-KGB (E.D.
Ark.), the Defendants Inmate Services Corporation and Randy L.
Cagle, Jr. ask the Court to enter an order extending their time to
allow for the production of the transcript and review of same to
August 11, 2021.
The Plaintiff has filed a Motion for Class Certification as to
Defendants Cagle and Inmate Services Corporation. The parties have
conducted the deposition of Plaintiff's expert, Jack Atherton on
July 14, 2021. Mr. Atherton's deposition will yield information
that one side or the other would want to cite in support of the
Motion.
Inmate Services is a law enforcement company.
A copy of the Defendants' motion dated July 15, 2021 is available
from PacerMonitor.com at https://bit.ly/3BzEyZOat no extra
charge.[CC]
The Attorneys for the Defendant Inmate Services Corporation, are:
Mark Mayfield, Esq.
Chuck Gschwend, Esq.
WOMACK PHELPS
PURYEAR MAYFIELD & McNEIL, P.A.
P.O. Box 3077
Jonesboro, AR 72403
Telephone: (870) 932-0900
Facsimile: (870) 932-2553
E-mail: mmayfield@wpmfirm.com
cgschwend@wpmfirm.com
- and -
John T. McLandrich, Esq.
Mazanec, Raskin & Ryder Co., LPA
100 Franklin's Row
34305 Solon Road
Cleveland, OH 44139
Telephone: (440) 248-7906
Facsimile: (440) 248-8861
E-mail: jmclandrich@mrrlaw.com
INTUITIVE SURGICAL: Faces Suit Over Surgical Robot Monopoly
-----------------------------------------------------------
FRANCISCAN ALLIANCE, INC.; and KING COUNTY PUBLIC HOSPITAL DISTRICT
NO. 1 (DBA VALLEY MEDICAL CENTER), Plaintiffs v. INTUITIVE
SURGICAL, INC., Defendant, Case No. 5:21-cv-05198-SK (N.D. Cal.,
July 6, 2021) alleges violation of the Sherman Act.
According to the complaint, the Defendant Intuitive Surgical, Inc.
("Intuitive") dominates the market for minimally invasive surgical
robots with its da Vinci surgical robots. Intuitive's dominance in
this market is so complete that for over a decade Intuitive faced
no competition whatsoever, and even now Intuitive maintains a
market share of at least 98%. Through alleged exclusionary and
anticompetitive conduct, Intuitive abuses this dominance to
monopolize two separate markets: (1) the aftermarket for da Vinci
robot parts and service; and (2) the aftermarket for replacements
and repairs of EndoWrists, the costly, limited-use surgical
instruments (such as graspers, forceps, and scissors) required to
perform surgery with a da Vinci robot.
Despite Intuitive's supracompetitive pricing, Intuitive maintains a
near-stranglehold on this aftermarket by unlawfully leveraging its
dominance in the primary market for minimally invasive surgical
robots to exclude competitors from and minimize competition in the
aftermarket for parts and service for those robots.
Intuitive's monopolization of both the aftermarket for da Vinci
robot parts and service and the aftermarket for replacements and
repairs of EndoWrists is exactly the type of abuse of economic
power that the antitrust laws seek to prevent, added the suit.
Intuitive Surgical, Inc. design, manufactures, and markets surgical
systems. The Company offers endoscopes, endoscopic retractors and
disectors, scissors, scalpels, forceps, needle holders,
electrocautery, ultrasonic cutters, and accessories during surgical
procedures. Intuitive Surgical operates worldwide. [BN]
The Plaintiff is represented by:
Judith A. Zahid, Esq.
Heather T. Rankie, Esq.
James S. Dugan, Esq.
ZELLE LLP
555 12th Street, Suite 1230
Oakland, CA 94607
Telephone: (415) 693-0700
E-mail: jzahid@zelle.com
hrankie@zelle.com
jdugan@zelle.com
INVERSIONES EL ATICO: Fails to Pay Proper Wages, Hortua Alleges
---------------------------------------------------------------
IVAN HORTUA, individually and on behalf of all others similarly
situated, Plaintiff v. INVERSIONES EL ATICO INC.; and CAROLINA LEON
PULGARIN, Defendants, Case No. 9:21-cv-81181 (S.D. Fla., July 6,
2021) seeks to recover from the Defendants unpaid wages and
overtime compensation, interest, liquidated damages, attorneys'
fees, and costs under the Fair Labor Standards Act.
Plaintiff was employed by the Defendants as server.
INVERSIONES EL ATICO INC. owns and operates a restaurant in Boynton
Beach, Florida. [BN]
The Plaintiff is represented by:
Keith M. Stern, Esq.
LAW OFFICE OF KEITH M. STERN, P.A.
80 S.W. 8th Street, Suite 2000
Miami, FL 33130
Telephone: (305) 901-1379
E-mail: employlaw@keithstern.com
-and-
Alberto Naranjo Jr., Esq.
AN LAW FIRM, P.A.
7900 Oak Lane #400
Miami Lakes, FL 33016-5888
Telephone: (305) 942-8070
E-mail: an@anlawfirm.com
JAMES RIVER: Glancy Prongay Reminds of September 7 Deadline
-----------------------------------------------------------
Glancy Prongay & Murray LLP ("GPM") reminds investors of the
upcoming September 7, 2021 deadline to file a lead plaintiff motion
in the class action filed on behalf of investors who purchased or
otherwise acquired James River Group Holdings, Ltd. ("James River"
or the "Company") (NASDAQ: JRVR) common stock between August 1,
2019 and May 5, 2021, inclusive (the "Class Period").
If you suffered a loss on your James River 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/james-river-group-holdings-ltd/.
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 8, 2019, after the market closed, James River disclosed
that it had delivered a notice of early cancellation of all
policies issued to its largest customer, Rasier LLC.
On this news, the Company's share price fell $11.06, or over 23%,
to close at $37.88 per share on October 9, 2019, thereby injuring
investors.
Then, on May 5, 2021, James River announced its first quarter 2021
financial results, reporting "$170.0 million of unfavorable
development in Commercial Auto, primarily driven by a previously
canceled account that has been in runoff since 2019." According to
Bloomberg, the Company announced that it was seeking to raise $175
million through public equity offering, which was priced at "the
sector's steepest discount ever."
On this news, the Company's share price fell $12.27, or 26%, to
close at $34.23 per share on May 6, 2021, thereby injuring
investors further.
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) James River
had not adequately reserved for its Uber policies; (2) James River
was using an incorrect methodology for setting reserves that
materially understated the Company's true exposure to Uber claims;
(3) as a result, James River was forced to increase its unfavorable
reserves in subsequent quarters even after cancelling the Uber
policies; 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 James River common stock
during the Class Period, you may move the Court no later than
September 7, 2021 to request appointment as lead plaintiff in this
putative class action lawsuit. To be a member of the class action
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 action. If you wish to learn more about this class action, or
if you have any questions concerning this announcement or your
rights or interests with respect to the pending class action
lawsuit, 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 Linehan, 310-201-9150 or 888-773-9224
shareholders@glancylaw.com
www.glancylaw.com [GN]
JENN'S ANGELS: Underpays Healthcare Workers, Franklin et al. Claim
------------------------------------------------------------------
DIANA FRANKLIN, TANISHA JACKSON, KIZZY WILLIAMS, and LASANDRA
HARRIS, individually and on behalf of others similarly situated,
Plaintiffs v. JENN'S ANGELS, LLC and JENNIFER GIBSON PEARSON,
Defendants, Case No. 3:21-cv-00399-SDD-SDJ (M.D. La., July 15,
2021) brings this complaint as a collective action against the
Defendants to recover unpaid overtime compensation pursuant to the
Fair Labor Standards Act.
The Plaintiffs, who were employed by the Defendants as healthcare
workers, asserts that the Defendants uniformly misclassified them
and other similarly situated healthcare workers as independent
contractors. Despite regularly working more than 40 hours in a
workweek for the Defendants, the Defendants denied them of overtime
premium at the rate of one and one-half times their regular rate of
pay for all hours worked in excess of 40 per workweek. Instead, the
Defendants paid them straight time only for all hours worked, the
Plaintiffs assert.
The Plaintiffs also seeks liquidated damages equal in amount to the
unpaid compensation, litigation costs and attorneys' fees, pre- and
post-judgment interest, and other relief as may be necessary and
appropriate.
Jenn's Angels, LLC provides companionship services for the elderly,
ill or disabled at various locations, including the patients' homes
and nursing home facilities. Jennifer Gibson Pearson is the owner
and operator of the Corporate Defendant. [BN]
The Plaintiffs are represented by:
Philip Bohrer, Esq.
Scott E. Brady, Esq.
BOHRER BRADY, LLC
8712 Jefferson Highway, Suite B
Baton Rouge, LA 70809
Tel: (225) 925-5297
Fax: (225) 231-7000
E-mail: phil@bohrerbrady.com
scott@bohrerbrady.com
JOHN ROE: Aug. 19 Data Breach Class Action Settlement Hearing Set
-----------------------------------------------------------------
Kristen Taketa, writing for San Diego Union-Tribune, reports that
Haley Dinsmore was 12 when a classmate at Earl Warren Middle School
asked her out. She didn't know the boy, had never talked to him and
felt she was too young to be dating anybody, so she politely
declined.
In the following weeks, the boy retaliated by taking over her
Instagram account, hacking into her family's computer, and sending
death threats, according to a lawsuit Dinsmore and her parents
filed last November.
Later, when Dinsmore and the boy were in high school, the boy --
who the lawsuit identifies as John Roe because he was a minor
--hacked into that school's student information system and lowered
her grades from A's to B's, the lawsuit alleges.
Days later, their school district, San Dieguito Union High, filed a
police report and Roe was arrested. Months later, a data breach in
San Dieguito became the subject of a class-action lawsuit.
Dinsmore, now 18 and a June graduate of Torrey Pines High School in
the San Dieguito Union High School District, sued Roe alleging
emotional and mental distress and seeking punitive damages. She
also is suing Roe's parents, Robert and Diane Baizer.
And she is suing San Dieguito, alleging negligence and that the
district failed to protect her.
"It messed with my self-esteem," Dinsmore said of the ordeal during
a recent interview. "It made me question my whole life."
San Dieguito declined to comment on the case through its attorney.
In legal filings, the district denied responsibility or liability
for the incidents alleged in the lawsuit.
Last month the district sued the company that provided its student
information system, Aeries Software, based in Orange, Calif. The
lawsuit alleges Aeries failed to keep students' information secure.
The district's cross-complaint seeks to recover any claims, losses,
damages, attorney's fees, judgments or settlements it may incur.
Aeries officials declined to comment for this story.
This wasn't the first time Aeries was sued for a data breach. Two
families, including a former San Dieguito parent, filed a
class-action lawsuit in May 2020 against Aeries for a data breach
that coincides with the timeline of the hacking alleged in
Dinsmore's lawsuit.
According to a court filing, Aeries said that 166 school district
databases were exposed to unauthorized access by an individual
beginning in November 2019, but the company did not tell school
districts about the breach until April 2020. Aeries Executive
Director of Operations Jonathan Cotton stated in a court filing
last month that the November breach potentially exposed names, ID
numbers, passwords and addresses for about 1 million students.
Cotton also said the same person got into San Dieguito's database
in January 2020 and potentially gained access to about 98,000
people's account usernames and medical information.
The Dinsmores' lawsuit said January 2020 was when Roe allegedly
changed Dinsmore's grades. It is unclear from the lawsuit whether
the two are connected.
A potential settlement of the class action suit against Aeries that
would pay victims up to $10,000 each -- for a total of $1.75
million -- is set for an Aug. 19 hearing.
For the Dinsmores' lawsuit, the Baizers generally deny all the
allegations in the suit and specifically deny the Dinsmores' claim
that they were negligent in supervising their son, said their
attorney, Pete Doody, during a recent interview.
"As the facts will come out, that is certainly not the situation or
the case. They were very good and attentive parents," Doody said.
During a court hearing last summer, Roe read an apology letter to
Haley Dinsmore, Heather Dinsmore, Haley's mother, said.
An uncomfortable situation
Cyberbullying has been on a steady rise, experts say. About one in
four high school students nationwide reported being bullied in
2019, according to the Centers for Disease Control and Prevention.
Dating and relationships are among the most common reasons for the
bullying, said Nancy Willard, director of Embrace Civility, a
bullying prevention organization.
California's education laws give schools and districts the
authority to suspend or expel students who commit in-person or
online bullying.
"That clearly lays out the school should be taking action," said
Deborah Temkin, vice president for youth development and education
research at Child Trends.
The events alleged in the Dinsmore's lawsuit represent an extreme
case, she said, and appear to go beyond bullying.
According to Dinsmore's lawsuit, Roe's harassment began in April
2016, when he and Dinsmore were middle school students. Dinsmore
told him multiple times she did not want to date him, but Roe
frequently sent her Instagram messages until she blocked him, her
lawsuit says.
"It was kind of weird and uncomfortable and we didn't have any of
the same friends," Dinsmore said in a recent interview. "Looking
back, clearly I was very much within my right to say no."
Later in the summer, the lawsuit said, Roe hacked into her
Instagram account, changed her password, and put an image of a
brick wall on her page. Then he created a fake Instagram account
impersonating Dinsmore.
He also hacked into her family's computer and published their
passwords and account information on the internet, the suit said.
He also called her home, as early as 4:30 a.m., and left several
menacing messages in which he called Dinsmore a whore and
threatened to kill her, according to the lawsuit.
The Dinsmores said they reported the alleged harassment to the
sheriff's department, which facilitated a meeting between both sets
of parents.
The Dinsmores agreed not to file criminal charges against Roe in
exchange for the Baizers' agreement to send their son to a
psychiatrist and to put him in a different high school than the one
Haley Dinsmore planned to attend, Torrey Pines, the lawsuit said.
The harassment subsided during their eighth and ninth grades, the
lawsuit said, and Roe attended Canyon Crest Academy. In 10th grade,
Roe transferred into Torrey Pines High because Canyon Crest Academy
was not a good academic fit for Roe, Doody said.
According to the lawsuit, the Baizer parents promised the Dinsmores
that Roe would stay away from Haley while at Torrey Pines.
Haley's mother, Heather Dinsmore, warned school officials about
Roe's past alleged behavior and asked them to provide security for
her daughter. But when she gave them a file with documents about
the allegations, school administrators would not look at it, the
lawsuit said.
In January 2020, during finals week of Haley Dinsmore's junior
year, she said she noticed that some of her grades had suddenly
fallen from A's to B's. She had been watching her grades "like a
hawk" and was doing well in her classes, she said, and there were
no new assignments that could have affected the grades.
She reported the grade changes to her teachers, but they accused
her of being paranoid, she said.
Days later, Dinsmore received social media messages from one of
Roe's friends telling her that Roe had hacked her records and
changed her grades, the lawsuit said. Soon after, Dinsmore saw her
grades suddenly rise back to A's, but with scores that were higher
than before, she said.
Dinsmore again told school staff but they did not believe her, she
said.
"Nobody was listening to me," Dinsmore said. "Nobody was willing to
help me."
Five days later, the district called San Diego police, who came to
the school and pulled Haley Dinsmore out of a class she shared with
Roe to question her. Later that day, police took Roe out of class
and arrested him, the lawsuit alleges.
Heather Dinsmore said Haley was humiliated and embarrassed because
her classmates had connected her with Roe's arrest.
The next day, San Dieguito told district families it was shutting
down outside access to the Aeries program because of security
issues.
Eight months later, in September 2020, Haley Dinsmore received a
letter from Aeries Software alerting her that somebody had gotten
unauthorized access to San Dieguito's student information system
from April 2019 to January 2020. The district also alleged in its
lawsuit against Aeries that a male student had changed Dinsmore's
and other students' records.
Haley Dinsmore said the harassment she alleged in her lawsuit hurt
her self-esteem, her standing with her peers and her mental health.
The alleged grade manipulation also ruined her confidence in school
and may have disrupted her chances of getting into good colleges,
she said.
Sometimes, when she was alone at night, she felt she was being
watched.
"The paranoia is just kind of ingrained in me," she said.
She has been going to therapy for more than a year. She said San
Dieguito paid for it for a time and then stopped when she
graduated. [GN]
JPMORGAN CHASE: Lawyer Discusses Forex Rigging Class Action
-----------------------------------------------------------
Kirstin Ridley, writing for Reuters, reports that a proposed
multi-billion pound claim against powerful banks over alleged
foreign exchange (forex) rigging is too weak and speculative to be
allowed to proceed as a U.S.-style class action, the banks' lawyer
told a London court on July 14.
Brian Kennelly said JPMorgan, Citigroup, Barclays, UBS, NatWest and
MUFG Bank were not trying to stifle or delay any lawsuit that might
be brought by thousands of claimants.
But he told a five-day hearing at London's specialist Competition
Appeal Tribunal (CAT), to determine whether a class action can
proceed: "We say the weaker the claims or more complex or difficult
the claims, the more appropriate it is to try them in 'opt in'
proceedings."
Critics of U.S.-style "opt out" class actions, which automatically
bind a defined group into a lawsuit unless individuals opt out, say
they can lead to vast claims, claims without merit and lush profits
for litigators and their funders.
Proponents say they allow easier access to justice, as some
individual claims are too small to pursue individually, provide a
deterrent against misconduct and that "opt in" lawsuits, where
every claimant signs up, are costly and time-consuming.
Bank forex customers are also worried they risk damaging banking
relationships if they actively participate in an opt-in lawsuit,
according to court filings. But Kennelly questioned why banks would
risk losing customers.
Investment banks across the globe have paid more than a combined
$11 billion in fines to settle U.S. and European regulatory
allegations that traders rigged forex markets.
But it was the European Commission that paved the way for this
proposed lawsuit by fining banks more than 1 billion euros ($1.2
billion) in 2019 over two forex cartels, dubbed "Essex Express" and
"Three Way Banana Split", between 2007 and 2013.
Michael O'Higgins, the former chairman of British watchdog The
Pensions Regulator, and Phillip Evans, a former inquiry chair at
the Competition Markets Authority, are now vying to lead a class
action on behalf of claimants such as asset managers, pension funds
and financial institutions.
Foreign exchange is the crown jewel of London's financial sector.
Around 43% percent of the $8.3 trillion-per-day forex market is
traded in the city.
O'Higgins has instructed U.S. law firm Scott & Scott while Evans is
being advised by Hausfeld -- the two litigators that co-led a
similar U.S. case against 15 banks and helped secure $2.3 billion
in settlements for American claimants.
The CAT will decide whether to allow a planned lawsuit to proceed
as a so-called collective action and which, if any, class
representative should lead it. [GN]
KANZHUN LIMITED: Klein Law Firm Reminds of Sept. 10 Deadline
------------------------------------------------------------
The Klein Law Firm on July 19 disclosed that a class action
complaint has been filed on behalf of shareholders of Kanzhun
Limited (NASDAQ: BZ) alleging that the Company violated federal
securities laws.
Class Period: June 11, 2021 and July 2, 2021
Lead Plaintiff Deadline: September 10, 2021
No obligation or cost to you.
Learn more about your recoverable losses in BZ:
https://www.kleinstocklaw.com/pslra-1/kanzhun-limited-loss-submission-form?id=17759&from=5
Kanzhun Limited NEWS - BZ NEWS
CLASS ACTION CASE DETAILS: The filed complaint alleges that Kanzhun
Limited made materially false and/or misleading statements and/or
failed to disclose that: (1) Kanzhun would face an imminent
cybersecurity review by the Chinese government ("CAC"); (2) the CAC
would require Kanzhun to suspend new user registration on its BOSS
Zhipin app; (3) Kanzhun needed to "to conduct a comprehensive
examination of cybersecurity risks"; (4) Kanzhun needed to "enhance
its cybersecurity awareness and technology capabilities"; and (5)
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.
WHAT THIS MEANS TO YOU AS A SHAREHOLDER: If you have suffered a
loss in Kanzhun you have until September 10, 2021 to petition the
court for lead plaintiff status. Your ability to share in any
recovery doesn't require that you serve as a lead plaintiff.
NO COST TO YOU: If you purchased Kanzhun securities during the
relevant period, you may be entitled to compensation without
payment of any out-of-pocket fees.
HOW TO PROTECT YOUR FINANCIAL INTERESTS: For additional information
about the BZ lawsuit, please contact J. Klein, Esq. by telephone at
212-616-4899.
ABOUT KLEIN LAW FIRM
J. Klein, Esq. represents investors and participates in securities
litigations involving financial fraud throughout the nation. The
Klein Law Firm is a boutique litigation firm with experience in a
wide range of areas including securities law, corporate finance and
commercial litigation. Since 2011, our experienced attorneys have
achieved superior results for our clients with a personalized
focus. Attorney advertising. Prior results do not guarantee similar
outcomes.
CONTACT:
J. Klein, Esq.
Empire State Building
350 Fifth Avenue
59th Floor
New York, NY 10118
jk@kleinstocklaw.com
Telephone: (212) 616-4899
Fax: (347) 558-9665
www.kleinstocklaw.com [GN]
KANZHUN LIMITED: Wolf Haldenstein Reminds of Sept. 10 Deadline
--------------------------------------------------------------
Wolf Haldenstein Adler Freeman & Herz LLP on July 14 disclosed that
a federal securities class action lawsuit has been filed against
Kanzhun Limited ("Kanzhun" or the "Company") (NASDAQ: BZ) in the
United States District Court for the District of New Jersey on
behalf of those who purchased or otherwise acquired American
Depositary Receipts ("ADRs") of Kanzhun between June 11, 2021 and
July 2, 2021, inclusive (the "Class Period").
All investors who purchased the ADRs of Kanzhun Limited and
incurred losses are urged to contact the firm immediately at
classmember@whafh.com or (800) 575-0735 or (212) 545-4774. You may
obtain additional information concerning the action or join the
case on our website, www.whafh.com.
If you have incurred losses in the ADRs of Kanzhun Limited, you
may, no later than September 10, 2021, request that the Court
appoint you lead plaintiff of the proposed class. Please contact
Wolf Haldenstein to learn more about your rights as an investor in
the ADRs of Kanzhun Limited.
In June 2021, Kanzhun sold about 48 million ADRs in its initial
public offering (the "IPO") for $19 per share, raising nearly $912
million in new capital.
On July 5, 2021, Kanzhun announced that the Company was subject to
a review by the Cyberspace Administration of China ("CAC") and
that, during the review period, Kanzhun's "BOSS Zhipin app is
required to suspend new user registration in China."
On this news, the Company's ADR price fell $5.79 per ADR, or 15%,
to close at $30.52 per ADR on July 6, 2021.
Wolf Haldenstein has extensive experience in the prosecution of
securities class actions and derivative litigation in state and
federal trial and appellate courts across the country. The firm has
attorneys in various practice areas; and offices in New York,
Chicago and San Diego. The reputation and expertise of this firm in
shareholder and other class litigation has been repeatedly
recognized by the courts, which have appointed it to major
positions in complex securities multi-district and consolidated
litigation.
If you wish to discuss this action or have any questions regarding
your rights and interests in this case, please immediately contact
Wolf Haldenstein by telephone at (800) 575-0735, via e-mail at
classmember@whafh.com, or visit our website at www.whafh.com.
Contact:
Wolf Haldenstein Adler Freeman & Herz LLP
Patrick Donovan, Esq.
Gregory Stone, Director of Case and Financial Analysis
Email: gstone@whafh.com, donovan@whafh.com or
classmember@whafh.com
Tel: (800) 575-0735 or (212) 545-4774 [GN]
KENSINGTON REDWOOD: Tolosa Suit Moved to N.D. California
--------------------------------------------------------
The case styled as Emily Tolosa, on behalf of herself and on behalf
of all persons similarly situated v. Kensington Redwood City LLC,
Kensington Senior Living, LLC, Case No. 21-CIV-03030 was
transferred from the San Mateo County Superior Court to the U.S.
District Court for the Northern District of California on July 20,
2021.
The District Court Clerk assigned Case No. 3:21-cv-05564 to the
proceeding.
The nature of suit is stated as Other Labor.
Kensington Redwood -- https://kensingtonplaceredwoodcity.com/ -- is
an assisted living facility in Redwood City, California.[BN]
The Plaintiff appears pro se.
KLEEN HARVEST: Ruiz Files Suit in Cal. Super. Ct.
-------------------------------------------------
A class action lawsuit has been filed against KLEEN HARVEST, INC.
The case is styled as Lluviana Ruiz, on behalf of herself and all
others similarly situated v. KLEEN HARVEST, INC., a California
corporation, Case No. 21CV002319 (Cal. Super. Ct., Monterey Cty.,
July 21, 2021).
The case type is stated as "Other Employment Unlimited."
KLEEN HARVEST is in the Farm Labor Contractors and Crew Leaders and
offers agricultural production in Salinas, California.[BN]
The Plaintiff is represented by:
David D. Bibiyan, Esq.
BIBIYAN LAW GROUP, P.C.
8484 Wilshire Blvd., Ste. 500
Beverly Hills, CA 90211-3243
Phone: (310) 438-5555
Fax: (310) 300-1705
Email: david@tomorrowlaw.com
KONINKLIJKE PHILIPS: Devices Contain PE-PUR Foam, Heilman Suit Says
-------------------------------------------------------------------
ELIZABETH HEILMAN, on behalf of himself and all others similarly
situated v. KONINKLIJKE PHILIPS N.V.; PHILIPS NORTH AMERICA LLC;
and PHILIPS RS NORTH AMERICA LLC, Case No. 2:21-cv-00862-MRH (W.D.
Pa. July 5, 2021) is a class action complaint on behalf of himself
and a proposed class of purchasers and users of Continuous Positive
Airway Pressure (CPAP) and Bi-Level Positive Airway Pressure
(Bi-Level PAP) devices and mechanical ventilators manufactured by
Philips, which contain polyester-based polyurethane sound abatement
foam ("PE-PUR Foam").
According to the complaint, on April 26, 2021, Philips made a
public announcement disclosing it had determined there were risks
that the PE-PUR Foam used in certain CPAP, Bi-Level PAP, and
mechanical ventilator devices it manufactured may degrade or
off-gas under certain circumstances.
On June 14, 2021, Royal Philips issued a recall in the United
States of its CPAP, Bi-Level PAP, and mechanical ventilator devices
containing PE-PUR Foam, because Philips had determined that (a) the
PE-PUR Foam was at risk for degradation into particles that may
enter the devices' pathway and be ingested or inhaled by users, and
(b) the PE-PUR Foam may off-gas certain chemicals during operation.
Philips further disclosed in its Recall Notice that "these issues
can result in serious injury which can be life-threatening, cause
permanent impairment, and/or require medical intervention to
preclude permanent impairment," says the suit.
Philips has allegedly disclosed that the absence of visible
particles in the devices does not mean that PE-PUR Foam breakdown
has not already begun. Philips reported that lab analysis of the
degraded foam reveals the presence of harmful chemicals, including:
Toluene Diamine ("TDA"), Toluene Diisocyanate ("TDI"), and
Diethylene Glycol ("DEG").
Prior to issuing the Recall Notice, Philips received complaints
regarding the presence of black debris/particles within the airpath
circuit of its devices (extending from the device outlet,
humidifier, tubing, and mask). Philips also received reports of
headaches, upper airway irritation, cough, chest pressure and sinus
infection from users of these devices, added the suit.
In its Recall Notice, Philips disclosed that the potential risks of
particulate exposure to users of these devices include: irritation
(skin, eye, and respiratory tract), inflammatory response,
headache, asthma, adverse effects to other organs (e.g., kidneys
and liver) and toxic carcinogenic affects. The potential risks of
chemical exposure due to off-gassing of PE-PUR Foam in these
devices include: headache/dizziness, irritation (eyes, nose,
respiratory tract, skin), hypersensitivity, nausea/vomiting, toxic
and carcinogenic effects.
Philips recommended that patients using the recalled CPAP and
Bi-Level PAP devices immediately discontinue using their devices
and that patients using the recalled ventilators for
life-sustaining therapy consult with their physicians regarding
alternative ventilator options, the suit further asserts.
In 2013, Plaintiff Starner purchased a Philips Respironics Remstar
Pro CPAP device that he used nightly from January 2013 until April
2018. On April 26, 2018, Plaintiff Starner purchased a Philips
DreamStation Auto CPAP device, which he used nightly from the date
of receipt until June 26, 2021. On June 26, 2021, Plaintiff Starner
received an email from CPAP.com advising him that his Philips'
Respironics Remstar Pro and DreamStation Auto CPAP devices were
subject to a recall due to the presence of a dangerous PE-PUR Foam
that could cause him to suffer from adverse health effects,
including, inter alia, cancer and organ failure. The Plaintiff
Starner was advised to discontinue use of the devices. He was also
advised to verify whether his devices were subject to the recall by
submitting the serial numbers for his devices to an online database
Philips established. Plaintiff Starner received confirmation that
both his CPAP devices were subject to recall.
In addition, Plaintiff Starner seeks medical monitoring damages for
users of Philips' devices identified in the Recall Notice, who are
at risk of suffering from serious injury, including irritation
(skin, eye, and respiratory tract), inflammatory response,
headache, asthma, adverse effects to other organs (e.g., kidneys
and liver) and toxic carcinogenic affects.
Royal Philips is a Dutch multinational corporation with its
principal place of business located in Amsterdam, Netherlands.
Royal Philips is the parent company of the Philips Group of
healthcare technology businesses, including Connected Care
businesses focusing on Sleep & Respiratory Care. Royal Philips
holds directly or indirectly 100% of its subsidiaries Philips NA
and Philips RS. Royal Philips controls Philips NA and Philips RS in
the manufacturing, selling, distributing, and supplying of the
recalled CPAP, Bi-Level PAP, and mechanical ventilator devices.
Philips NA is a Delaware corporation with its principal place of
business located at 222 Jacobs Street, Floor 3, Cambridge,
Massachusetts 02141. Philips NA is a wholly-owned subsidiary of
Royal Philips.[BN]
The Plaintiff is represented by:
Steven A. Schwartz, Esq.
Benjamin F. Johns, Esq.
Beena M. McDonald, Esq.
Alex M. Kashurba, Esq.
CHIMICLES SCHWARTZ KRINER &
DONALDSON-SMITH LLP
361 W. Lancaster Avenue
Haverford, PA 19041
Telephone: (610) 642-8500
Facsimile: (610) 649-3633
E-mail: sas@chimicles.com
bfj@chimicles.com
bmm@chimicles.com
amk@chimicles.com
LAPHAM-HICKEY STEEL: Fails to Pay Proper OT Wages, Rodriguez Says
-----------------------------------------------------------------
JOHN RODRIGUEZ, individually and on behalf of all other persons
similarly situated, known and unknown v. LAPHAM-HICKEY STEEL CORP.,
Case: 1:21-cv-03791 (N.D. Ill., July 15, 2021) arises from the
Defendant's failure to pay overtime wages based on the correct
regular rate of pay to Plaintiff and other bonus-eligible hourly
employees in violation of the Fair Labor Standards Act (FLSA) and
the Illinois Minimum Wage Law.
The complaint alleges that during the course of Plaintiff's
employment by Defendant, Defendant paid overtime pay to Plaintiff
for hours he worked in excess of forty hours in individual work
weeks, but did not include the bonuses he earned into his regular
rate of pay when calculating his overtime wages. Defendant's
failure to pay Plaintiff overtime wages at a rate of one and half
times his regular rate of pay for all time worked in excess of
hours in individual work weeks violated the FLSA, says the
complaint.
Plaintiff was employed by Defendant from approximately 1991 to
August 2019.
Defendant is an Illinois corporation with principal place of
business located at 5500 W 73rd St., Bedford Park, Illinois
60638.[BN]
The Plaintiff is represented by:
Michael L. Fradin, Esq.
8401 Crawford Ave. Ste. 104
Skokie, IL 60076
Telephone: 847-986-5889
E-mail: mike@fradinlaw.com
LEWIS UNIVERSITY: Miller Appeals Tuition Refund Suit Dismissal
--------------------------------------------------------------
Plaintiff Brianna Miller filed an appeal from a court ruling
entered in the lawsuit styled BRIANNA MILLER, on behalf of herself
and all others similarly situated v. LEWIS UNIVERSITY, Case No.
1:20-cv-05473, in the U.S. District Court for the Northern District
of Illinois, Eastern Division.
As reported in the Class Action Reporter on Oct. 5, 2020, the
lawsuit is brought on behalf of all persons, who paid, or will pay,
tuition and fees to attend Lewis University for an in person,
hands-on educational services and experiences for the semesters or
terms affected by Coronavirus Disease 2019.
According to the complaint, the Defendant failed to refund any
amount of the tuition or any of the mandatory fees paid by the
Plaintiff and the Class members, even though it has implemented
online only distance learning starting on March 12, 2020, in
response to the COVID-19 pandemic. The University's failure to
provide the services for which tuition and the mandatory fees were
intended to cover since approximately March 12 is a breach of the
contracts between the University and her and the members of the
Class, and it is unjust, the Plaintiff says.
The Plaintiff was an undergraduate student of the University during
the Spring 2020 semester. She seeks for herself and Class members
protections including injunctive and declaratory relief protecting
Class Members from paying the full cost of tuition and fees during
the pendency of the pandemic in light of the educational services,
opportunities, and experiences the Defendant can actually safely
provide.
Ms. Miller now seeks a review of the Court's Memorandum Opinion and
Order dated April 11, 2021, granting Defendant's motion to dismiss
the case.
The appellate case is captioned as Brianna Miller v. Lewis
University, Case No. 21-2193, in the U.S. Court of Appeals for the
Seventh Circuit, filed on June 28, 2021.
The briefing schedule in the Appellate Case states that appellant's
brief is due on or before August 9, 2021 for Brianna Miller.[BN]
Plaintiff-Appellant BRIANNA MILLER, on behalf of herself and all
others similarly situated, is represented by:
Kathleen P. Lally, Esq.
CARLSON LYNCH LLP
111 W. Washington Street
Chicago, IL 60602
Telephone: (312) 750-1265
E-mail: klally@carlsonlynch.com
Defendant-Appellee LEWIS UNIVERSITY is represented by:
Robert T. Zielinski, Esq.
MILLER CANFIELD PADDOCK & STONE
225 W. Washington Street
Chicago, IL 60606-0000
Telephone: (312) 460-4216
E-mail: zielinski@millercanfield.com
LOEWS HOLLYWOOD: Ogletree Deakins Attorneys Discuss Court Ruling
----------------------------------------------------------------
Michael J. Nader, Esq., and Robert R. Roginson, Esq., of Ogletree,
Deakins, Nash, Smoak & Stewart, P.C., in an article for The
National Law Review, report that on July 15, 2021, the California
Supreme Court issued a decision that will increase dramatically
California employers' potential liability for missed meal, rest,
and recovery breaks. In Ferra v. Loews Hollywood Hotel, LLC, the
court unanimously held that employers must pay premium payments to
employees for missed meal, rest, and recovery breaks at the
employee's "regular rate of pay" instead of their base hourly rate,
as many employers were doing. The regular rate of pay may be higher
than the base hourly rate because the regular rate of pay must
include all nondiscretionary incentive payments such as bonuses and
commissions. Moreover, because the court's decision applies
retroactively, the court created exposure for California employers
that acted in good faith trying to comply with the law by paying
premium pay at the base hourly rate. California employers should
expect a new wave of class action and Private Attorney General Act
(PAGA) claims based on this decision.
Background
Jessica Ferra was a bartender for Loews, who earned an hourly wage
as well as quarterly nondiscretionary incentive payments. According
to Loews's meal and rest break policy, hourly employees who are not
provided with a compliant meal or rest period are entitled to an
additional hour of pay according to their base hourly wage at the
time the meal or rest period was not provided. Loews did not factor
in nondiscretionary payments (like Ferra's quarterly incentive
payments), which employees may have earned in addition to hourly
wages, into the calculation of premium pay owed under section
226.7(c) of the California Labor Code.
Ferra alleged that "Lowes, by omitting nondiscretionary incentive
payments from its calculation of premium pay, failed to pay her for
noncompliant meal or rest breaks in accordance with her 'regular
rate of compensation' as required by section 226.7(c)." The trial
court ruled in favor of Loews, and the appellate court affirmed.
The California Supreme Court reversed, concluding that premiums
paid for break violations must be at the higher "regular rate of
pay," which must include a calculation of incentive compensation in
its rate.
Regular Rate of Pay for Overtime
California law provides that daily overtime rates are multiples of
employees' regular rates of pay. The overtime rate for workers who
are paid a guaranteed hourly rate and performance-based incentive
bonuses or piecework earnings take those incentive payments to be
part of their regular rates—making the overtime pay greater than
their base hourly rate. An employee is thus entitled to one and
one-half times his or her regular rate of pay for time worked in
excess of 8 hours in one day and double his or her regular rate of
pay for time worked more than 12 hours in one day.
The court explained that the reasoning behind application of the
regular rate of pay includes the California legislature's
statements that "[t]he eight-hour workday is the mainstay of
protection for California's working people," "[n]umerous studies
have linked long work hours to increased rates of accident and
injury," and "[f]amily life suffers when either or both parents are
kept away from home for an extended period of time on a daily
basis." The court also noted that the higher overtime rate serves
as a disincentive against requiring employees to work overtime.
Regular Rate of Compensation
California law also requires premium payments for meal, rest, and
recovery break violations. "If an employer does not provide an
employee with a compliant meal, rest, or recovery period, …
section 226.7(c) [of the Labor Code] requires the employer to 'pay
the employee one additional hour of pay at the employee's regular
rate of compensation.'" Loews argued for the application of the
canon of statutory interpretation that "a lawmaker is presumed to
intend a different meaning when it uses different words in a
statutory scheme." Because the legislature used the term "regular
rate of compensation" instead of "regular rate of pay," many courts
concluded that the legislature intended premium payments to be paid
at the base hourly rate of pay.
The California Supreme Court disagreed. The court applied a
different principle of construction that provides that "where
statutes use synonymous words or phrases interchangeably, those
words or phrases should be understood to have the same meaning."
The court concluded that the legislature and the courts had used
the terms "pay" and "compensation" interchangeably, and thus the
court interpreted the legislature's intent to apply the same
meaning to both terms.
The court also identified several policy reasons to apply the
regular rate of pay to premium payments, including that "when
[employees] are forced to work through break periods, [there are]
'greater risks of work-related accidents and increased stress,'"
and "denials of 'time free from employer control that is often
needed to be able to accomplish important personal tasks.'"
The court also notes that "[w]hen construing the Labor Code and
wage orders, [the court] adopt[s] the construction that best gives
effect to the purpose" of protecting employees regarding "working
conditions, wages, and hours." Thus, the court "liberally
construe[s] the Labor Code and wage orders to favor the protection
of employees."
Retroactive Application
The court concluded the opinion by clarifying that its decision
applies retroactively, unpersuaded by the potential exposure such a
determination presented to employers:
Loews argues that our decision will have a substantive effect
because it will expose employers to "millions" in liability. But
Loews cites no evidence that retroactive application of our holding
will expose employers to "millions" in liability, and even if Loews
were correct, it is not clear why we should favor the interest of
employers in avoiding "millions" in liability over the interest of
employees in obtaining the "millions" owed to them under the law.
California employers can expect a new deluge of class and
collective actions seeking statutory and civil penalties for
failing to pay meal, rest, and recovery break premiums at the
regular rate of pay.
Key Takeaways
In light of the court's decision, California employers may want to
consider taking the following steps:
Update Premium Pay Systems
Employers may want to update their premium payment systems to pay
any meal, rest, or recovery period premium payments in accordance
with the applicable regular rate of pay. Because premium payments
are often due before earned incentive compensation is final and can
be calculated, employers may want to develop a process of
retroactively making "true up" payments at the regular rate of pay
for break premiums previously paid.
Restitution Payments
Employers may want to provide restitution payments to employees who
received premium payments in prior periods at the base rate only
rather than the regular rate of pay, may help to avoid the costs of
litigation, including statutory and civil penalties, attorneys'
fees, and related costs.
Incentive Compensation Programs
Employers may find it useful to modify or eliminate incentive
compensation programs that unreasonably increase the administrative
burden of having to make retroactive "true up" calculations for
premium payments.
Waiver Programs
Employers may want to adopt a first and second meal break waiver
program that enables employees to voluntarily waive their first
meal break for shifts of 6 hours or less, and their second meal
breaks for shifts that are more than 10 hours (but not more than 12
hours) long,.
Attestation Programs
In light of the state high court's decision, employers may want to
implement an attestation program through which employees can
confirm, on a regular basis, whether they received legally
compliant opportunities to take timely and duty-free meal, rest,
and recovery breaks.
During its current term, the California Supreme Court is also
considering another case addressing the question of whether break
premiums should be treated as "wages" that must be accurately
recorded on wage statements and are susceptible to waiting time
penalties if not paid to departing employees on a timely basis.
Now, more than ever, California employers may want to closely
review their meal, rest, and recovery break policies and practices
to help avoid mounting class and PAGA liability exposure. [GN]
LOS ANGELES, CA: Court OKs Safaie's Bid for Class Certification
---------------------------------------------------------------
In the class action lawsuit captioned as REZA SAFAIE, on behalf of
himself and all others similarly situated, v. CITY OF LOS ANGELES,
et al., Case No. 2:19-cv-03921-FMO-PJW (C.D. Cal.), the Hon. Judge
Fernando M. Olguin entered an order:
1. The Plaintiff's Motion for Class Certification is granted.
The court will certify a Rule 23(b)(2) injunctive and
declaratory relief-only class and a Rule 23(b)(3) damages-
only class, both defined as:
"All persons who have had and/or will have a chalk mark
placed on one of the tires of a vehicle they owned or
permissively operated from May 4, 2017 to the present, by
an employee or agent of the City of Los Angeles or the Los
Angeles Department of Transportation, throughout the
territorial limits of the City of Los Angeles, to obtain
information to justify the issuance of a parking ticket,
and who received and paid a parking ticket as a result of
such action."
2. The court hereby appoints Reza Safaie as the
representative of the certified classes.
3. The court hereby appoints Hariri Law Group and Khashayar
Law Group as joint class counsel.
The court "finds that certifying the classes here as both
damages-seeking classes under Rule 23(b)(3) and injunctive [and
declaratory] relief only classes under Rule 23(b)(2) is appropriate
and promotes judicial efficiency."
On May 4, 2019, Safaie, on behalf of himself and all others
similarly situated, filed the operative Complaint against the City
of Los Angeles and the Los Angeles Department of Transportation
asserting a single claim under 42 U.S.C. section 1983.
The Plaintiff alleges that defendants violated his Fourth Amendment
right to be free from unreasonable search and seizure of his
property when defendants marked his vehicle with chalk for law
enforcement purposes as part of a policy, custom, and/or practice
in issuing municipal parking citations.
A copy of the Court's order dated July 12, 2021 is available from
PacerMonitor.com at https://bit.ly/3eFdv5o at no extra charge.[CC]
MATCH GROUP: D'Alessio Sues Over Deceptive Online Dating Service
----------------------------------------------------------------
NEAL D'ALESSIO, KIMBERLY STEVENS, and MARK BECK, individually and
on behalf of all others similarly situated, Plaintiff v. MATCH
GROUP, LLC, Defendant, Case No. 1:21-cv-05765 (S.D.N.Y., July 6,
2021) is an action alleging the Defendant's practice of using a
variety of deceptive and unfair means to trick consumers into
purchasing subscriptions to use Defendant's online dating service,
even where Defendant knows that these consumers are being targeted
by scam artists and are at risk of being defrauded, and then
prevent its users from cancelling their subscriptions and obtaining
the full benefits for which they paid.
According to the complaint, the Defendant operates Match.com, one
of the world's largest dating Web portals. The company's diverse
portfolio of apps and products brands includes Tinder,
PlentyOfFish, Meetic, OkCupid, and Hinge.
Allegedly, the Defendant is well aware of the prevalence of scam
artists and criminals on its platform. Indeed, Defendant created an
internal process to screen for users who appear to be illegitimate
or attempting to perpetrate some form of fraud using Defendant's
platform. Through this screening process, Defendant has the
capability of blocking communications from suspected fraudsters,
and has in fact used that technology to prevent suspected
fraudulent communications from being sent to paid subscribers.
However, until approximately mid-2018, Defendant knowingly allowed
such fraudulent communications to be sent to "free" users - i.e.,
the users that Defendant was hoping to entice into upgrading to a
paid subscription.
As a result, for years the Defendant knowingly passed along
millions of fraudulent communications to their "free" users, well
aware that a significant number of these communications were
intended to entrap the users in a scam. Placing its own greed ahead
of the interests of its customers, Defendant ignored the obvious
harm of its actions because it knew that many of these fraudulent
communications would entice the users into purchasing a
subscription, added the suit.
MATCH GROUP, LLC owns and operates several online dating web sites
including okcupid, plentyoffish, tinder, and hinge, as well as a
number of other brands. [BN]
The Plaintiff is represented by:
Richard A. Klass, Esq.
16 Court Street, 28th Floor
Brooklyn, NY 11241
Telephone: (718) 643-6063
E-mail: RichKlass@courtstreetlaw.com
-and-
Marcus W. Corwin, Esq.
Stephen L. Conteaguero, Esq.
CORWIN LAW
MARCUS W. CORWIN, P.A.
6001 Broken Sound Parkway NW Suite 404
Boca Raton, FL 33487
Telephone: (561) 482-3636
Facsimile: (561) 482-5414
E-mail: mcorwin@corwinlawfirm.com
sconteaguero@corwinlawfirm.com
MDL 2972: Blackbaud's Bid to Dismiss Data Breach Suit Denied
------------------------------------------------------------
The U.S. District Court for the District of South Carolina,
Columbia Division, denies Blackbaud's motion to dismiss in the
matter captioned as IN RE: BLACKBAUD, INC., CUSTOMER DATA BREACH
LITIGATION, Case No. 3:20-mn-02972-JMC, MDL No. 2972 (D.S.C.).
As of July 1, 2021, this multidistrict litigation is comprised of
twenty-eight (28) class actions. An additional case is pending
conditional transfer to this MDL.
The matter is before the Court on Defendant Blackbaud's Motion to
Dismiss for Lack of Subject Matter Jurisdiction pursuant to Federal
Rule of Civil Procedure 12(b)(1). Blackbaud contends that the Court
lacks subject matter jurisdiction over the Plaintiffs' claims,
specifically asserting that the Plaintiffs do not have Article III
standing because they failed to sufficiently allege that their
injuries are traceable to Blackbaud's conduct.
Blackbaud is a publicly traded cloud software company incorporated
in Delaware and headquartered in Charleston, South Carolina. The
Company provides data collection and maintenance solutions for
administration, fundraising, marketing, and analytics to social
good entities such as non-profit organizations, foundations,
educational institutions, faith communities, and healthcare
organizations. As a result of this business model, Blackbaud
collects and stores Personally Identifiable Information ("PII") and
Protected Health Information ("PHI") from its customers' donors,
patients, students, and congregants.
In this action, the Plaintiffs represent a putative class of
individuals whose data was provided to Blackbaud's customers and
managed by Blackbaud. Thus, the Plaintiffs are patrons of
Blackbaud's customers rather than direct customers of Blackbaud.
The Plaintiffs allege that Blackbaud collected, stored, and
maintained several categories of their data, including name,
address, phone number, email address, date of birth, social
security number (ssn), credit card information and other private
information.
The Plaintiffs assert that from Feb. 7, 2020, to May 20, 2020,
cybercriminals orchestrated a two-part ransomware attack on
Blackbaud's systems ("Ransomware Attack"). Cybercriminals first
infiltrated Blackbaud's computer networks, copied the Plaintiffs'
data, and held it for ransom. They then attempted but failed to
block Blackbaud from accessing its own systems upon being
discovered in May 2020. Blackbaud ultimately paid the ransom in an
undisclosed amount of Bitcoin in exchange for a commitment that any
data previously accessed by the cybercriminals was permanently
destroyed.
The Ransomware Attack resulted from Blackbaud's deficient security
program, the Plaintiffs maintain. They assert that Blackbaud failed
to comply with industry and regulatory standards by neglecting to
implement security measures to mitigate the risk of unauthorized
access, utilizing outdated servers, storing obsolete data, and
maintaining unencrypted data fields.
The Plaintiffs contend, among other things, that Blackbaud failed
to provide them with timely and adequate notice of the Ransomware
Attack and the extent of the resulting data breach. The Plaintiffs
maintain that although Blackbaud initially represented that
sensitive information such as SSNs and bank account numbers were
not compromised in the Ransomware Attack, Blackbaud informed
certain customers in September and October 2020 that SSNs and other
sensitive data were in fact stolen in the breach. Additionally, the
Form 8-K Blackbaud filed with the Securities and Exchange
Commission on Sept. 29, 2020, states that SSNs, bank account
information, usernames, and passwords may have been exfiltrated
during the Ransomware Attack.
After the Ransomware Attack was made public, putative class actions
arising out of the intrusion into Blackbaud's systems and
subsequent data breach were filed in state and federal courts
across the country. On Dec. 15, 2020, the Judicial Panel on
Multidistrict Litigation consolidated all federal litigation
related to the Ransomware Attack into this multidistrict litigation
("MDL") for coordinated pretrial proceedings.
On April 2, 2021, 34 named Plaintiffs from 20 states filed a
Consolidated Class Action Complaint ("CCAC") alleging that their
PII and/or PHI was compromised during the Ransomware Attack. They
assert six claims on behalf of a putative nationwide class, as well
as 91 statutory claims on behalf of putative state subclasses.
Eighteen named Plaintiffs allege that they received data breach
notices informing them that their PHI may have been compromised
while six named Plaintiffs assert that they received data breach
notices informing them that their SSNs may have been exposed.
However, the Plaintiffs claim that it is unclear how much of their
personal information was actually compromised during the Ransomware
Attack due to Blackbaud's previous inaccurate representations about
the scope of the data breach.
Blackbaud filed the instant Motion to Dismiss for lack of subject
matter jurisdiction pursuant to Rule 12(b)(1) on May 3, 2021. As
Blackbaud makes both facial and factual challenges to the
Plaintiffs' standing, the Company filed two exhibits with its
Motion. The first exhibit, the "Kroll Summary," summarizes an
investigation by an external cybersecurity firm into whether named
Plaintiffs' PII and/or PHI was publicly exposed as a result of the
Ransomware Attack. The second exhibit, the "Stio Declaration," is
comprised of the Plaintiffs' Fact Sheets. On June 2, 2021, the
Plaintiffs filed a Response, as well as an exhibit, the "Worley
Declaration," evaluating the Kroll Summary's findings and
methodology. The Court held a hearing on the Motion on June 9,
2021.
On June 28, 2021, Blackbaud filed a Notice of Supplemental
Authority, informing the Court of the Supreme Court's decision in
TransUnion LLC v. Ramirez, No. 20-297, 2021 WL 2599472 (U.S. June
25, 2021). The Plaintiffs filed a Response on July 1, 2021.
Blackbaud argues that the Plaintiffs lack Article III standing and,
therefore, the Court lacks subject matter jurisdiction over their
claims. At this stage, Blackbaud does not dispute that the
Plaintiffs suffered injuries in fact that could be redressed by a
favorable decision. It only claims that the Plaintiffs have neither
facially nor factually established that their injuries are
traceable to Blackbaud's conduct.
Together, Plaintiffs assert that they suffered six (6) types of
injury as a result of the Ransomware Attack: identity theft or
fraud, increased risk of identity theft in the future, time and/or
money spent to mitigate risk of harm, emotional distress,
diminished value of data, and invasion of privacy.
District Judge J. Michalle Childs notes that although Blackbaud
challenged whether the Plaintiffs' allegations of harm constitute
injury in fact in its Motion, it abandoned that challenge at the
hearing. Blackbaud did not retract its abandonment of the challenge
to the injury in fact requirement of Article III standing when it
notified the Court of the Supreme Court's decision in Ramirez after
the hearing. Accordingly, Blackbaud only asserts that the
Plaintiffs have failed to satisfy the traceability requirement of
Article III standing.
As Blackbaud's factual challenge to the traceability requirement of
Article III standing involves facts that are intertwined with the
merits of the Plaintiffs' claims, the Court says it will not
consider Blackbaud's factual attack at this juncture.
As the CCAC contains sufficient factual matter to render the
Plaintiffs' allegations plausible on their face with respect to
traceability, Judge Childs holds that the Plaintiffs have
sufficiently established the traceability requirement of Article
III standing at this stage of the litigation. Accordingly, the
Court denies Blackbaud's Motion.
Even if Blackbaud ultimately shows after discovery that the
Plaintiffs' alleged injuries were not caused by the Ransomware
Attack, Judge Childs points out that it is premature to dismiss the
Plaintiffs' claims on grounds of traceability at this stage.
For these reasons, the Court denies Defendant Blackbaud, Inc.'s
Motion to Dismiss for Lack of Subject Matter Jurisdiction.
A full-text copy of the Court's Order and Opinion dated July 1,
2021, is available at https://tinyurl.com/5bfbk4j5 from
Leagle.com.
MDL 3014: Startner Seeks Consolidation of Actions in E.D. Pa.
-------------------------------------------------------------
In re: Philips Recalled CPAP, Bi-Level PAP, and Ventilator
Litigation, MDL No. 3014, the Movant-Plaintiff Thomas R. Starner
moves the Judicial Panel on Multidistrict Litigation (Panel) to
transfer and centralize the actions, and subsequent tag-along
actions, to the Honorable Timothy J. Savage, United States District
Court Judge for the Eastern District of Pennsylvania, who currently
presides over the action brought by Starner, for coordinated or
consolidated pretrial proceedings.
The Actions and any additional tag-along actions, pending against
the Defendants will involve similar if not identical questions of
fact, and will involve common discovery and pretrial motion
practice, and will have numerous overlapping class claims.
Accordingly, there is the potential for inconsistent pretrial
rulings if the cases are not transferred for coordinated or
consolidated proceedings pursuant to 28 U.S.C. section 1407.
The Defendants have admitted that lab analysis of the degraded foam
in these devices reveals the presence of harmful chemicals,
including: Toluene Diamine, Toluene Diisocyanate, and Diethylene
Glycol, and "based on lab testing and evaluations, it may be
possible that these potential health risks could result in a wide
range of potential patient impact, from transient potential
injuries, symptoms and complications, as well as possibly serious
injury which can be life-threatening or cause permanent impairment,
or require medical intervention to preclude permanent impairment."
The Movant purchased and used two of the recalled devices, a
Philips Respironics Remstar Pro CPAP device and a Philips
DreamStation Auto CPAP device, prior to June 14, 2021, to treat
sleep apnea.[BN]
Movant-Plaintiff Thomas R. Starner is represented by:
Sandra L. Duggan, Esq.
Arnold Levin, Esq.
Laurence S. Berman, Esq.
Frederick S. Longer, Esq.
LEVIN SEDRAN & BERMAN LLP
510 Walnut Street, Suite 500
Philadelphia, PA 19106-3697
Telephone: (215) 592-1500
Facsimile: (215) 592-4663
E-mail: sduggan@lfsblaw.com
alevin@lfblaw.com
lberman@lfsblaw.com
flonger@lfsblaw.com
MICRON TECHNOLOGY: Court Tosses DRAM Conspiracy Class Action
------------------------------------------------------------
Osler disclosed that on June 28, 2021, in the case of Hazan v.
Micron Technology Inc. the Québec Superior Court dismissed an
application for authorization to institute a class action alleging
a conspiracy to restrict the production and fix the prices of
dynamic random-access memory (DRAM), a flash memory component
installed in many electronic devices such as cellphones, tablets,
televisions, and computers.
In a well-reasoned decision, the Court concluded that the criteria
for the authorization of the class action were not met due to
vague, imprecise, and general allegations, and the absence of "some
evidence" establishing, even summarily, the existence of such
conspiracy. Thus, the Court dismissed the application on the basis
that it did not present an arguable case and failed to meet the
appearance of right test.
Context
According to the plaintiff, defendants, who allegedly control 96%
of the DRAM market, would have conspired between 2016 and 2018 to
limit the DRAM production, thereby unduly increasing the prices.
The conspiracy would have stopped following an inquiry of a Chinese
commission triggered by a sudden rise in DRAM prices. The plaintiff
sought to represent a group of customers regarding their alleged
damage due to having overpaid for DRAM. or for devices containing
such component.
The claim advanced by the plaintiffs was based on the following
legal grounds: damages under the civil liability regime (Civil Code
of Québec); damages under the Competition Act; damages for
misrepresentation under Québec's Consumer Protection Act (the
CPA); and punitive damages under the CPA.
Reasons and conclusion
At the outset, the Court revisited the legal principles applicable
to an application for authorization to bring a class action. In
particular, the Court noted that the authorization stage of a class
action is a filtering process aimed at establishing whether the
application presents an arguable case, adding that the criteria
provided at article 575 C.C.P. must be interpreted in a flexible,
liberal, and generous fashion, and that the plaintiff's burden is
one of demonstration and not of proof.
That being said, the Court further added that. when alleging facts
of conspiracy, class action applicants must substantiate their
allegations by presenting "some evidence"[1] of a conspiracy to
establish an arguable case. As outlined by the Court, such evidence
might be found in press releases, self-declarations, criminal or
penal indictments, plea bargains, public inquiries, or any other
similar evidence.
In the case at hand, the Court determined that the authorization
application did not provide sufficient factual elements to
establish a case for conspiracy against the defendants. The Court's
conclusions may be summarized as follows:
Vague allegations pertaining to a price-fixing conspiracy and the
mere fact that the DRAM industry is an oligopoly, which is not in
itself anticompetitive, are not sufficient for the class action to
be authorized in this case.
References to U.S. proceedings alleging the same conspiracy are not
appropriate evidence since those proceedings are drafted by lawyers
and simply constitute opinions or legal argumentation.
The plaintiff's application alleged some declarations that would
have been made by the defendants, but did not file any evidence of
those declarations. The sole reference to such declarations without
any evidence is insufficient to establish an arguable case.
The inquiry conducted by the Chinese authorities did not reveal any
evidence of conspiracy, did not result in a report, nor provided
any conclusion, decision or sanction against the defendants.
Therefore, the Court ruled that the plaintiff did not establish any
fault, proof of a conspiracy, or any agreement between the
defendants to restrict DRAM production or otherwise fix its price,
whether under the Civil Code of Québec, the Competition Act or the
CPA.
Having concluded that the second criterion of article 575 C.C.P.
was not met due to the absence of an appearance of right, the Court
also found that the plaintiff did not have the required interest to
properly represent the class members[2]. The Court therefore
dismissed the application for authorization of a class action
against the defendants.
Comment
This decision will certainly be welcomed by those who are often
accused of vague, broad, and unsubstantiated claims of conspiracy
and price fixing. The Court's decision in the Hazan case is a
reminder that, although the threshold for the authorization of a
class action is relatively low, this procedure is not
rubberstamping, and Courts will act upon their gatekeeper role to
ensure that only arguable and defensible cases be heard on their
merits.
[1] See par. 41, 55 and 60.
[2] The first and third criterion of article 575 C.C.P. were not
contested by the defendants. but were nevertheless analyzed by the
Court, which concluded that they were met in this case. [GN]
NEUTROGENA CORP: Deceived Sunscreen Product Consumers, Lavalle Says
-------------------------------------------------------------------
Steven Lavalle, individually on behalf of himself and all others
similarly situated v. Neutrogena Corporation and Johnson & Johnson
Consumer Companies, Inc., Case 7:21-cv-06091 (S.D.N.Y., July 15,
2021) is an action seeking to remedy the deceptive and misleading
business practices of Defendants with respect to the marketing and
sale of various sunscreen products throughout the state of New York
and throughout the country, including, but not limited to, the
following products: Neutrogena Beach Defense Oil-Free Body
Sunscreen Spray - SPF 30; Neutrogena Beach Defense Oil-Free Body
Sunscreen Spray - SPF 50; Neutrogena Beach Defense Oil-Free Body
Sunscreen Spray - SPF 70; Neutrogena Beach Defense Oil-Free Body
Sunscreen Spray - SPF 100; Neutrogena Beach Defense Water + Sun
Protect - SPF 30; Neutrogena Sheer Zinc Dry-Touch Face Sunscreen
Lotion - SPF 50; Aveeno Protect + Refresh Sunscreen - SPF 60; and
Aveeno Baby Continuous Protection Sensitive Sunscreen Lotion, Broad
Spectrum - SPF 50.
The complaint alleges that Defendants specifically list both the
active and inactive ingredients of these Products but fail to
disclose that the product contains "benzene." Benzene is a widely
recognized and incredibly dangerous substance, especially in the
context of applying it to the skin. Benzene has been recognized,
acknowledged, and accepted as a well-known health hazard and human
carcinogen for approximately a century. Given that Plaintiff and
Class Members paid a premium for the Products based on Defendants'
misrepresentations that they are healthy and did not contain a
dangerous substance like benzene, Plaintiff and Class Members
suffered an injury in the amount of the premium paid, the complaint
adds.
Plaintiff purchased Defendants' Products that contained benzene,
including, but not limited to, the Cool Dry Sport Aerosol
Sunscreen, which was part of a nationwide recall by Defendants for
containing benzene.
Defendant Neutrogena Corp. is a subsidiary of the Johnson & Johnson
Consumer Companies, Inc. conglomerate, and is one of the world's
leading brands of skin care, hair care, and cosmetics.[BN]
The Plaintiff is represented by:
Jason P. Sultzer, Esq.
Joseph Lipari, Esq.
Daniel Markowitz, Esq.
THE SULTZER LAW GROUP P.C.
270 Madison Avenue, Suite 1800
New York, NY 10016
Tel: (845) 483-7100
Fax: (888) 749-7747
E-mail: sultzerj@thesultzerlawgroup.com
liparij@thesultzerlawgroup.com
markowitzd@thesultzerlawgroup.com
- and -
David C. Magagna Jr., Esq.
Charles E. Schaffer, Esq.
LEVIN SEDRAN & BERMAN
510 Walnut Street, Suite 500
Philadelphia, PA 19106
Tel: 215-592-1500
E-mail: dmagagna@lfsblaw.com
cschaffer@lfsblaw.com
NEW ENERGY: Robles Rael to Be Awarded Fee Under Settlement
----------------------------------------------------------
Lindsay Fendt and Annabella Farmer, writing for Searchlight New
Mexico, report that Attorney General Hector Balderas' cozy
relationship with a local law firm is under scrutiny amid
allegations that Albuquerque-based attorney Marcus Rael Jr. used
his influence with the attorney general to convince Balderas to
sign off on a multi-billion-dollar utility merger. The merger
between a global energy giant and New Mexico's largest utility
could drastically change electricity distribution in the state,
with hundreds of millions of dollars for New Mexico utility
customers hanging in the balance.
For eight months, the state has been involved in negotiations over
a proposed merger between Connecticut-based Avangrid and Public
Service Company of New Mexico (PNM), the state's largest utility.
Rael, who frequently represents the state, was hired to represent
Avangrid's parent company in the negotiations.
Five civic and environmental justice groups have filed a complaint
with the State Ethics Commission, the State Auditor and the
disciplinary board of the New Mexico Supreme Court, alleging that
Rael used his influence to push the attorney general into signing
on early to the merger deal. The move saved the companies money
that would otherwise have gone into New Mexicans' pockets via
credits on their electricity bills and economic development
funding. Balderas, who has participated in negotiations on behalf
of consumers, initially critiqued the deal before changing course,
after meetings with Rael.
"Balderas agrees that the [merger deal] is magically in the public
interest, despite his own experts' testimony detailing why the
merger is bad for New Mexicans because it doesn't adequately
protect their rights," said Mariel Nanasi, the executive director
of New Energy Economy, one of the complainants. The groups are
calling for an investigation.
The story behind the complaint is a complicated one involving a
sprawling merger and questions about whether it would serve New
Mexicans or was instead commandeered to profit utility companies.
Close Ties
While the name Marcus Rael Jr. is likely unknown to most
New Mexicans, the attorney and lawyers at his law firm -- Robles,
Rael & Anaya -- have likely been involved in a legal case that
affects their daily lives.
Since taking office in 2015, Balderas has hired Rael or others at
his firm to help represent the state in at least 19 cases, which is
at least triple the number of cases farmed out to any other private
law firm, a review by Searchlight New Mexico showed. Balderas and
Rael both graduated from the University of New Mexico law school in
2001 and briefly worked together before Balderas ran for public
office.
19
19 cases is the number of cases the attorney general has sent to
Robels, Rael & Anaya, at least three times as many as any other
private law firm
Rael's legal appointments have involved him in cases with broad
implications for the state, including Texas vs. New Mexico, a
Supreme Court case concerning groundwater rights that could cost
New Mexico $1 billion in damages and reduce the state's future
water supply. Lawyers at Rael's firm are also involved in the
landmark Yazzie-Martinez case, which is focused on widespread
inequities in education funding.
In 2018, then-state auditor Wayne Johnson opened an investigation
into the relationship between Balderas and Rael and the bidding
process for outside firms, following an anonymous tip about the
overwhelming amount of work that the attorney general's office was
sending to Robles, Rael & Anaya. The results of the investigation
were never made public.
Now, the five groups -- New Energy Economy, Democracy Rising,
Indivisible Nob Hill, Renewable Taos and Retake Our Democracy --
argue that Balderas awarded Rael's law firm lucrative contracts
without considering the lawyers' experience or expertise for the
case -- a violation of state ethics law. They say that Balderas'
close relationship with Rael presented a conflict of interest in
the merger case.
Balderas declined repeated requests for an interview with
Searchlight regarding the merger. In a written statement to
Searchlight, Matt Baca, a spokesman for the attorney general's
office, said the claims about favoritism or a conflict of interest
are entirely false. "New Energy Economy has reached a new low in
attacking another party in this case with such a baseless
complaint," the statement said.
"With respect to his relationship to Mr. Rael, the Attorney General
has friendships with many of the attorneys in the case and at the
PRC," Baca said in a separate statement.
Rael said in an email that he had not seen the complaint, but that
his firm specializes in representing local and state governments.
"All the firm's public contracts, including those with the Office
of the Attorney General, were awarded in accordance with the
stringent requirements of the State Procurement Code and the
Governmental Conduct Act. It also goes without saying that the
attorneys of my firm strictly adhere to the New Mexico Rules of
Professional Conduct," the statement said.
Avangrid is the U.S. subsidiary of the Spanish energy giant
Iberdrola, and if the merger goes forward -- which could happen as
early as this fall -- the state's electricity infrastructure would
become a part of Iberdrola's massive global energy portfolio. The
company would likely export large amounts of New Mexico-generated
electricity to other states.
For PNM and Avangrid, billions of dollars are at stake.
An Uneven Deal
Iberdrola hired Rael in February, prior to a hearing with the
Public Regulation Commission. Over the past eight months parties
involved in the hearing have filed thousands of pages of documents
for review in the case and presented arguments before the hearing
examiner. This administrative process with the PRC is expected to
end in a series of public hearings in August, after which the five
elected PRC board members will ultimately decide whether or not to
allow the merger to go forward. The attorney general participates
in this process by providing testimony to determine whether or not
the merger is in the public interest.
Hearing documents show that Rael held 18 meetings at the Attorney
General's office between his hiring and April 5. For his services,
Iberdrola paid him $400 an hour, almost double his regular rate
with the attorney general's office.
$400 Per Hour
Which is more than double Rael's normal rate with the attorney
general's office.
At the time Rael was hired, the attorney general's office was
pushing for changes to the merger deal that would better serve the
public, such as money for infrastructure projects and credits on
utility bills.
On April 2, Balderas told the Albuquerque Journal that he had
concerns about the merger's lack of benefits for utility customers
and worried about utility profits leaving the state. Experts for
the state recommended massive changes, including doubling
customers' credits, making a 30-fold increase to the economic
development funds paid to New Mexican communities, and placing the
cost for dumping the Four Corners Coal Plant on shareholders,
rather than customers.
Days after those recommendations were filed with the PRC, Rael paid
one last visit to Balderas' office. Hearing documents do not reveal
what they discussed, but a few weeks later, Balderas signed onto a
tentative merger deal that fell dramatically short of what expert
witnesses had suggested — a pivot from his earlier critiques.
The complaint alleges that this about-face is evidence that Rael
pushed Balderas into the deal on behalf of his client, Iberdrola.
"We were satisfied that the [new agreement] improved significantly
from the opening application, including increased economic
development, rate credits, a full commitment to transition to clean
energy, and investing in tribal communities and frontline workers,"
Balderas wrote in an emailed statement to Searchlight.
The revised agreement includes some additional benefits for the
state, customers, tribal communities and union workers — but it
saves PNM and Avangrid-Iberdrola $395 million that would have gone
to customers and communities if the experts' suggestions had been
adopted in full.
A Long Relationship
Documents obtained by Searchlight show that Rael and Balderas' ties
to each other have continued, at least financially, since they left
law school.
More Than $3 Million
Direct payments from the attorney general's office to Robles, Rael,
& Anaya.
Lawyers and other employees at Robles, Rael & Anaya have donated
more than $36,000 to Balderas since his first run for public office
in 2005 -- more contributions than from almost any other entity.
Balderas, in turn, has retained the law firm to represent the state
in lucrative cases and paid out millions in fees and expenses to
the firm.
Invoices and contracts from the attorney general's office obtained
by New Energy Economy and shared with Searchlight show more than $3
million in direct payments of fees and expenses to Robles, Rael &
Anaya. Searchlight's investigation found many other cases with Rael
listed as co-counsel, which include everything from consumer fraud
cases to a major lawsuit against opioid manufacturers.
Of those cases, 11 were class-action suits where Robles, Rael &
Anaya would be awarded a fee based on the percentage of the case
settlement -- likely amounting to millions of dollars based on the
settlement amounts. [GN]
NEW YORK, NY: Murray Seeks Case Discovery Analysts' Unpaid Overtime
-------------------------------------------------------------------
ELMORE MURRAY, on behalf of herself and others similarly situated,
v. CITY OF NEW YORK, Case No. 1:21-cv-05835 (S.D.N.Y., July 7,
2021), is a collective action brought to remedy unpaid overtime
wages in willful violation of the Fair Labor Standards Act of
1938.
The Plaintiff seeks declaratory and injunctive relief; an award of
monetary damages for the economic losses caused by the Defendant's
unlawful conduct, including the unpaid overtime wages; an award of
liquidated damages under the FLSA; reasonable attorney's fees;
costs of this action; and any such other and further relief this
courts deems just and equitable.
The Defendant has employed twenty or more employees, including the
Plaintiff, in the position of Case Discovery Analyst, who worked in
excess of 40 hours per work week; yet were denied overtime wages
during the applicable time period.
The Defendant allegedly engaged in the unlawful employment practice
of failing or refusing to pay overtime wages to Case Discovery
Analysts who worked overtime hours from April 2020 through April
15, 2021.
Ms. Murray is a citizen of the State of New York. The Plaintiff was
an "employee" of Defendant within the applicable federal statutes
and regulations.
The City is a municipal corporation organized and existing pursuant
to the laws of the State of New York.[BN]
The Plaintiff is represented by:
Justin S. Clark, Esq.
LEVINE & BLIT, PLLC
350 Fifth Avenue, Suite 4020
New York, NY 10118
Telephone: (212) 967-3000
NEWFOUNDLAND AND LABRADOR: Averts COVID-19 Class Action Cert.
-------------------------------------------------------------
Michael Rosenberg, Esq., and Leah Strand, Esq., of McCarthy
Tetrault LLP, in an article for Lexology, report that in Koehler v.
Newfoundland and Labrador, 2021 NLSC 95, the Supreme Court of
Newfoundland and Labrador refused to certify a proposed class
action seeking damages for the provincial government's COVID-19
travel restrictions.[1] Justice Boone determined the class action
did not meet the requirements for certification under the Class
Actions Act.[2]
Koehler provides important guidance on the certification of claims
for Charter damages, particularly in the rapidly developing area of
mobility rights. On that score, the decision extends the Court of
Appeal for Ontario's recent line of jurisprudence articulating the
level of fault that will justify Charter damages.[3] Even where
fault is alleged, a class proceeding will not be certified on bald
pleadings that the government knew it was violating the Charter.
More is required, and it was lacking here.
The authors served as co-counsel for the defendant, together with
Don Anthony, Q.C. of the Newfoundland and Labrador Department of
Justice.
The impugned travel restrictions
After the provincial government declared COVID-19 a public health
emergency in March 2020, the Chief Medical Officer of Health made
special orders prohibiting travel to Newfoundland and Labrador. The
orders included a list of exemptions. Individuals who did not fit
within a defined exemption could apply for one.
By the time that certification was argued in Koehler, the court had
already considered a different challenge to the same travel
restrictions in Taylor v. Newfoundland and Labrador, 2020 NLSC
125.[4] In Taylor the court held: (a) the statute authorizing the
travel restrictions fell within provincial jurisdiction;[5] (b) the
travel restrictions violated the Plaintiff's right to mobility
guaranteed by s. 6(1); and (c) the violation was justified under s.
1 of the Charter.
The proposed class action
The Koehlers are Ontario residents who own property and operate a
seasonal business in Newfoundland. They planned to travel to the
province in the spring of 2020 but cancelled those plans upon
hearing about the travel ban. In July, they applied for an
exemption, which was granted the following day. Thereafter, they
traveled to Newfoundland and operated their business.
The plaintiffs claimed that the government's travel restrictions
were negligent and amounted to a nuisance. They also claimed that
the travel restrictions violated their Charter rights to peaceful
assembly (s. 2(c)), mobility (s. 6), liberty and security of the
person (s. 7), and equality (s. 15). The plaintiffs claimed damages
at common law and under s. 24(1) of the Charter.
The plaintiffs sought to certify a class proceeding for residents
of other provinces who owned property in Newfoundland and Labrador
and wanted to enter the province, but were barred by the travel
restrictions. At the hearing of the certification application, the
plaintiffs abandoned their claims for negligence and a breach of s.
7 of the Charter.
The certification decision
Justice Boone found that the Koehlers had failed to satisfy any of
the five criteria for certification:
The pleadings did not disclose a viable cause of action:
Freedom of assembly: The plaintiffs did not claim their freedom was
affected by restrictions on gatherings, but merely that they were
prevented from coming to the province. Peaceful assembly protects
people, not a particular venue.
Equality rights: Since a person's residence is clearly subject to
change, place of residency is not an analogous protected ground
under s. 15.
Charter damages: Though it was not "plain and obvious" that the
plaintiffs' mobility rights claim would fail, the claim for Charter
damages had no reasonable prospect of success. It was not enough to
baldly allege that the government knew or should have known that
its actions were unconstitutional, particularly since the travel
restrictions had been upheld in Taylor.
Nuisance: This tort requires an interference with the use of land
that affects the land itself or a related amenity. The travel
restrictions were directed at people, not land.
There was no identifiable class of two or more persons. The
plaintiffs had considerable difficulty defining an objective class
that did not depend on subjective intentions to enter the province.
When they focused instead on those who were actually denied entry,
they were met with the objection that they were no longer members
of their own class and there was no evidence of two or more persons
who might fit the class definition.
The claims did not raise any common issues. To the extent that any
of the plaintiffs' claim disclosed a reasonable cause of action,
the claim would be wholly determined by the circumstances of the
claimant, and it would be unsuitable for resolution in a class
proceeding. Further, there was no basis in fact to support the
fault required for Charter damages.
A class action was not the preferable procedure to resolve the
issues. Newfoundland and Labrador requires non-residents to opt
into class proceedings. Although the court accepted that the
Koehlers could be appointed as representative plaintiffs, the
proposed class was entirely composed of non-residents who would
have to opt-in. Therefore, a class proceeding offered no material
advantage over a joinder action.
The Koehlers were not suitable representative plaintiffs. Because
it was conceded that the plaintiffs were never prevented from
entering Newfoundland, they could not actually assert the claims
that they had pleaded.
Therefore, the court refused to certify a class proceeding.
Next steps
The defendant had brought an application for summary trial to
dismiss the Koehlers' underlying action, which was to be heard in
tandem with the plaintiffs' application for certification. For
procedural reasons, the hearing of the application for summary
trial was adjourned to September 2021. Given that the plaintiffs'
claims were effectively struck for failure to disclose a reasonable
cause of action, it remains to be seen whether they will continue
to resist the application for summary trial or consent to the
dismissal of their action. [GN]
NIELSEN HOLDINGS: MissPERS, et al. Seek to Certify Class Action
---------------------------------------------------------------
In the class action lawsuit RE NIELSEN HOLDINGS PLC SECURITIES
LITIGATION, Case No. 1:18-cv-07143-JMF (S.D.N.Y.), the Lead
Plaintiff Public Employees' Retirement System of Mississippi
(MissPERS) and additionally Plaintiff Monroe County Employees'
Retirement System ask the Court to enter an order pursuant to
Federal Rules of Civil Procedure 23(a), 23(b)(3), and 23(g):
1. certifying this case as a class action;
2. appointing the Plaintiffs as Class Representatives; and
3. appointing Labaton Sucharow LLP as Class Counsel.
A copy of the Plaintiffs' motion dated July 15, 2021 is available
from PacerMonitor.com at https://bit.ly/3rxOTRs at no extra
charge.[CC]
The Attorneys for Lead Plaintiff Public Employees' Retirement
System of Mississippi and Lead Counsel for the Proposed Class,
are:
Christine M. Fox, Esq.
Carol C. Villegas, Esq.
Eric J. Belfi, Esq.
Jake Bissell-Linsk, Esq.
Charles Farrell, Esq.
LABATON SUCHAROW LLP
140 Broadway
New York, NY 10005
Telephone: (212) 907-0700
Facsimile: (212) 818-0477
E-mail: cvillegas@labaton.com
ebelfi@labaton.com
cfox@labaton.com
jbissell-linsk@labaton.com
cfarrell@labaton.com
The Counsel for Additionally Named Plaintiff Monroe County
Employees' Retirement System, and Additional Counsel for the
Proposed Class, are:
Shawn A. Williams, Esq.
Christopher P. Seefer, Esq.
ROBBINS GELLER RUDMAN
& DOWD LLP
Post Montgomery Center
One Montgomery Street, Suite 1800
San Francisco, CA 94104
Telephone: (415) 288-4545
Facsimile: (415) 288-4534
E-mail: shawnw@rgrdlaw.com
chriss@rgrdlaw.com
- and -
Patton L. Johnson, Esq.
655 West Broadway, Suite 1900
San Diego, CA 92101
Telephone: (619) 231-1058
Facsimile: (619) 231-7423
E-mail: pjohnson@rgrdlaw.com
NK HOLDINGS: Faces Seavey Employment Suit in California State Ct.
-----------------------------------------------------------------
A class action lawsuit has been filed against NK Holdings LLC, et
al. The case is captioned as Alison Seavey vs. NK Holdings LLC,
Case No. 34-2021-00303682-CU-OE-GDS (Calif. Super., Sacramento
Cty., July 6, 2021).
The case arises from employment-related issues.
Nk Holdings is headquartered in Northern Ireland. The Company's
line of business includes holding or owning securities of
companies.
The Defendants include Does 1 through 10.[BN]
The Plaintiff, on behalf of all others similarly situated, is
represented by:
Brett Michael Gunther, Esq.
MOON & YANG, APC
1055 W 7th St Ste 1880
Los Angeles, CA 90017-2529
Telephone: (213) 232-3128
NOARUS INVESTMENTS: Lerner Files TCPA Suit in C.D. California
-------------------------------------------------------------
A class action lawsuit has been filed against Noarus Investments,
Inc., et al. The case is styled as Angela Lerner, individually and
on behalf of all others similarly situated v. Noarus Investments,
Inc. doing business as: Marina Del Rey Toyota, DOES 1 through 10
inclusive, Case No. 2:21-cv-05907 (C.D. Cal., July 21, 2021).
The lawsuit is brought over alleged violation of the Telephone
Consumer Protection Act.
Marina del Rey Toyota in Los Angeles --
https://www.marinadelreytoyota.com/ -- offers new Toyota models, a
variety of used cars, top notch service, and genuine Toyota
parts.[BN]
The Plaintiff appears pro se.
OANDA CORP: Kalemba Appeals Class Certification Bid Denial
----------------------------------------------------------
Plaintiff Mukengeshayi Kalemba filed an appeal from a court ruling
entered in the lawsuit styled MUKENGESHAYI KALEMBA, individually
and on behalf of all others similarly situated, Plaintiff v. OANDA
CORPORATION, Defendant, Case No. 656647/2017, in the Supreme Court
of the State of New York, County of New York.
According to the complaint, the Plaintiff alleges that OANDA, an
online foreign exchange currency platform, breached its contractual
promise to adequately disclose on its website the interest or
financing rates used to assess charges on its customers'
transactions. The Plaintiff does not allege that the charges were
inflated or manipulated, only that OANDA did not disclose those
charges in the manner required by its customer agreements. Nor does
Plaintiff seek injunctive relief to require greater transparency.
Instead, Plaintiff seeks to recover monetary damages, on behalf of
all OANDA customers, caused by OANDA's alleged breach of its
disclosure obligation.
The Plaintiff now seeks a review of the Court's Decision and Order
dated March 3, 2021 and entered March 4, 2021, denying his motion
for class certification.
The appellate case is captioned as MUKENGESHAYI KALEMBA,
individually and on behalf of all others similarly situated v.
OANDA CORPORATION, Case No. 2021-02312, in the Supreme Court of the
State of New York, Appellate Division, First Judicial Department,
filed on June 28, 2021.[BN]
Plaintiff-Appellant MUKENGESHAYI KALEMBA, individually and on
behalf of all others similarly situated, is represented by:
Samuel E. Bonderoff, Esq.
ZAMANSKY LLC
50 Broadway, 32nd Floor
New York, NY 10004
Telephone: (212) 742-1414
Defendant-Appellee OANDA CORPORATION is represented by:
Tenley Mochizuki, Esq.
Katten Muchin, Esq.
ROSENMAN LLP
575 Madison Avenue
New York, NY 10022
Telephone: (212) 940-8800
E-mail: tenley.mochizuki@kattenlaw.com
- and -
David J. Stagman, Esq.
KATTEN MUCHIN ROSENMAN LLP
525 West Monroe St.
Chicago, IL 60661
Telephone: (312) 902-5200
E-mail: david.stagman@kattenlaw.com
OCUGEN INC: Klein Law Firm Reminds of August 17 Deadline
--------------------------------------------------------
The Klein Law Firm on July 18 disclosed that class action
complaints have been filed on behalf of shareholders of the
following companies. There is no cost to participate in the suit.
If you suffered a loss, you have until the lead plaintiff deadline
to request that the court appoint you as lead plaintiff.
Ubiquiti Inc. (NYSE:UI)
Class Period: January 11, 2021 - March 20, 2021
Lead Plaintiff Deadline: July 19, 2021
The UI lawsuit alleges that throughout the class period, Ubiquiti
Inc. made materially false and/or misleading statements and/or
failed to disclose that: (1) the Company had downplayed the data
breach in January 2021; (2) attackers had obtained administrative
access to Ubiquiti's servers and obtained access to, among other
things, all databases, all user database credentials, and secrets
required to forge single sign-on (SSO) cookies; (3) as a result,
intruders already had credentials needed to remotely access
Ubiquiti's customers' systems; and (4) 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.
Learn about your recoverable losses in UI:
https://www.kleinstocklaw.com/pslra-1/ubiquiti-inc-loss-submission-form?id=17742&from=1
Ocugen, Inc. (NASDAQ:OCGN)
Class Period: February 2, 2021 - June 10, 2021
Lead Plaintiff Deadline: August 17, 2021
According to the complaint, Ocugen, Inc. allegedly made materially
false and/or misleading statements and/or failed to disclose that:
(i) the information submitted to the U.S. Food and Drug
Administration ("FDA") was insufficient to support an Emergency Use
Authorization ("EUA"), (ii) Ocugen would not file an EUA with the
FDA, (iii) as a result of the foregoing, the Company's financial
statements, as well as Defendants' statements about Ocugen's
business, operations, and prospects, were false and misleading
and/or lacked a reasonable basis.
Learn about your recoverable losses in OCGN:
https://www.kleinstocklaw.com/pslra-1/ocugen-inc-loss-submission-form?id=17742&from=1
Didi Global Inc. F/K/A Xiaoju Kuaizhi Inc. (NYSE:DIDI)
This lawsuit is on behalf of persons and entities that purchased or
otherwise acquired DiDi: (a) American Depositary Shares pursuant
and/or traceable to the registration statement and prospectus
issued in connection with the Company's June 2021 initial public
offering; and/or (b) securities between June 30, 2021 and July 2,
2021, inclusive.
Lead Plaintiff Deadline: September 7, 2021
The DIDI lawsuit alleges that throughout the class period, Didi
Global Inc. F/K/A Xiaoju Kuaizhi Inc. made materially false and/or
misleading statements and/or failed to disclose that: (1) DiDi's
apps did not comply with applicable laws and regulations governing
privacy protection and the collection of personal information; (2)
as a result, the Company was reasonably likely to incur scrutiny
from the Cyberspace Administration of China; (3) the CAC had
already warned DiDi to delay its IPO to conduct a self-examination
of its network security; (4) as a result of the foregoing, DiDi's
apps were reasonably likely to be taken down from app stores in
China, which would have an adverse effect on its financial results
and operations; and (5) 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.
Learn about your recoverable losses in DIDI:
https://www.kleinstocklaw.com/pslra-1/didi-global-inc-f-k-a-xiaoju-kuaizhi-inc-loss-submission-form?id=17742&from=1
Your ability to share in any recovery doesn't require that you
serve as a lead plaintiff. If you suffered a loss during the class
period and wish to obtain additional information, please contact J.
Klein, Esq. by telephone at 212-616-4899 or visit the webpages
provided.
J. Klein, Esq. represents investors and participates in securities
litigations involving financial fraud throughout the nation.
Attorney advertising. Prior results do not guarantee similar
outcomes.
CONTACT:
J. Klein, Esq.
Empire State Building
350 Fifth Avenue
59th Floor
New York, NY 10118
jk@kleinstocklaw.com
Telephone: (212) 616-4899
Fax: (347) 558-9665
www.kleinstocklaw.com [GN]
ORPHAZYME A/S: Pomerantz Law Firm Reminds of Sept. 7 Deadline
-------------------------------------------------------------
Pomerantz LLP on July 18 disclosed that a class action lawsuit has
been filed against Orphazyme A/S ("Orphazyme" or the "Company")
(NASDAQ: ORPH) and certain of its officers and directors. The class
action, filed in the United States District Court for the Northern
District of Illinois, Eastern Division, and docketed under
21-cv-03640, is on behalf of a class consisting of all persons and
entities other than Defendants that purchased or otherwise
acquired: (a) Orphazyme American depositary shares ("ADSs")
pursuant and/or traceable to the Offering Documents (defined below)
issued in connection with the Company's initial public offering
conducted on or about September 29, 2020 (the "IPO" or "Offering");
and/or (b) Orphazyme securities between September 29, 2020 and June
18, 2021, both dates inclusive (the "Class Period"). Plaintiff
pursues claims against the Defendants under the Securities Act of
1933 (the "Securities Act") and the Securities Exchange Act of 1934
(the "Exchange Act").
If you are a shareholder who purchased or otherwise acquired (a)
Orphazyme ADSs pursuant and/or traceable to the Offering Documents
issued in connection with the IPO, and/or (b) Orphazyme securities
during the Class Period, you have until September 7, 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.
Orphazyme is a biopharmaceutical company that develops therapies
for the treatment of neurodegenerative orphan diseases. The Company
conducts its U.S. operations through its wholly-owned subsidiary,
Orphazyme US, Inc., which is focused on U.S. regulatory review and
preparing for the Company's first potential U.S. commercial launch,
including legal, commercial, finance, advocacy relations,
regulatory, and medical affairs functions.
Orphazyme's lead drug candidate is arimoclomol, which is in
clinical development for four orphan diseases, including
Niemann-Pick disease type C ("NPC"), Amyotrophic Lateral Sclerosis
("ALS"), and Inclusion Body Myositis ("IBM"). In August 2017,
Orphazyme initiated a multicenter randomized 1:1, double-blinded,
placebo-controlled Phase 2/3 clinical trial for assessing efficacy
and safety of arimoclomol citrate 400 mg three times per day in
patients with IBM; in August 2018, Orphazyme initiated a 2:1
randomized, double-blinded, placebo-controlled Phase 3 clinical
trial assessing efficacy and safety of arimoclomol citrate 400 mg
three times per day in patients with ALS; and in September 2020,
the U.S. Food and Drug Administration ("FDA") accepted Orphazyme's
new drug application ("NDA") for arimoclomol for NPC.
On September 4, 2020, Orphazyme filed a registration statement on
Form F-1 with the U.S. Securities and Exchange Commission ("SEC")
in connection with the IPO, which, after several amendments, was
declared effective by the SEC on September 28, 2020 (the
"Registration Statement").
On September 29, 2020, pursuant to the Registration Statement,
Orphazyme's ADSs began trading on the Nasdaq Global Select Market
under the ticker symbol "ORPH." That same day, Orphazyme filed a
prospectus on Form 424B4 with the SEC in connection with the IPO,
which incorporated and formed part of the Registration Statement
(collectively, the "Offering Documents").
Pursuant to the Offering Documents, Orphazyme conducted the IPO,
issuing 3,966,146 of its ordinary shares to the U.S. public in the
form of 3,966,146 ADSs at the Offering price of $11.00 per ADS,
while concurrently offering 3,650,000 of its ordinary shares in
Europe in a private placement to qualified investors, for total
approximate proceeds of $77,913,174 to the Company before expenses
and after applicable underwriting commissions.
The complaint alleges that the Offering Documents were negligently
prepared and, as a result, contained untrue statements of material
fact or omitted to state other facts necessary to make the
statements made not misleading and were not prepared in accordance
with the rules and regulations governing their preparation.
Additionally, 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, the Offering Documents and Defendants made
false and/or misleading statements and/or failed to disclose that:
(i) arimoclomol was not as effective in treating IBM as Defendants
had represented; (ii) arimoclomol was not as effective in treating
ALS as Defendants had represented; (iii) the arimoclomol NDA for
NPC was incomplete and/or required additional evidence and data to
support the benefit-risk assessment of that NDA; (iv) as a result
of (iii), the FDA was unlikely to approve the arimoclomol NDA for
NPC in its present form; (v) the Company's overall business
prospects, as well as arimoclomol's commercial prospects, were
significantly overstated; and (vi) as a result, the Offering
Documents and Defendants' public statements throughout the Class
Period were materially false and/or misleading and failed to state
information required to be stated therein.
On March 29, 2021, Orphazyme issued a press release "announc[ing]
its phase 2/3 trial evaluating arimoclomol for the treatment of
[IBM] . . . did not meet its primary and secondary endpoints."
On this news, Orphazyme's ADS price fell $3.59 per ADS, or 28.97%,
to close at $8.80 per ADS on March 29, 2021.
On May 7, 2021, Orphazyme issued a press release "announc[ing]
topline data from pivotal trial of arimoclomol in [ALS.]" The press
release disclosed that the Company's "pivotal trial . . . did not
meet its primary and secondary endpoints to show benefit in people
living with ALS."
On this news, Orphazyme's ADS price fell $2.81 per ADS, or 32.83%,
to close at $5.75 per ADS on May 7, 2021.
Then, on June 18, 2021, Orphazyme issued a press release announcing
receipt of a Complete Response Letter from the FDA following the
agency's review of the NDA for arimoclomol for the treatment of
NPC. The press release disclosed that the FDA had rejected the
arimoclomol NDA for NPC "based on needing additional qualitative
and quantitative evidence to further substantiate the validity and
interpretation" of certain data and "that additional data are
needed to bolster confirmatory evidence beyond the single phase 2/3
clinical trial to support the benefit-risk assessment of the NDA."
On this news, Orphazyme's ADS price fell $7.23 per ADS, or 49.66%,
to close at $7.33 per ADS on June 18, 2021.
Finally, on June 21, 2021, investor resource website Seeking Alpha
reported that "Orphazyme [was] cut to sell at Guggenheim after [the
Company's] regulatory snub" by the FDA, stating, among other
things, that "[w]ith a $1.00 price target for the stock indicating
a downside of ~86.4%, Guggenheim notes that there is 'little
optionality left in the stock,' and adds 'it might make sense to
wind down the company.'"
On this news, Orphazyme's ADS price fell $0.81 per ADS, or 11.05%,
to close at $6.52 per ADS on June 21, 2021.
As of the time the complaint was filed, the price of Orphazyme ADSs
continued to trade below the $11.00 per ADS Offering price,
damaging investors.
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]
OSCAR HEALTH: Faces Abitbol TCPA Suit in C.D. California
--------------------------------------------------------
A class action lawsuit has been filed against Oscar Health, Inc.
The case is captioned as David Abitbol v. Oscar Health, Inc., Case
No. 2:21-cv-05431-AB-PD (C.D. Cal., July 5, 2021).
The suit alleges violation of the Telephone Consumer Protection Act
(TCPA) involving restrictions of use of Telephone Equipment and is
assigned to the Hon. Judge Andre Birotte Jr.
Oscar Health is an American health insurance company, founded in
2012 by Joshua Kushner and Mario Schlosser, and is headquartered in
New York City.[BN]
The Plaintiff is represented by:
Rachel Kaufman, Esq.
KAUFMAN PA
400 NW 26th Street
Miami, FL 33127
Telephone: (305) 469-5881
E-mail: rachel@kaufmanpa.com
PINE CLUB: Church Amended Bid for Conditional Class Cert. Overruled
-------------------------------------------------------------------
In the class action lawsuit captioned as TERRI CHURCH, individually
and on behalf of others similarly situated, v. THE PINE CLUB, LLC,
Case No. 3:20-cv-00135-WHR (S.D. Ohio), the Hon. Judge Walter H.
Rice entered a decision and order:
1. overruling the defendant's motion for judgment on the
pleadings; and
2. overruling plaintiff's amended motion for conditional
class certification and court-supervised notice to
potential opt-in plaintiffs without prejudice to refiling
within 60 days.
The Court said, "Proof that the Defendant failed to inform Terri
Church of the provisions of 29 U.S.C. section 203(m)(2)(A) prior to
taking the tip credit does not prove that the Defendant failed to
do the same with respect to any other putative class member. Absent
the affidavit or declaration of at least one other tipped server at
The Pine Club to support a finding that Defendant had a policy of
taking the tip credit without complying with the statute’s notice
provision, the Plaintiff is unable to satisfy her burden of making
even a "modest factual showing" that she is similarly situated to
the other tipped servers at The Pine Club."
On behalf of herself and others similarly situated, the Plaintiff
Terri Church filed suit against her former employer, The Pine Club,
LLC, alleging violations of the Fair Labor Standards Act (FLSA),
the Ohio Minimum Fair Wage Standards Act, and the Ohio Prompt Pay
Act. On behalf of herself only, she also asserts a claim of
unlawful retaliation in violation of Ohio Revised Code Chapter
4112.
In 2011, the Plaintiff Terri Church was hired as a server at The
Pine Club, a restaurant in Dayton, Ohio.
A copy of the Court's order dated July 15, 2021 is available from
PacerMonitor.com at https://bit.ly/3rwsFPC at no extra charge.[CC]
PINTEREST INC: Class Status Bid Filing Due March 10
---------------------------------------------------
In the class action lawsuit captioned as BLAINE HARRINGTON III, v.
PINTEREST, INC., Case No. 5:20-cv-05290-EJD (N.D. Cal.), the Hon.
Judge Edward J. Davila entered a case management order:
Event Deadline
-- Deadline for filing motion for March 10, 2022
class certification:
-- Deadline for Plaintiff to April 4, 2022
serve Final Identification of
Alleged Infringements
-- Deadline for any opposition to the May 5, 2022
motion for class certification
-- Deadline for the reply brief in June 2, 2022
support of class certification
-- Hearing on Plaintiff's motion June 16, 2022
for class certification
-- Joint Trial Setting Conference August 8, 2022
Statement
-- Trial Setting Conference August 18, 2022
-- Fact Discovery Cutoff Sept. 12,2022
-- Disclosure of experts October 3, 2022
-- Opening Expert Reports October 31, 2022
-- Rebuttal Experts Reports December 5, 2022
-- Expert Discovery Cutoff December 19, 2022
Pinterest is an American image sharing and social media service
designed to enable saving and discovery of information on the
internet using images and, on a smaller scale, animated GIFs and
videos, in the form of pinboards.
A copy of the Court's order dated July 15, 2021 is available from
PacerMonitor.com at https://bit.ly/2UArEdv at no extra charge.[CC]
POLK STATE: Faces Suit Over Student Fees During COVID-19
--------------------------------------------------------
Gary White, writing for The Ledger, reports that Polk State College
is facing a lawsuit that tests the validity of a new state law
designed to shield colleges from such actions.
A student from Lakeland serves as lead plaintiff in a class-action
suit alleging the college collected student fees last year but
provided no services as campuses were largely closed amid COVID-19
safety protocols. Though Shantrell Fisher is the only student named
in the suit, the challenge seeks to recover fees paid by all Polk
State students in the academic semesters of 2020.
The Florida Legislature passed a measure (HB 1261) in this year's
session intended to protect public colleges and universities from
class-action lawsuits seeking refunds based on closures during the
pandemic. Gov. Ron DeSantis signed the bill into law in June.
But John Yanchunis, the lawyer who filed the suit against Polk
State College in 10th Judicial Circuit Court, said he doesn't think
the law is constitutional. Yanchunis, who leads the class-action
department of Morgan & Morgan, cited two main factors.
State statute gives the Florida Supreme Court, not the Legislature,
the authority to set rules for civil procedures. In addition,
Yanchunis said, the U.S. Constitution prohibits the adoption of
laws that apply retroactively, either criminalizing or protecting
actions after the fact.
More like this:Polk schools ditch hybrid learning for on-campus or
Polk Virtual School instruction only
Also:Florida Southern College student sues for tuition refund over
online classes
"So if this law were to be enforced, then every student would have
to file individual lawsuits," Yanchunis said. "So think about that.
Florida judges are already overworked with the volume of cases in
front of them. So rather than alleviate the burden on the
judiciary, this would just multiply the burden."
The lawsuit does not seek to recover money paid for tuition. It
instead focuses on student fees collected to cover services that
Yanchunis said Polk State didn't offer while access to its campuses
in Winter Haven and Lakeland was limited.
The suit mentions fees collected for student activities, technology
and student services. The amounts for each student are relatively
small, totaling $13.42 in Fisher's case. (Students in bachelor's
programs pay slightly higher rates.)
But the class-action suit seeks to reclaim those fees for all
students enrolled at Polk State last year. The suit, seeking more
than $100,000 in damages, states that the eligible plaintiff class
is presumed to be at least 20,000.
That would equate to more than $268,000 in collective fees paid.
"I never want to minimize how a dollar affects anyone, and, again,
to emphasize that students are on limited budgets, sometimes have
limited or no income," Yanchunis said. "Any dollar is precious to
them, and the fact that we are dealing with relatively small but
otherwise important dollars — again, a class-action device allows
the efficiency of advocating the judgment, the claims of everybody
who is similarly affected."
Polk State spokeswoman Madison Fantozzi said the college would not
comment on an active lawsuit. Fisher could not be reached.
Polk State is not the only public institution facing a lawsuit over
student fees. Morgan & Morgan has filed similar suits against at
least eight colleges and universities, including Florida A&M,
Florida State University and the University of South Florida, and
other firms have also filed suits.
Yanchunis said a judge ruled in favor of the plaintiffs in a suit
against Miami Dade College. The college has appealed the ruling.
The complaint says the suit is one of many filed across the country
demanding refunds of fees paid for resources and services that were
not available to students during campus closures. The complaint
says that colleges and universities made millions of dollars in
revenue from fees students paid for on-campus services.
The lawsuit alleges breach of contract and "unjust enrichment" on
the part of Polk State.
The suit does not question the need for closing campuses or largely
switching to remote learning during the pandemic and even praises
college leaders for taking those actions.
"So the justification for going virtual is certainly understandable
and is one that we accept," Yanchunis said. "It's the collection of
money beyond providing a benefit, when no benefit was provided,
that we seek to address. And this is a matter of contract."
The complaint mentions on-campus computer access as one of the
usual services Fisher and other students lost during the campus
closures while still being charged technology fees.
Yanchunis said the practice of filing class-action suits derives
from common law and predates established statutes. Without that
option, plaintiffs seeking refunds for relatively small amounts
would have to sue individually, spending more on lawyers and court
fees than they could hope to recover.
The suit addresses the concept of sovereign immunity, which
protects public entities from some legal actions. The complaint
cites court rulings in Florida concluding that state universities
do not have immunity from claims based on "express contracts," or
the promise of services to be provided in exchange for student
fees.
"The law does not protect government from the repercussions of
entering into contract and then not performing it," Yanchunis said.
"It is a fundamental concept of fairness, the expectation that if
something is paid for it will be delivered. It was not here."
Yanchunis filed the lawsuit in March, and the case was assigned to
Judge William Sites. The case is now in the discovery phase, the
pre-trial process in which each party may seek evidence from the
other side.
The lead lawyer for Polk State, Robert Sniffen of Tallahassee,
filed a motion in May to have the suit dismissed. In the filing,
Sniffen asserted the sovereign immunity defense and said that no
contract existed between Fisher and the college.
Sniffen also argued that the concept of "voluntary payment
doctrine" invalidated Fisher's claims. His filing said that student
fees are mandated by state law and are not paid on a "fee for
service" basis.
"That plaintiff is trying to take advantage of the tragic
circumstances caused by COVID-19 in the face of the heroic efforts
by College officials to minimize the disruption to students is
shameful," Sniffen wrote.
In the most recent action, the plaintiffs filed opposition last
month to Polk State's motion for an extension of time to respond to
discovery requests. No trial date has been set. [GN]
PPG EMPLOYEE: Jackson Lewis Attorneys Discuss Court Ruling
----------------------------------------------------------
Sarah Gasperini, Esq., and René Thorne, Esq., of Jackson Lewis
P.C., in an article for JDSupra, report that in Bellon v. PPG Emp.
Life & Other Benefits Plan, PPG Industries, Inc. & the PPG Plan
Administrator, the Northern District of West Virginia recently
addressed whether a predecessor company may be held liable for a
decision made by its corporate successor to terminate retiree life
insurance coverage and related benefits following spin-off.
The retiree plaintiffs asserted that company-provided life
insurance coverage was wrongly terminated after their former
employer, defendant PPG, spun off its commodity chemicals division
(to which they once belonged) into a separate public entity called
Axiall Corp. Axiall assumed responsibility for certain benefits of
PPG's retirees and later terminated those benefits.
Rejecting that argument, the court granted summary judgment for
defendant employer, PPG, its plan, and the plan administrator on
all counts, finding plaintiffs' claims for benefits,
discrimination, interference, breach of fiduciary duty, refusal to
furnish information, and common law breach of contract failed as a
matter of law.
In so holding, the court recognized that taking necessary steps to
complete a business transaction -- here, predecessor PPG
transferring benefits liabilities for its commodity chemicals
division to a separate, newly created successor entity, Axiall
Corp. -- does not trigger PPG's general fiduciary duties under
ERISA, nor create liability for PPG where the terminated benefits
were unvested, and where PPG was no longer associated with the
plan.
The court also recognized that defendants could not be liable to
retiree plaintiffs and their surviving spouses for benefits because
defendants were not responsible for the benefits termination
decision (the successor Axiall Corp. was) and plaintiffs were not
participants in PPG's plan when their retiree benefits terminated
(they were participants in Axiall's plan).
The court likewise rejected retiree plaintiffs' arguments that
their life insurance benefits vested under predecessor PPG's plan
so they could not be transferred or terminated, reiterating that an
employer's commitment to vest benefits must be stated in clear and
express plan language. Accordingly, the court found that plan
language stating only that, "[t]his coverage is provided by the
Company" could not establish a promise of lifetime benefits
provided by the predecessor.
In denying plaintiffs' claims, the court also reaffirmed that ERISA
does not prohibit an employer from terminating or modifying
benefits not vested nor does it prevent an employer from pursuing
its business interests as employer when not administering the plan
or making investments.
The case is Bellon et al. v. PPG Emp. Life & Other Benefits Plan,
PPG Industries, Inc. & the PPG Plan Administrator, No.
5:18-cv-00114 (N.D. W.Va. June 28, 2021). [GN]
QUANTUM HEALTH: Deadline for Class Cert. Bid Filing Due Nov. 19
---------------------------------------------------------------
In the class action lawsuit captioned as Snider v. Quantum Health,
Inc., Case No. 2:20-cv-02296 (S.D. Ohio), the Hon. Judge Chelsey M.
Vascura entered a notation order that per the parties' agreement,
the deadline for filing a motion for class certification is
November 19, 2021.
The suit alleges violation of the Fair Labor Standards Act.
Quantum Health offers a uniquely powerful solution to drive
healthcare benefits performance.[CC]
QUAPAW HOUSE: Court OK's Schatz Amended Bid for Class Certification
-------------------------------------------------------------------
In the class action lawsuit captioned as AMANDA SCHATZ,
Individually and on Behalf of All Others Similarly Situated, v.
QUAPAW HOUSE, INC. and CASEY BRIGHT, Case No. 5:20-cv-05066-TLB
(W.D. Ark.), the Hon. Judge Timothy L. Brooks entered an order:
1. granting the Plaintiff's amended motion for class
certification;
2. certifying a class defined as:
"individuals employed by Quapaw House, Inc. and Casey
Bright since January 1, 2020;"
3. designating the Plaintiff Amanda Schatz as Class
Representative;
4. appointing Miller, Butler, Schneider, Pawlik, & Rozzell,
PLLC as Class Counsel; and
5. approving the Notice and disseminating via U.S. Mail and
electronic mail to each class member's last known address
and email address within 30 days of the entry of this
order.
The Court said, "This litigation has more than two hundred
potential class members. The class members will present similar
facts and argue similar questions of law. It would be inefficient
to require individual actions by each of the two hundred class
members. The Court finds the superiority requirement is
satisfied."
The Defendant Quapaw is a non-profit organization headquartered in
Hot Springs, Arkansas, that provided residential treatment and
mental health services throughout the state. The Defendant Casey
Bright was the Chief Executive Officer of QHl until he resigned on
March 18, 2020. Ms. Schatz was a program director at QHI's facility
in Bentonville. In early 2020, QHI was experiencing financial
hardship. Ms. Schatz alleges that she and other employees have not
been paid for any work they performed since February 25, 2020.
Furthermore, Ms. Schatz alleges that deductions for health
insurance premiums were taken from paychecks issued in February,
but QHI stopped providing health insurance on January 31. On April
16, 2020, Ms. Schatz filed suit on behalf of herself and others
similarly situated, alleging violations of both the federal Fair
Labor Standards Act ("FLSA") and the Arkansas Minimum Wage Act
("AMWA").
The Defendants failed to respond, and a Clerk's default was entered
against each of them. By that time, Ms. Schatz had been officially
terminated on April 20, 2020, and QHI had been placed in
receivership. See Docs. 40-1 & 40-2. Ms. Schatz filed an Amended
Complaint, adding a claim for failure to pay wages owed at
termination, in violation of Arkansas Code section 11-4-405. Ms.
Schatz was not able to locate Mr. Bright for service in his
personal capacity and as the registered agent of QHI, so the Court
permitted service via warning order.
The Defendants' answer was due March 29, 2021, following
publication of the warning order. However, no responsive pleading
was filed, and the Clerk once again entered the default of each
Defendant.
A copy of the Court's order dated July 15, 2021 is available from
PacerMonitor.com at https://bit.ly/3y0Sud4 at no extra charge.[CC]
SANTANDER CONSUMER: Court Denies Bid to Remand Gallagher Class Suit
-------------------------------------------------------------------
In the lawsuit styled ROBERT J. GALLAGHER, Plaintiff v. SANTANDER
CONSUMER USA INC., Defendant, Case No. 4:20-cv-01083-SEP (E.D.
Mo.), the U.S. District Court for the Eastern District of Missouri,
Eastern Division, denies the Plaintiff's motion for remand.
Defendant Santander, a sales financing company, had a lien on
Plaintiff Robert Gallagher's 2007 Chevrolet Trailblazer. Gallagher
alleges he satisfied this lien on April 11, 2017, and Santander
sent Gallagher an unnotarized letter on May 2, 2017, confirming
that the lien was paid in full. In the letter, Santander included a
copy of the Retail Installment Contract, which was stamped April
30, 2017, indicating the lien was paid in full as of that date.
The Plaintiff brought this action in state court, asserting a claim
under Mo. Rev. Stat. Section 301.640(1) & (4) for failure to timely
release his lien and to timely certify the release of his lien.
Under Section 301.640(1), a lienholder must, in the time prescribed
by the statute, release the lien on the certificate of title or a
separate document and mail or deliver these documents to the person
satisfying the lien. Failure to comply permits a remedy of damages
that are scaled according to the length of non-compliance, starting
at $500 for failure to comply within five business days and
increasing to $2,500 if non-compliance extends to twenty business
days.
Mr. Gallagher seeks damages, as well as the establishment of a
Missouri class. The proposed class consists of:
All Missouri residents who within the statute of limitations
owned a Missouri-titled vehicle on which Defendant had a
lien or encumbrance, and either or both of the following
occurred:
(a) Defendant did not release the lien or encumbrance within
five business days after the lien or encumbrance was
satisfied; or
(b) the owner of the vehicle was not sent a certificate or
separate document evidencing Defendant's release of its
lien within five business days after the lien or
encumbrance was satisfied.
On Aug. 17, 2020, Santander removed this action under the Class
Action Fairness Act. On Sept. 11, 2020, Gallagher filed the Motion
to Remand.
The Defendant's Notice of Removal alleges that all three CAFA
requirements are satisfied. The Plaintiff does not dispute that
minimal diversity is met here--that is, that he is a citizen of
Missouri and the Defendant is a citizen of Illinois and Texas. But
the parties dispute whether the $5 million amount in controversy
and CAFA's 100-member (or "numerosity") requirements have been met.
Gallagher contends that the Defendant cannot show that the putative
class contains the thousands of class members that would be
necessary to reach $5 million because, at least in part, the
Defendant denied in its Answer that there are even 40 class
members.
The Court disagrees. First, Santander has established by a
preponderance of the evidence that there are at least 100 class
members. When determining jurisdiction under CAFA, the Court can
look to both the face of the complaint and the notice of removal,
citing Davis v. Citibank, N.A., 2014 WL 6673520, at *2 (E.D. Mo.
Nov. 24, 2014).
In the Complaint, Mr. Gallagher alleged that Santander's violations
were a "widespread, uniform practice." With the Notice of Removal,
Santander submitted an affidavit from Randy Bockenstedt, Senior
Director of Collections for Santander, stating that Santander
released more than 44,000 liens relating to vehicle loan accounts
in Missouri between 2015 and 2020.
If the alleged misconduct was a "widespread, uniform practice," and
Santander released more than 44,000 liens in the relevant
geographical area during the relevant time period, then it is a
reasonable deduction that at least 100 people were affected,
District Judge Sarah E. Pitlyk states. She holds that Santander's
denial in the Answer "that there are even 40 class members" does
not preclude satisfaction of the numerosity requirement. She adds
that requiring Santander to admit that there are more than 40
customers whose liens it failed to timely release would require
Santander to confess at least some liability in order to establish
federal jurisdiction. It is well established that a defendant need
not "confess liability" to establish a jurisdictional requirement.
Judge Pitlyk also finds that Santander has also satisfied the $5
million amount-in-controversy requirement. Gallagher argues that
the only evidence submitted--the affidavit--is overinclusive
because it does not identify which of the 44,000 liens were
untimely released. The evidence requires "speculation and
conjecture" to establish the amount in controversy, Gallagher
contends.
Despite Santander's denial that there are even 40 class members, a
factfinder could legally conclude that the class includes over 100
members and that the amount in controversy exceeds $5 million,
Judge Pitlyk holds. She points out that Gallagher has offered no
evidence of legal impossibility. Simply second-guessing the
Defendant's allegations is insufficient.
Accordingly, the Plaintiff's Motion for Remand is denied.
A full-text copy of the Court's Memorandum and Order dated July 1,
2021, is available at https://tinyurl.com/7dadrdj4 from
Leagle.com.
SCHOOLADVISOR LLC: Munoz Has Until Jan. 18 to File Class Status Bid
-------------------------------------------------------------------
In the class action lawsuit captioned as Munoz v. Schooladvisor,
LLC, Case No. 1:20-cv-00440 (E.D. Cal.), the Hon. Judge Erica P.
Grosjean entered an order granting stipulation to extend all
remaining deadlines:
-- Non Expert Discovery for Phase I Oct. 1, 2021
and Phase II due by:
-- Expert Disclosure re Class Nov. 8, 2021
Certification due by:
-- Rebuttal Expert Disclosure Dec. 6, 2021
re: Class Certification due:
-- Expert Discovery re Class Jan. 10, 2022
Certification due:
-- Motion for Class Certification Jan. 18, 2022
filed by:
The suit alleges violation of the Telephone Consumer
Protection.[CC]
SCRIPPS HEALTH: Garren Sues Over Alleged Medical Data Breach
------------------------------------------------------------
JAMES D. GARREN, individually and on behalf of all others similarly
situated, Plaintiff v. SCRIPPS HEALTH, Defendant, Case No.
3:21-cv-01238-L-WVG (S.D. Cal., July 8, 2021) is an action seeking
to hold the Defendant to be responsible for the harms it caused the
Plaintiff and the Class in the massive and preventable ransomware
attack that took place on or around April 29, 2021, by which
cybercriminals infiltrated the Defendant's inadequately protected
network servers where highly sensitive personal and medical
information was being kept unprotected ("Data Breach" or
"Breach").
As alleged in the complaint, the Plaintiff and Class members were
required, as patients of Scripps, to provide the Defendant with
their "Personal and Medical Information", with the assurance that
such information would be kept safe from unauthorized access. By
taking possession and control of Plaintiff's and Class members'
Personal and Medical Information, Defendant assumed a duty to
securely store and protect the Personal and Medical Information of
Plaintiff and the Class.
The Defendant breached this duty and betrayed the trust of the
Plaintiff and Class members by failing to properly safeguard and
protect their Personal and Medical Information, thus enabling
cybercriminals to access, acquire, appropriate, compromise,
disclose, encumber, exfiltrate, release, steal, misuse, and view
it. The Personal and Medical Information compromised includes
names, addresses, dates of birth, health insurance information,
medical record numbers, patient account numbers, clinical
information, dates of service, treatment information, Social
Security numbers, and driver's license numbers.
The Defendant's misconduct in failing to timely implement adequate
and reasonable measures to protect Plaintiff's Personal and Medical
Information, failing to timely detect the Data Breach, failing to
take adequate steps to prevent and stop the Data Breach, failing to
disclose the material facts that it did not have adequate security
practices in place to safeguard the Personal and Medical
Information, and failing to honor its promises and representations
to protect Plaintiff's and Class members' Personal and Medical
Information, caused substantial harm and injuries to Plaintiff and
Class members across the U.S.
SCRIPPS HEALTH operates as a hospital. The Hospital provides
audiology, behavioral health, cardiology, cosmetic surgery, and
critical care. [BN]
The Plaintiff is represented by:
Joel E. Elkins, Esq.
WEISSLAW LLP
9100 Wilshire Blvd. Suite 725 E.
Beverly Hills, CA 90210
Telephone: (310) 208-2800
Facsimile: (310) 209-2348
E-mail: jelkins@weisslawllp.com
SHERIFF MIKE: Class Cert. Bid Filing Due Feb. 4, 2022
-----------------------------------------------------
In the class action lawsuit captioned as ALECIA KIRBY and CARLOS
CRUZ, v. SHERIFF MIKE WILLIAMS, et al., Case No.
3:21-cv-00332-BJD-JBT (M.D. Fla.), the Hon. Judge entered an case
management and scheduling order:
-- Mandatory Initial Disclosures: August 2, 2021
-- Certificate of Interested August 2, 2021
Persons and Corporate Disclosure
Statement
-- Motions to Add Parties or Nov. 15, 2021
to Amend Pleadings
-- Disclosure of Expert Plaintiff: Feb. 4, 2022
Reports Defendant: March 4, 2022
Rebuttal: April 4, 2022
-- Discovery Deadline May 2, 2022
-- Deadline to move for Feb. 4, 2022
class certification
-- Mediation Deadline: July 18, 2022
A copy of the Court's order dated July 15, 2021 is available from
PacerMonitor.com at https://bit.ly/3rvhFCb at no extra charge.[CC]
SIX FLAGS: Oct. 29 Class Action Settlement Fairness Hearing Set
---------------------------------------------------------------
Jonathan E. Meer, Esq., of Wilson Elser Moskowitz Edelman & Dicker
LLP, in an article for Mondaq, reports that in the past 20 years,
the number of electronic privacy statutes enacted in the United
States and abroad has grown substantially. These laws, from the
EU's General Data Protection Regulation (GDPR) to California's
Consumer Privacy Act, impact the means of collecting, storing,
selling, and/or deleting personal information from internet users
by private entities.
One law that is a growing cause for concern in connection with
corporate liability risk is the Illinois Biometric Information
Privacy Act, 740 ILCS 14/1 et seq. (BIPA). Biometric information is
one of the most personal forms of information and, as such, is
often subject to separate and stricter protection when compared
with other electronic data. BIPA, first enacted in 2008, has been
the basis for significant litigation venued in Illinois and
elsewhere in the United States. Unlike other iterations of
biometric laws found in Texas and Washington, BIPA provides a
private right of action, making it the subject of many resulting
class action settlements in the millions of dollars. As the
legislatures in New York and Maryland have now proposed legislation
similar to BIPA, insurers should be aware of how the BIPA statute
works, its growing application, and its potential impact in the
years to come.
Defining BIPA
Biometric data involves unique physical characteristics by which a
person can be recognized, such as fingerprints, retina or iris
scan, facial geometry, or a recording of the voice. Biometrics are
being used in a number of areas, including law enforcement and
health care, as well as for physical access to buildings and
consumer identification. This includes collection of such data by
private entities in connection with the work of their own
employees, as well as with respect to customers and external
users.
Illinois was one of the first states to address the concerns of
biometric privacy with the passage of BIPA in 2008. As the 740 ILCS
14/5(g) statute itself notes:
BIPA was adopted in connection with the growing use of biometrics
"in the business and security screening sectors and appears to
promise streamlined financial transactions and security
screenings."
An "overwhelming majority of members of the public are weary of the
use of biometrics when such information is tied to finances and
other personal information."
BIPA created a means of regulating the "collection, use,
safeguarding, handling, storage, retention, and destruction of
biometric identifiers and information."
BIPA outlined that no private entity "may collect, capture,
purchase, receive through trade, or otherwise obtain a person's or
a customer's biometric identifier or biometric information, unless"
they receive informed written consent.
Under BIPA "no private entity in possession of a biometric
identifier or biometric information may sell, lease, trade, or
otherwise profit from a person's or a customer's biometric
identifier or biometric information."
BIPA provides a private right of action against a private entity
that negligently or intentionally violates the Act, allowing for
liquidated damages of $1,000 to $5,000, plus reasonable attorneys'
fees and costs.
Two other states, Texas and Washington, notably addressed the
protection of biometric information. The Texas law, Chapter 503,
Title 11, which has been in place since 2009, outlines that a
person may not capture biometric information for a commercial
purpose unless that person is informed and consents. Chapter 19.375
of the Revised Code of Washington also requires similar consent.
That said, under the Texas and Washington laws, only the state
attorney general can bring an action for a violation of biometric
privacy. As a result of this lack of "private action," the number
of matters involving the biometric protection of Texas and
Washington residents is far fewer compared with those brought under
BIPA.
Litigation
What has made BIPA stand out is its private right of action to
address damages in connection with a private entity's use of
biometric information. One of the most significant cases involving
BIPA is the January 2019 decision by the Illinois Supreme Court in
Rosenbach v. Six Flags Entertainment Corporation, 2019 IL 123186
(Ill 2019), which held that a plaintiff need only allege a
violation of BIPA and not "actual harm" to satisfy the statutory
requirements for bringing a claim as an "aggrieved person."
More than two years later, on May 14, 2021, the court in Rosenbach,
Case No. 16-CH-13, Lake County, IL, Circuit Court, approved a class
action settlement of $36 million on behalf of individuals who had
their fingerprints scanned at the Six Flags theme park between
October 1, 2013, and December 31, 2018. The court is expected to
rule on final approval after a settlement fairness hearing
scheduled for October 29, 2021.
Following the Rosenbach decision, the number of class actions
involving BIPA grew exponentially. The most prominent of these is
In Re Facebook Biometric Information Privacy Litigation
(15-cv-3747), which is still before the U.S. District Court for the
Northern District of California. In 2019, the Ninth Circuit
affirmed the District Court's order certifying a class of Illinois
Facebook users who alleged BIPA violations in connection with
Facebook's use of facial-recognition technology "without obtaining
a written release and without establishing a compliant retention
schedule." Patel v. Facebook, Inc., 932 F.3d 1264, 1267 (9th Cir.
2019), cert. denied, 140 S. Ct. 937, 205 L. Ed. 2d 524 (2020). In
January 2021, the Court rejected the parties' initial settlement
proposal of $550 million as being inadequate to compensate the
roughly six million Illinois residents. The parties re-negotiated a
settlement at $650 million, which the Northern District of
California approved.
Additional Cases
There have been other significant settlements under BIPA, including
the tentative $92 million class action settlement in In Re TikTok,
Inc Consumer Privacy Litigation, 20-cv-04699 (N.D. Ill). To date,
the court has not granted preliminary approval of the settlement
over concerns about potential opt-outs and the settlement's value
for the class of Illinois TikTok users.
There also are a number of BIPA cases currently on appeal to the
Illinois appeals court and the Seventh Circuit. In McDonald v.
Symphony Bronzeville Park, LLC, No. 1-19-2398, the Illinois Supreme
Court will answer whether the Illinois Workers' Compensation Act
bars claims for statutory damages under BIPA after both the trial
and appellate courts held there was no such bar. Tims v. Black
Horse Carriers, which is on appeal before the Illinois Appellate
Court for the First District, will answer the certified question of
whether a five-year or a one-year statute of limitations governs
BIPA, while in Marion v. Ring Container Techs. LLC, the Illinois
Appellate Court for the Third District will resolve whether a
one-year, two-year, or five-year limitations period governs.
Finally, Cothron v. White Castle System, Inc., No. 20-3202,
currently before the Seventh Circuit, is addressing whether each
time biometric information is collected without consent is a
separate event.
There are a significant number of lawsuits that remain pending
involving BIPA, and there does not appear to be any slowdown.
Other Legislative Initiatives
With the growing rise in BIPA litigation, it is not surprising that
other states are considering similar legislation. New York's state
assembly at the beginning of 2021 proposed Assembly Bill 27, the
Biometric Privacy Act (BPA). Similar to BIPA, the proposed New York
law is focused on the need for a company to have a publicly
available written policy on getting informed consent for the
retention, collection, disclosure, and destruction of a person's
biometric information. Significantly, like BIPA but unlike the laws
in Texas and Washington, the proposed BPA provides a private right
of action for any person "aggrieved by a violation" of the proposed
bill. The potential liquidated damages for negligent violation of
BPA is similar to BIPA, with damages between $1,000 and $5,000,
plus reasonable attorneys' fees and costs.
Maryland's bill, Biometric Identifiers and Biometric Information
Privacy Act, H.B. 218 and S.B. 16, is similar to BIPA and the
proposed New York law in requiring that a private entity possessing
biometric information needs to have a written policy regarding the
collection, retention, and destruction of the biometric
information. However, the Maryland bill notes that such a policy
may not necessarily be made public if the collection of such
information applies only to employees and is used for the
organization's internal operations. Similar to Illinois, the
Maryland bill specifically states that a private entity "may not
sell, lease, trade, or otherwise profit from an individual's
biometric identifiers or biometric information." The potential
damages under the proposed Maryland law of $1,000 to $5,000, plus
attorneys' fees, is similar to BIPA and the proposed New York
bill.
Analysis
Given the amount of litigation stemming from BIPA, the proposed
bills in New York and Maryland have the potential to generate an
influx in the number of claims regarding collection, storing,
dissemination, and/or destruction of biometric information. While
BIPA only applies to Illinois residents, companies often engage in
interstate commerce, and complying with the most restrictive
statute can help limit potential liability. Further, if legislation
such as those proposed in New York and Maryland are enacted, being
proactive and transparent with corporate policies on biometrics
will help with compliance.
That said, insurers should be aware of the potential liability for
organizations related to their insureds' collection of biometric
information and identifiers.
On a basic level, insurers should be made aware if their insured is
collecting biometric information and the purpose for such
collection.
There also should be an understanding of the insured's corporate
policies involving biometric data and whether they are ensuring
proper security around such data.
Further, the insurer should determine if there is a policy by the
insured that prohibits the sale of biometric data, since none of
the current or proposed statutes permit such a sale.
If the insured is collecting such information, it should advise
whether it has a written release and disclosures for end users and
employees that are compliant with BIPA and related statutes.
These points are important because recent insurance coverage cases
involving BIPA demonstrate that such violations may be covered
under commercial general liability policies. One recent example is
West Bend Mutual Ins. Co. v. Krishna Schaumburg Tan Inc., 2021 IL
125978 (May 20, 2021), where the Illinois Supreme Court held that a
general liability insurer must defend a tanning salon against a
customer's BIPA claims because the proposed class action alleged a
privacy violation that was potentially covered. This issue
continues to be litigated, as reflected in Citizens Insurance Co.
v. Wynndalco Enterprises LLC, 20-cv-03873, in the U.S. District
Court for the Northern District of Illinois, where there is
declaratory judgment action and pending motion for judgment on
pleadings for BIPA coverage under a general liability insurance
policy.
Cases such as Rosenbach, In Re Facebook, and In Re TikTok, Inc.
reflect the potential significant damages to an insured and its
insurer for noncompliance with BIPA. While those example cases
involved only Illinois residents, if the proposed New York and
Maryland laws are enacted, many of their state residents of 20
million and 6 million, respectively, are potential plaintiffs.
Biometric data has potential benefits to increase efficiencies and
security for business, but with that great power comes great
responsibility. With the increase in sophistication of biometric
technology, the risks involving biometric information likely will
continue to increase in 2021 and beyond, and insurers should be
aware of the potential risks. [GN]
SLSCO LTD: Vazquez Suit Seeks to Certify State Law Classes
----------------------------------------------------------
In the class action lawsuit captioned as JOSE VAZQUEZ, Individually
and on behalf of all others similarly situated, v. SLSCO LTD., a
Texas Limited Partnership, Case No. 1:20-cv-11343-FDS (D. Mass.),
the Plaintiff asks the Court to enter an order:
1. certifying state law classes under Massachusetts and North
Carolina law pursuant to Rule 23 of the Federal Rules of
Civil Procedure;
2. granting preliminary approval of the proposed settlements
for the Massachusetts and North Carolina Claims;
3. appointing Morgan & Morgan, P.A. ("Plaintiff's counsel")
as Class Counsel;
4. approving the use of a third-party Settlement
Administrator;
5. directing distribution of the proposed Notice of
Settlement as set forth in the Amended Settlement
Agreement and summarized herein; and
6. setting the final fairness hearing for October 29, 2021.
On July 16, 2020, the Plaintiff Vazquez brought this collective and
class action alleging that Defendant violated the Fair Labor
Standards Act (FLSA) and the wage and hour laws of Massachusetts,
North Carolina and Puerto Rico, because the Defendant paid
Plaintiffs solely day rates irrespective of the number of hours
they worked each week, and did not pay them additional overtime
compensation when they worked overtime hours.
The Defendant filed its Answer on September 1, 2020, in which is
denied that it violated the FLSA, or the wage and hour laws of
Massachusetts, North Carolina and/or Puerto Rico.
The Parties agreed to attempt to settle the class claims, prior to
the formal discovery and significant documentary evidence
informally for that purpose. The documents exchanged included those
identifying the class members, their weeks worked, and the rates
paid, among other things. After extensive negotiations and the
exchange of further information, the parties ultimately reached a
settlement of the Massachusetts and North Carolina class claims,
and of the Plaintiff and individual opt-ins FLSA claims as well.
A copy of the Plaintiff's motion to certify classes dated July 15,
2021 is available from PacerMonitor.com at https://bit.ly/3ydnjvn
at no extra charge.[CC]
The Plaintiff is represented by:
Andrew R. Frisch, Esq.
Kelsey Raycroft Rose, Esq.
MORGAN & MORGAN, P.A.
8151 Peters, Road Suite 4000
Plantation, FL 33324
Telephone: 954-WORKERS
E-mail: afrisch@forthepeople.com
kraycroftrose@forthepeople.com
SOULBOUND STUDIOS: Falls Suit Moved From C.D. Cal. to W.D. Wash.
----------------------------------------------------------------
The class action lawsuit captioned as James Falls v. Soulbound
Studios, LLC, et al., Case No. 2:21-cv-00961-SVW-JPR, was
transferred from the United States District Court for the Central
District of California, Los Angeles, to the United States District
Court for the Western District of Washington (Seattle) on July 6,
2021.
The Western District of Washington Court Clerk assigned Case No.
2:21-cv-00922-TLFto the proceeding.
The nature of suit is categorized as custom duties:
forfeiture-immoral articles demanding $75,000. The case is assigned
to the Hon. Judge Theresa L Fricke.
The Defendants include Does 1 through 50, inclusive, and Xsolla USA
Inc.
Soulbound Studios is a game company developing "Chronicles of
Elyria", the next evolution in MMOs.[BN]
The Plaintiff is represented by:
Christine Chalhoub Zaouk, Esq.
Evan M. Selik, Esq.
MCCATHERN LLP
523 West 6th Street Suite 830
Los Angeles, CA 90014
Telephone: (213) 225-6150
Facsimile: (213) 225-6151
E-mail: czaouk@mccathernlaw.com
KANDERSON@MCCATHERNLAW.com
Defendant Soulbound Studios LLC is represented by:
Lawrence J. Zerner, Esq.
LARRY ZERNER LAW OFFICES
1801 Century Park East Suite 2400
Los Angeles, CA 90067
Telephone: (310) 773-3623
Facsimile: (310) 388-5624
E-mail: larry@zernerlaw.com
Defendant Xsolla USA Inc. is represented by:
Cheryl S Chang, Esq.
Dennis M.P. Ehling, Esq.
Harrison Maxwell Brown, Esq.
BLANK ROME LLP
2029 Century Park East 6th Floor
Los Angeles, CA 90067
Telephone: (424) 239-3400
Facsimile: (424) 239-3434
E-mail: chang@blankrome.com
ehling@blankrome.com
hbrown@blankrome.com
SOULBOUND STUDIOS: Wrongfully Withheld Money, Falls Class Suit Says
-------------------------------------------------------------------
JAMES FALLS, individually and on behalf of other persons similarly
situated v. SOULBOUND STUDIOS, LLC; SOULBOUND STUDIOS (USA); XSOLLA
(USA), Inc.; and DOES 1 through 50, Case No. 2:21-cv-00922-TLF
(C.D. Cal., July 6, 2021) is a class action lawsuit pursuant to
Fed. R. Civ. P. Rule 23, seeking damages for the conduct of the
Defendants wherein they have wrongfully withheld money from the
Plaintiff, and those similarly situated.
SBS is the company that began developing a video game called
Chronicles of Elyria ("CoE"). CoE purports to be a role-playing
video game where the consumers experience a "unique and compelling
quest system where personalized, procedurally-generated story arcs
follow characters no matter where they go in the world". Yet, CoE
has not been developed.
Xsolla was the payment processor SBS used for processing payments
directed from SBS's online store for the purchase of digital and
physical goods related to CoE.
Allegedly, SBS was in pre-production for several years. SBS began
development of CoE in November 2016. SBS had a goal through
Kickstarter to raise $900,000. Kickstarter, SBS raised $1,361,435
to develop CoE. Through SBS made approximately 8 $8,000,000 in
total sales for CoE ($1,361,435 from Kickstarter and approximately
$6,638,565 in sales via SBS's online store).
The Plaintiff is an Ohio resident.
The Defendants, Soulbound Studios USA, Soulbound Studios, LLC, and
DOES 1 through 10, are video game developers that create video
games for consumers to play.[BN]
The Plaintiff is represented by:
Evan Selik, Esq.
Christine Zaouk, Esq.
McCATHERN LLP
523 West Sixth Street, Suite 830
Los Angeles, CA 90014
Telephone: (213) 225-6150
Facsimile: (213) 225-6151
E-mail: eselik@mccathernlaw.com
czaouk@mccathernlaw.com
STATE FARM: 6th Cir. Affirms Dismissal of Irvin's Bid for More Fees
-------------------------------------------------------------------
The United States Court of Appeals for the Sixth Circuit affirms
the district court's dismissal of claim for additional interest and
attorney's fees in the lawsuit titled D'ELLA IRVIN, CLARA ARREBATO
PEDROSO, and KATHERINE HERNANDEZ ARREBATO, Plaintiffs-Appellants v.
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant-Appellee,
Case No. 20-5930 (6th Cir.).
State Farm Mutual denied D'Ella Irvin and other individuals car
insurance benefits based on what are known as "paper reviews" of
their claims. After the Kentucky Supreme Court invalidated this
process, State Farm paid Irvin and the other policyholders their
benefits plus 12% interest. The policyholders sued State Farm,
seeking additional interest and fees on the ground that the
insurance company acted unreasonably. The district court disagreed.
The Appellate Court affirms.
State Farm provides car insurance to Kentucky drivers. Consistent
with Kentucky law, it offers personal-injury-protection benefits,
including no-fault coverage, to reimburse "reasonably needed"
medical expenses caused by car accidents (K.R.S. Section
304.39-020(5)(a)). For some claims, State Farm once used an
expedited paper-review process. Under this process, a medical
professional would review the case records and determine whether
the medical expenses were caused by the car accident and reasonably
needed.
Plaintiffs D'Ella Irvin, Clara Arrebato Pedroso, and Katherine
Hernandez Arrebato obtained car insurance from State Farm. After
they each were involved in car accidents, they filed claims for
their medical expenses. Medical professionals reviewed their
records, concluding that their treatment had been "excessive"
rather than "reasonable and necessary." They recommended rejecting
the claims, and State Farm denied them.
In 2018, the Kentucky Supreme Court ended paper reviews of no-fault
insurance claims. It held that the Commonwealth's Motor Vehicle
Reparations Act prohibits insurers from denying no-fault benefits
solely on that basis (Gov't Emps. Ins. Co. v. Sanders, 569 S.W.3d
923, 928 (Ky. 2018)). The court rooted its decision in the Act's
"presumption that any medical bill submitted is reasonable."
In response to the decision, State Farm paid benefits to these
three individuals. It also paid them 12% interest, which the Act
calls for when an insurance company delays payment.
Plaintiffs Irvin, Pedroso, and Arrebato remained dissatisfied. They
sued State Farm on behalf of themselves and other like-treated
policyholders. In addition to what they had already received, they
sought attorney's fees and 6% more in interest on the ground that
State Farm had unreasonably denied their claims based on the
paper-review process.
State Farm removed the case to federal district court under the
Class Action Fairness Act, 28 U.S.C. Section 1332(d), then filed
motions to dismiss for lack of subject matter jurisdiction and
failure to state a claim. The district court held that the
policyholders lacked standing for their claim for unpaid benefits
and 12% statutory interest and remanded those claims to state
court. As for the claim for additional interest and attorney's
fees, the district court dismissed it for failure to state a claim
under Civil Rule 12(b)(6).
The policyholders appeal the 12(b)(6) ruling.
The policyholders root their claim for statutory interest and
attorney's fees in Kentucky law. The Motor Vehicle Reparations Act
permits attorney's fees and 18% interest (rather than the standard
12%) when overdue benefit payments are delayed without reasonable
foundation.
Chief Judge Jeffrey S. Sutton, writing for the Panel, notes that at
stake is whether State Farm acted reasonably in delaying payment
based on paper reviews of these claims. The Panel thinks it did.
As a matter of law, State Farm acted reasonably in using the
paper-review process before Sanders. The policyholders push back.
They claim that the district court ignored the Act's goal of
providing for prompt payment of needed medical care for motor
vehicle accident victim.
But no statute pursues its purpose at all costs, Judge Sutton
notes. And this purpose was not necessarily inconsistent with paper
review anyway. That the Act does not permit or prohibit paper
reviews amounts to the kind of statutory silence that the insurance
company was entitled to fill with a reasonable interpretation.
The policyholders also contend that, because the insurer in Sanders
was liable for 18% interest, State Farm should be too. But Sanders
never mentioned this issue, let alone analyzed the interest
provision. If it silently approved an 18 percent interest award, it
never explained why nor indicated that the parties joined this
debate. Absent any reasoning on this score, Sanders offers no
handhold for showing that State Farm acted unreasonably, the Judge
opines.
Two of the policyholders claim that their reimbursements did not
include the requisite 12 percent interest. But the policyholders
did not raise the point below and, thus, have forfeited it here,
Judge Sutton opines.
Last of all, the policyholders claim that the district court should
have remanded their claim under 28 U.S.C. Section 1447(c), thereby,
eliminating jurisdiction for the district court to dismiss their
claims under Civil Rule 12(b)(6). They contend that claims for
statutory interest and attorney's fees by themselves do not meet
the Class Action Fairness Act's $5 million amount-in-controversy
threshold. But the amount in controversy is set at the time of
removal, and subsequent events that "reduce the amount recoverable
below the statutory limit do not oust jurisdiction," St. Paul
Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 289-90 (1938). The
same rule applies to the Class Action Fairness Act.
So even if there is "a subsequent reduction of the amount at issue
below jurisdictional levels, a federal court will keep a removed
case," Judge Sutton opines, citing Wisconsin Dept. of Corr. v.
Schacht, 524 U.S. 381, 391 (1998). That is what happened here.
The Appeals Court affirms.
A full-text copy of the Court's Opinion dated July 1, 2021, is
available at https://tinyurl.com/4czx5ab2 from Leagle.com.
STATE FARM: Jama's Bid for Class Certification Granted in Part
--------------------------------------------------------------
The U.S. District Court for the Western District of Washington,
Seattle, grants in part the Plaintiff's motion for class
certification in the lawsuit entitled FAYSAL A. JAMA, Plaintiff v.
STATE FARM FIRE AND CASUALTY COMPANY, Defendant, Case No. C20-652
MJP (W.D. Wash.).
The case involves Defendant State Farm Fire and Casualty Company's
claims settlement process used to determine the actual cash value
(ACV) of an insured's total loss vehicle. Plaintiff Faysal Jama
attacks State Farm's practice of applying a "typical negotiation
discount" and condition deductions to the comparable cars used to
determine the ACV of an insured's total loss vehicle. These
discounts appear in reports prepared by a third-party Audatex,
which are referred to as "Autosource Reports."
The Plaintiff alleges that valuations based on Autosource Reports
with the typical negotiation discount and condition deductions
violate Washington's insurance regulations. The Plaintiff pursues
claims for: (1) breach of contract, (2) insurer bad faith, (3)
breach of the duty of good faith and fair dealing, (4) violation of
the Washington Consumer Protection Act, and (5) declaratory
judgment.
In the initial Motion, the Plaintiff sought to certify the
following class: All persons and entities within the State of
Washington that have made first-party property damage claims under
contracts of automobile insurance with State Farm that provided for
payment of the actual cash value of the policyholder's vehicle
(less any applicable deductible) in the event of total loss, and
(1) where policyholders experienced a total loss of their insured
vehicle covered under such policy, (2) where such claims for total
loss were evaluated by State Farm using the Autosource valuation
system, and (3) where such claims were paid by State Farm to the
policyholder or a lienholder without the parties agreeing to use,
and using, an alternative appraisal process described in the
policyholder's policy.
In response to criticism from State Farm, the Plaintiff's Reply
proposes two classes as follows:
(1) Typical Negotiation Deduction Class:
All persons and entities within the State of Washington
that have made first-party property damage claims under
contracts of automobile insurance with State Farm that
provided for payment of the actual cash value of the
policyholder's vehicle (less any applicable deductible) in
the event of total loss, and (1) where policyholders
experienced a total loss of their insured vehicle covered
under such policy, (2) where such claims for total loss
were evaluated by State Farm using the Autosource
valuation system which took a deduction/adjustment for
typical negotiation, and (3) where such claims were paid
by State Farm to the policyholder or a lienholder without
the parties agreeing to use, and using, an alternative
appraisal process described in the policyholder's policy;
and
(2) Condition Deduction Class:
All persons and entities within the State of Washington
that have made first-party property damage claims under
contracts of automobile insurance with State Farm that
provided for payment of the actual cash value of the
policyholder's vehicle (less any applicable deductible) in
the event of total loss, and (1) where policyholders
experienced a total loss of their insured vehicle covered
under such policy, (2) where such claims for total loss
were evaluated by State Farm using the Autosource
valuation system which took deductions for the condition
of the loss vehicle, and (3) where such claims were paid
by State Farm to the policyholder or a lienholder without
the parties agreeing to use, and using, an alternative
appraisal process described in the policyholder's policy.
As clarified during oral argument, the two classes largely overlap.
Nearly all of the insureds in the class who had a condition
deduction taken, also had the typical negotiation discount applied,
too. Roughly 8% likely had only the condition deduction applied.
Analysis
Senior District Judge Marsha J. Pechman notes that courts must
undertake a "rigorous analysis" of all the factors under Rule 23 of
the Federal Rules of Civil Procedure to determine whether to
certify a class. The plaintiff must first meet all four
requirements in Rule 23(a): numerosity, commonality, typicality,
and adequacy of representation. The plaintiff must also satisfy one
of the Rule 23(b) factors. Here Plaintiff seeks certification under
the "predominance" standard of Rule 23(b)(3).
State Farm admitted in its notice of removal that there are 8,004
total-loss claims and insureds that fall within the Plaintiff's
class definition. Hence, the Court finds that this is sufficient to
demonstrate numerosity and State Farm makes no challenge in
opposition.
The primary common contention that can be resolved on a classwide
basis is whether State Farm is permitted to settle total loss
claims with a typical negotiation discount. Resolution of this
question will be common to the class of persons paid a value
determined in an Autosource Report with the negotiation discount
applied.
Based on the Court's review of the Autosource Report examples filed
to date, it appears that the disclosures and descriptions of the
typical negotiation is uniform, and its verifiability (or lack
thereof) can be resolved on a classwide basis.
The only problem with regard to this identified commonality is the
proposed class definition, which includes insureds, who were not
necessarily paid the amount determined in an Autosource Report with
the typical negotiation discount applied, Judge Pechman notes. She
explains that such insureds would not have injuries directly
traceable to the negotiation discount and resolution of the
legality of the deduction would not necessarily resolve their
claims; but this is not fatal to the Plaintiff's request for class
certification.
Rather than deny class certification, the Court finds it
appropriate to revise the class definition to include only those
paid the value determined in an Autosource Report with the
negotiation discount applied. By so narrowing the class, the Court
ensures that the legality of the negotiation discount can be
resolved on a classwide basis. The Court, therefore, revises the
class definition of the Typical Negotiation Class.
The Plaintiff also identifies common contentions capable of
classwide resolution as to his claim that the condition deduction
violates Section 391. He points to testimony from Audatex's
30(b)(6) witness that condition deductions are unverifiable and
rely on data that is temporally and geographically noncompliant
with Section 391. The witness confirmed that Audatex does not
inspect the condition of comparable cars used on the Autosource
Report. Instead, Audatex assumes the comparable vehicles are in
typical condition.
The Court agrees with the Plaintiff that the permissibility of
these condition deductions can be resolved on a classwide basis
using common evidence. It appears that the Plaintiff can establish
that the condition deduction methodology violates Section 391 using
evidence common to the class and that resolution of the claim will
apply classwide. State Farm argues that the condition deduction is
not capable of classwide proof, relying on the decision in
Lundquist v. First Nat'l Ins. Co. of Am., No. C18-5301RJB, 2020 WL
6158984, at *2 (W.D. Wash. Oct. 21, 2020).
But in this case, Judge Pechman states, there is no need to make
any individual determination of the appropriateness the dollar
amount of each condition deduction. Instead, the Plaintiff claims
that the common methodology used to determine any condition
deduction violates Section 391 and the legality of any condition
deduction can be resolved uniformly as to the whole class. This
does not require an individual valuation determination.
But as with Plaintiff's proposed definition of the typical
negotiation deduction class, the proposed definition is overbroad
and does not limit itself to those whose claims were settled and
paid using a valuation that included a condition deduction, Judge
Pechman holds. Rather than deny the motion, the Court revises the
definition to preserve what appears an otherwise appropriate class
definition. The Court, thus, revises the class definition of the
Condition Deduction Class.
In light of the Court's revised class definition, the Court finds
that the Plaintiff's claimed injuries are typical of both classes,
as he was paid a value based on an Autosource Report that applied
the negotiation discount and a condition deduction. The Court is
satisfied with the Plaintiff's typicality as to both classes.
The Court finds that the Plaintiff is an adequate class
representative committed to representing the classes' interests and
able to prosecute the action through counsel. The Court is also
satisfied that Mark Trivett of Badgley Mullins Turner, PLLC and
Daniel Whitmore of the Law Office of Daniel R. Whitmore, PS are
adequate class counsel who will fairly and adequately represent the
interest of the class.
The Plaintiff asks the Court to certify the class under the
predominance and superiority requirements of Rule 23(b)(3). The
Court assesses both issues, along with the question of damages.
Judge Pechman also holds that the Plaintiff has demonstrated the
predominance of classwide issues over individual ones. She adds,
among other things, that the Plaintiff has shown sufficient
superiority here.
Surreply
State Farm asks the Court to strike: (1) portions of the
Plaintiff's Reply, (2) Torelli's Supplemental Expert Report and
Declaration filed with the Reply, including attachments 1 through
4; (3) the Supplemental Declaration of Darrell M. Harber, including
attachments A through E; and (4) the Reply brief's inclusion of two
revised proposed class definitions. The Court grants in part and
denies in part the request.
First, State Farm asks the Court to strike the portions of
Plaintiff's Reply and Torelli's supplemental report that contain
new arguments and evidence about a 150-claim file sample that were
raised for the first time in reply. The Court agrees that these
arguments and evidence were improperly raised for the first time in
reply. The Court, thus, strikes the argument based on the sample,
and Torelli's materials submitted with the reply. The Court does
not, however, find it proper to strike Torelli's further statements
about calculating classwide damages using a potential, future
sample of class claims. These statements merely expand on his
initial report to respond to State Farm's opposition briefing and
is not improper.
Second, State Farm asks the Court to strike Darrell Harber's
supplemental declaration and exhibits and the Plaintiffs' reliance
on it in the Reply. The Court has not considered these arguments
and evidence and denies the request as moot.
Third, State Farm also asks the Court to strike Harber's and
Torelli's declarations/reports as improper supplemental reports
filed after the expert deadline. Given the Court's ruling above,
the Court denies this request as moot. And the Court denies as moot
the request to strike Harber's declaration and Torelli's
supplemental reports as to the 150-claim sample, and denies the
request to Strike Torelli's supplemental report as to classwide
damages based on a sampling methodology.
Lastly, State Farm asks the Court to strike the new class
definitions submitted with the Reply. The Court disagrees. The
Plaintiff made these proposed revisions to respond to various
critiques in State Farm's opposition. Given that the Court enjoys
wide discretion in defining the class, the Court found these
proposals to be permissible and helpful. State Farm was also given
an opportunity to consider the Court's proposed class definitions
and present its views during oral argument. The Court denies the
request to strike the class definitions.
Conclusion
The Plaintiff has provided sufficient evidence to establish by a
preponderance that class certification is appropriate and proper
under Rule 23(a) and Rule 23(b)(3). The Court certifies these
classes:
(1) Typical Negotiation Class:
All persons and entities within the State of Washington
that have made first-party property damage claims under
contracts of automobile insurance with State Farm that
provided for payment of the actual cash value of the
policyholder's vehicle (less any applicable deductible) in
the event of total loss, and (1) where policyholders
experienced a total loss of their insured vehicle covered
under such policy, (2) where such claims for total loss
were evaluated by State Farm using the Autosource
valuation system which took a deduction/adjustment for
typical negotiation, (3) where such claims were settled
and paid using the amount determined in the Autosource
valuation which took a deduction/adjustment for typical
negotiation; and (4) where such claims were paid by State
Farm to the policyholder or a lienholder without the
parties agreeing to use, and using, an alternative
appraisal process described in the policyholder's policy;
and
(2) Condition Deduction Class:
All persons and entities within the State of Washington
that have made first-party property damage claims under
contracts of automobile insurance with State Farm that
provided for payment of the actual cash value of the
policyholder's vehicle (less any applicable deductible) in
the event of total loss, and (1) where policyholders
experienced a total loss of their insured vehicle covered
under such policy, (2) where such claims for total loss
were evaluated by State Farm using the Autosource
valuation system which took deductions for the condition
of the loss vehicle, (3) where such claims were settled
and paid using the amount determined in the Autosource
valuation which took deductions for the condition of the
loss vehicle; and (4) where such claims were paid by State
Farm to the policyholder or a lienholder without the
parties agreeing to use, and using, an alternative
appraisal process described in the policyholder's policy.
The Court also appoints Faysal Jama as class representative and
Mark Trivett of Badgley Mullins Turner, PLLC, and Daniel Whitmore
of the Law Office of Daniel R. Whitmore, PS, as class counsel.
The Court also grants in part and denies in part State Farm's
surreply/motion to strike. The Court strikes in part the
supplemental report of Torelli and the Reply's citation to it
concerning the 150-claim sample. The Court does not strike the
additional information Torelli provides about calculating classwide
damages using a future sample. The Court denies as moot State
Farm's request to strike the supplemental Harber declaration and
the Reply's citation to it. The Court denies as moot the request to
strike Harber's declaration and Torelli's supplemental reports as
to the 150-claim sample, and denies the request to strike Torelli's
supplemental report as to classwide damages based on a sampling
methodology. And the Court denies State Farm's request to strike
the class definitions proposed in the Reply.
The Clerk of Court is ordered to provide copies of this order to
all counsel.
A full-text copy of the Court's Order dated July 1, 2021, is
available at https://tinyurl.com/47jk4tcn from Leagle.com.
TRAVELERS CASUALTY: Faces Class Suit Over Stock Price Manipulation
------------------------------------------------------------------
Law360 reports that North Carolina doormaker Jeld-Wen is suing its
insurers in federal court for $10 million in coverage for the
settlement and cost of an underlying investor class action that
accused the company of manipulating its stock price by concealing a
$76 million liability to a competitor. The company on July 13 filed
a cross-claim against Travelers Casualty and Surety Co. of America
and leveled another third-party suit against Old Republic Insurance
Co. for coverage of the class action. [GN]
TRIPOLIS ENTERPRISES: Fails to Pay Proper Wages, Gonzalez Alleges
-----------------------------------------------------------------
JESSICA GONZALEZ, individually and on behalf of all other similarly
situated, Plaintiff v. TRIPOLIS ENTERPRISES, INC. D/B/A THE PALACE
MEN'S CLUB; STEVE POULAKIS; and THEODORE DIMOPOULOS, Defendants,
Case No. 5:21-cv-00647 (W.D. Tex., July 8, 2021) seeks to recover
from the Defendants unpaid wages and overtime compensation,
interest, liquidated damages, attorneys' fees, and costs under the
Fair Labor Standards Act.
Plaintiff Gonzalez was employed by the Defendants as exotic
dancer.
TRIPOLIS ENTERPRISES, INC. owns and operates a strip Club named The
Palace Men's Club. [BN]
The Plaintiff is represented by:
Jarrett L. Ellzey, Esq.
Leigh Montgomery Texas, Esq.
ELLZEY & ASSOCIATES, PLLC
1105 Milford Street
Houston, TX 77066
Telephone: (713) 554-2377
Facsimile: (888) 276-3455
E-mail: jarrett@ellzeylaw.com
leigh@ellzeylaw.com
UNITED STATES: Claims v. Federal Defendants in Chang Case Dismissed
-------------------------------------------------------------------
Plaintiffs Weih Steve Chang, et al., filed an appeal from a court
ruling entered in the lawsuit styled WEIH STEVE CHANG and GORDON
GENE SMITH, Individually and as Taxpayers, and on behalf of a Class
of others similarly situated, Plaintiffs v. KATHARINE SULLIVAN
Office on Violence Against Women, et al., Defendants, Case No.
1:19-cv-01241-TSC, in the United States District Court for the
District of Columbia.
The lawsuit is brought over alleged violation of the civil rights.
On April 16, 2021, the Court granted the government's motion to
dismiss and allowed the Plaintiffs until August 24, 2021 to serve
any unnamed defendants. The Order further stated that the
Plaintiffs' failure to timely and satisfactory respond may result
in dismissal of this action without further notice.
Mr. Chang sought a review of the Order dated April 16, 2021. The
appellate case is captioned as Weih Chang, et al. v. Unnamed OVW
Grantees and VAWA, et al., Case No. 21-5145, filed on June 24,
2021, in the United States Court of Appeals for the District of
Columbia Circuit.
On June 29, 2021, Judge Tanya S. Chutkan entered a Memorandum and
Opinion dismissing claims against federal defendants with prejudice
and dismissing claims against any unnamed Defendants without
prejudice.
A Supplemental Record on Appeal was transmitted to the US Court of
Appeals on July 6, 2021.[BN]
Plaintiffs-Appellants Weih Steve Chang and Gordon Gene Smith,
Individually and as Taxpayers, and on behalf of a Class of others
similarly situated, are represented by:
Ryan Hintzen, Esq.
THE HINTZEN LAW FIRM
601 Pennsylvania Avenue, NW, Suite 900
Washington, DC 20004
Telephone: (202) 638-6988
E-mail: ryan@hintzenlf.com
Defendants-Appellees Unnamed OVW Grantees and Violence Against
Women Act (VAWA) Coodinators, Private and Governmental, in their
individual and official capacities, jointly and severally; and
Laura L. Rogers, Office on Violence Against Women, are represented
by:
R. Craig Lawrence, Esq.
U.S. ATTORNEY'S OFFICE
555 4th Street, NW
Washington, DC 20530
Telephone: (202) 252-2500
UPS SUPPLY: Arbitration Denial in Jones Wage & Hour Suit Affirmed
-----------------------------------------------------------------
In the lawsuit captioned SUE JONES, et al., Plaintiffs and
Respondents v. UPS SUPPLY CHAIN SOLUTIONS, INC., et al., Defendants
and Respondents, Case No. A160726 (Cal. App.), the Court of Appeals
of California, First District, Division Three, affirms the trial
court's denial of the Defendants' motion to compel arbitration.
Defendants UPS Supply Chain Solutions, Inc., and United Parcel
Service, Inc. (jointly SCS) appeal from the trial court's denial of
their motion to compel Plaintiffs Sue and Robert Jones to arbitrate
their various wage and hour violation claims. The trial court found
the Joneses' putative class action fell within a statutory
exemption from the Federal Arbitration Act (FAA) for transportation
workers engaged in interstate commerce.
Justice Rebecca Wiseman, writing for the Panel, holds that the
order is supported by substantial evidence and is legally sound, so
the Appellate Court affirms.
Background
SCS, an affiliated entity of United Parcel Service, Inc., maintains
a supply logistics network that includes some 300 warehouses
throughout the United States and Canada. As described by SCS
transportation division manager Jakline Seguerra, it offers a
"service parts logistics solution" that allows its customers to
store critical high tech and other products and replacement parts
in strategically located warehouses where they can be quickly
sourced. When a customer needs an item, SCS arranges for customer
pick-up or delivery from the warehouse by overnight carrier or
local courier service.
Arizona residents Sue and Robert Jones worked as delivery drivers
for SCS individually, as a team, and through Sue's company,
Efficient Delivery and Freight, LLC. SCS provided several vendor
identification numbers that they used to assign the Joneses work
and issue payments.
In 2014, Sue executed an arbitration agreement that extended to all
claims or controversies between the parties, including contract
claims, tort claims, and claims for violation of any federal,
state, or other governmental law. The agreement waived any right to
bring on behalf of persons other than myself, or to otherwise
participate with other persons in, any class, collective, or
representative action with respect to any claim covered by this
arbitration provision.
In 2019, the Joneses filed a putative class action against SCS. As
later amended, the complaint alleged violations of California wage
and hour laws, breach of contract, breach of the covenant of good
faith and fair dealing, and unfair business practices on behalf of
themselves and current and former SCS drivers, including those
misclassified as independent contractors.
SCS responded by moving to compel arbitration. It acknowledged that
the FAA exempts from arbitration employment contracts any class of
workers engaged in foreign or interstate commerce but asserted that
the Joneses did not qualify for the exemption because there is no
evidence establishing that they crossed into California to make
deliveries on behalf of SCS, as they allege in the first amended
complaint.
Based on Seguerra's declaration and supporting records, SCS
asserted it had no records indicating the Joneses made any pickups
or deliveries outside of Arizona during the relevant period and
that the absence of documentation established they made none. It
further argued the Joneses were not "engaged in interstate
commerce" for purposes of the section 1 exemption because (1) they
were contracted to provide only same-day local courier service; and
(2) SCS customers stored goods for potential sale in SCS
warehouses, which removed them from the flow of interstate
commerce.
In opposition, the Joneses asserted they qualified for the section
1 exemption because they made deliveries for SCS across state
lines.
The Joneses also relied on Nieto v. Fresno Beverage Co., Inc.
(2019) 33 Cal.App.5th 274 and similar cases to assert the exemption
applied whether or not they crossed state lines because the goods
they delivered in Arizona were within the flow of interstate
commerce.
Following a contested hearing, the trial court denied SCS's motion.
Its written order explains: The arbitration agreement expressly
provides that the parties' agreement is subject to the FAA.
In this case, the Plaintiffs made deliveries from Arizona to
multiple states, including California, Texas, and New Mexico.
Judge Wiseman notes that this evidence establishes that the
transportation worker exemption applies and the Plaintiffs are not
obliged to arbitrate. She opines that the Defendants do not
convincingly demonstrate that these declarations are perjurious and
unworthy of credence. In any event, a transportation worker does
not necessarily have to physically cross state lines in order to
engage in the movement of goods in interstate commerce.
SCS filed a motion for reconsideration, but when it then appealed
the underlying order before the motion was heard the court ordered
it off calendar because it no longer had jurisdiction over the
matter. The court's order, which was captioned as a denial, further
observed that "there is a substantial body of authority holding
that delivery workers who transport packages through to the
conclusion of their journeys in interstate and foreign commerce are
exempt from the FAA as transportation workers engaged in interstate
commerce, even if the drivers transport goods wholly within the
boundaries of a single state."
The appeal is timely.
Judge Wiseman holds that the trial court's determination the
section 1 exemption applied because the Joneses made deliveries
across state lines is supported by substantial evidence.
Like the trial court, the Appellate Court finds Nieto worthy of
note. The defendant there, VWB, imported beverages from out of
state to its warehouses in California and, shortly after that, to
its California customers. The Nieto court concluded the plaintiff,
one of VWB's local delivery drivers, was engaged in interstate
commerce because his deliveries, "although intrastate, were
essentially the last phase of a continuous journey of the
interstate commerce (i.e., beer and other beverages delivered to
VWB's warehouse from out-of-state) being transported until reaching
its destination(s) to VWB's customers." A number of other courts,
including this one, have recently reached the same conclusion on
similar facts.
In light of its conclusion that substantial evidence supports the
court's finding the Joneses made interstate deliveries for SCS, the
Appellate Court also does not address SCS's contention that the
trial court misconstrued the section 1 exemption to apply simply
because SCS engages in interstate commerce. For the same reason,
the Appellate Court need not resolve the parties' disputes about
the enforceability of the arbitration agreement as against either
or both of the Joneses.
Disposition
The order denying the motion to compel arbitration is affirmed.
Costs on appeal are awarded to the Joneses.
Petrou, Acting P.J. and Jackson, J., concurs.
A full-text copy of the Court's Opinion dated July 1, 2021, is
available at https://tinyurl.com/6ehytpd2 from Leagle.com.
URS MIDWEST: Crane Wins Initial Approval of $100K Class Settlement
------------------------------------------------------------------
The U.S. District Court for the Western District of Washington,
Seattle, grants the Plaintiff's unopposed motion for preliminary
approval of class action settlement in the lawsuit entitled KEVIN
J. CRANE, individually and on behalf of all others similarly
situated, Plaintiff v. URS MIDWEST, INC., a Delaware Corporation,
Defendant, Case No. 2:19-cv-01407-JLR-BAT (W.D. Wash.).
The Court grants preliminary approval of the Parties' Settlement on
the terms set forth in the Settlement Agreement filed with the
Motion and attached as Exhibit 1 to the Declaration of Craig J.
Ackermann in support of the Motion.
District Judge James L. Robart states that the terms set forth in
the Settlement Agreement appear to be fair, adequate, and
reasonable to the Class, and the Court preliminarily approves the
terms of the Settlement Agreement, including terms providing for:
a. A Gross Settlement Amount of $100,000;
b. Payment from the Gross Settlement Amount of:
(i) Class Counsel attorneys' fees, not to exceed 30% of
the Gross Settlement Amount ($30,000);
(ii) an award of costs to Class Counsel, not to exceed
$7,500;
(iii) a Class Representative Payment to the named
Plaintiff, not to exceed $5,000;
(iv) the Settlement Administrator's fees and expenses
($7,500); and
(v) all taxes associated with the Individual Settlement
Payments; and
c. Allocation of the Net Settlement Amount (the Gross
Settlement Amount less the deductions provided for above)
to Participating Class Members based on their pro-rata
share, and the calculation and payment of Individual
Settlement Payments as provided for in paragraph 38(b) of
the Settlement Agreement.
The Court grants the Parties' request for certification of the
following settlement Class under Rule 23(b)(3) of the Federal Rules
of Civil Procedure for the sole and limited purpose of implementing
the terms of the Settlement Agreement, subject to this Court's
final approval:
All individuals who (1) resided in Washington State,
(2) held Washington State Commercial Driver's Licenses,
(3) were employed by Defendant, (4) in the position of truck
driver or any other similar position, (5) and who drove at
least 1 route of at least 4 hours that was (6) paid, in
whole or in part, on a per-load piece-rate basis (or any
other piece-rate basis), (7) at any time from August 2, 2016
through April 22, 2021 (collectively, Class Members).
The Court preliminarily appoints the Plaintiff's counsel, Craig
Ackermann, Esq., and Brian W. Denlinger, Esq., of Ackermann &
Tilajef, P.C., and India Lin Bodien, Esq., of India Lin Bodien,
Attorney at Law, as Class Counsel for the settlement Class, and
Plaintiff Kevin J. Crane as Class Representative for the settlement
Class.
The Court approves, as to form and content, the Notice of Proposed
Class Action Settlement, in substantially the form attached to the
Settlement Agreement as Exhibit A. The Court approves the procedure
for Class Members to opt-out of, and to object to, the Settlement
as set forth in the Settlement Agreement and the Class Notice.
The Court confirms CPT Group, Inc., as the Settlement
Administrator.
The Court directs the mailing of the Class Notice by first class
mail to the Class Members in accordance with the schedule set forth
here. The Court finds the dates selected for the mailing and
distribution of the Notice meet the requirements of due process and
provide the best notice practicable under the circumstances, and
will constitute due and sufficient notice to all persons entitled
thereto.
The Court adopts the Parties' proposed dates and deadlines.
Class Counsel will file a memorandum of points and authorities in
support of their motion for approval of attorneys' fees and
litigation expenses no later than Oct. 12, 2021. Class Counsel will
file a memorandum of points and authorities in support of the final
approval of the Settlement Agreement no later than Oct. 12, 2021.
A Final Approval Hearing on the question of whether the proposed
Settlement, including the proposed attorneys' fees and cost
reimbursement to Class Counsel, the Class Representative Payment to
Plaintiff, allocation, and distribution of the Net Settlement
Amount to Participating Class Members, and the binding effect of
the releases set forth in the Settlement Agreement and Notice,
should be finally approved as fair, reasonable and adequate as to
the members of the Class and is scheduled for Nov. 2, 2021, at 9:00
a.m.
A full-text copy of the Court's Order dated July 1, 2021, is
available at https://tinyurl.com/pu6xzyub from Leagle.com.
VINO FARMS: Ibarra Files Suit in Cal. Super. Ct.
------------------------------------------------
A class action lawsuit has been filed against Vino Farms, Inc., et
al. The case is styled as Pedro Ibarra, individually, and on behalf
of all others similarly situated v. Vino Farms, Inc., a California
corporation, Vino Farms, LLC, a limited liability company, Case No.
STK-CV-UOE-2021-0006512 (Cal. Super. Ct., San Joaquin Cty., July
21, 2021).
The case type is stated as "Unlimited Civil Other Employment."
Vino Farms Inc. -- http://www.vinofarms.net-- is a human resources
company based out in Lodi, California.[BN]
The Plaintiff is represented by:
Kane Moon, Esq.
MOON & YANG, APC
1055 W 7th St Ste 1880
Los Angeles, CA 90017-2529
Phone: (213) 232-3128
Fax: (213) 232-3125
Email: kane.moon@moonyanglaw.com
VISIONS FEDERAL: Class Cert. Bid Filing Due March 30, 2022
----------------------------------------------------------
In the class action lawsuit captioned as Michelle Petrey v. Visions
Federal Credit Union, Case No. 3:20-cv-01147-MAD-ML (N.D.N.Y.), the
Hon. Judge Mae D'Agostino entered a uniform pretrial scheduling
order that:
1. The deadlines set in this scheduling order supersede the
deadlines set forth in fed. r. civ. p.26(a)(3) and are
firm and will not be extended, even by stipulation of the
parties, absent good cause.
2. VENUE MOTIONS are to be filed within 60 days of the date
of this Order following the procedures set forth in Local
Rule 7.1 (a)(2) and are to be made returnable before the
assigned Magistrate Judge.
3. JURISDICTION MOTIONS are to be filed within 60 days of the
date of this Order following the procedures set forth in
Local Rule 7.1 (a)(1) and are to be made returnable before
Judge D'Agostino.
4. JOINDER OF PARTIES: Any motion to join any person as a
party to this action shall be made on or before October
29, 2021.
5. AMENDMENT OF PLEADINGS: Any motion to amend any pleading
in this action shall be made on or before October 29,
2021.
6. STATUS REPORT: The parties are directed to file a status
report on or before September 28, 2021.
7. DISCOVERY: Rule 26(a)(1) Mandatory Disclosures are to be
exchanged by July 8, 2021.
8. CLASS CERTIFICATION MOTION are to be filed on or before
March 30, 2022.
A copy of the Court's order dated July 15, 2021 is available from
PacerMonitor.com at https://bit.ly/3eTq8tF at no extra charge.[CC]
VOLKSWAGEN GROUP: Settles Class Action Over Q7 Squeaking Brakes
---------------------------------------------------------------
David A. Wood, writing for CarComplaints.com, reports that Audi Q7
squeaking brakes caused a class action lawsuit that has reached the
settlement stage, although a judge must still grant final approval
to the settlement agreement.
Plaintiffs Valeria Mercado and Andrea Kristyanne Holmes claim the
Audi Q7 squeaking front brakes are distracting to Audi drivers and
others on the roads.
The initial class action lawsuit included 2015-2018 Q7 SUVs, but
the settlement includes only 2017 and 2018 SUVs.
Although Audi agreed to settle the lawsuit to put an end to it
after the class action was amended and refiled five times, the
automaker says there is nothing wrong with the Audi Q7 vehicles.
Audi says the owner's manual clearly says brake noise can occur for
various reasons, and the lawsuit never identified any defective
brake components on the vehicles.
Audi also told the judge the original plaintiff never said the
brakes failed to slow down the vehicle, and the automaker also
argues brake "noise" doesn't equal a brake "defect."
Audi Brakes Class Action Lawsuit Settlement
The Audi Q7 squeaking brakes class action lawsuit settlement
includes:
"All persons and entities who purchased or leased any model year
2017 or 2018 Audi Q7 vehicle that was imported and distributed by
VWGoA for sale or lease in the United States or Puerto Rico."
Warranty Extension for Current Owners and Lessees
According to the class action lawsuit, the Audi Q7 vehicle comes
with a new vehicle limited warranty which says Audi will cover any
repairs to correct a manufacturer's defect in material or
workmanship for 4 years or 50,000 miles, whichever occurs first.
As part of the lawsuit settlement, Audi Q7 customers will receive a
"warranty extension," but it's questionable how many customers will
benefit from the so-called "extension."
The original warranty is for 4 years or 50,000 miles, and the
settlement says:
"Effective on the Notice Date, Volkswagen Group of America, Inc.
will extend its New Vehicle Limited Warranties applicable to the
Class Vehicles to cover one (1) repair of a diagnosed condition of
squealing of the front brakes, by an authorized Audi dealer, during
a period of four years or 48,000 miles (whichever occurs first)
from the In-Service Date of the Class Vehicle (hereinafter, the
'Extended Warranty')."
If a vehicle was first put into use in 2017, the "extended
warranty" may have already expired.
The "extended warranty repair" will consist of replacement of the
front brake pads and installation of one new lower spring in each
caliper of the front brake so there are two springs per caliper.
However, this is the same repair offered by VW in previous
technical service bulletins 2050735 (2017 Audi Q7) and 2050737
(2018 Audi Q7).
It's also possible an Audi Q7 won't qualify for the repair:
"Squealing of the front brakes resulting from misuse, abuse,
alteration or modification, a collision or crash, vandalism, lack
of or improper maintenance, and/or damage from an environmental or
outside source, shall be excluded and not covered." -- Audi Q7
brakes settlement agreement
Because it's possible the settlement "extended warranty" may have
already expired for some customers before the settlement is even
granted final approval by a judge, the settlement says:
"If the extended warranty has expired by its terms with respect to
a given Class Member, he or she nonetheless can obtain its value
through the Settlement's reimbursement component."
Reimbursement For Out-of-Pocket Expenses
Current or former owners/lessees of 2017-2018 Audi Q7 vehicles who
paid eligible out-of-pocket expenses may be able to receive
reimbursement for "covered repairs" (squealing front brakes) of a
vehicle prior to the class action notice date.
The repairs must have been performed within four years or 48,000
miles of when the vehicle first went into service on the roads.
However, if a customer paid for multiple repairs, the settlement
provides reimbursement for only one repair for squeaky front
brakes.
If the repair was performed by an Audi dealer, a customer may
receive the full amount paid for parts, labor and taxes.
If the repair was performed by a third-party facility, a customer
may qualify for 50% reimbursement for a covered repaired.
"Under the Settlement, certain costs, including but not limited to
costs incurred for any squealing of the front brakes caused by
modification of/to brake components, misuse, abuse, alteration or
modification, a collision or crash, lack of or improper
maintenance, and/or damage from an environmental or other outside
source are excluded from reimbursement."
A customer will need to submit a claim form by U.S. mail along with
documents showing the brake repair was performed within four years
or 48,000 miles of when the vehicle first went into service.
Attorneys for the plaintiffs are expected to receive $1,960,000 for
fees, costs and expenses.
The Audi Q7 squeaking brakes class action lawsuit was filed in the
U.S. District Court for the Central District of California:
Mercado, et al. v. Volkswagen Group of America, Inc. d/b/a Audi of
America, Inc.
The plaintiffs are represented by Ahdoot & Wolfson, P.C., Greg
Coleman Law, and Whitfield, Bryson & Mason. [GN]
WALMART INC: Joint Bid for Amendment of Scheduling Order Tossed
---------------------------------------------------------------
In the class action lawsuit captioned as DEARL POWELL, CHRISTINA
GAST, ELIJHA GONZALEZ, as individuals and on behalf of all others
similarly situated, v. WALMART, INC., et al., Case No.
3:20-cv-02412-BEN-LL (S.D. Cal.), the Hon. Judge Linda Lopez
entered an order denying joint motion for amendment of scheduling
order.
The Court said, "While the parties have diligently sought to extend
a deadline that will not occur for another three months, the
existence of a discovery dispute is not, by itself, good cause for
extending the deadline by four months at this stage in the
litigation. Accordingly, the parties' Joint Motion is denied
without prejudice. The parties, individually or jointly, may
re-file a motion to continue the class certification motion
deadline after resolution of the anticipated motion to compel. The
parties are advised, however, to include specific reasons why the
currently set deadlines cannot be met in any subsequent motion to
continue dates in the Scheduling Order."
A copy of the Court's order dated July 15, 2021 is available from
PacerMonitor.com at https://bit.ly/3y5gCex at no extra charge.[CC]
WELLPET LLC: Berwind's Bid to Dismiss Loduca's Claims Granted
-------------------------------------------------------------
The U.S. District Court for the Eastern District of Pennsylvania
grants a Defendant's motion to dismiss in the lawsuit entitled RITA
SCHMIDT LODUCA, DONNA FREEMAN, and LYNN WESLEY, Individually On
behalf of all others Similarly situated, Plaintiffs v. WELLPET LLC,
et al., Defendants, Case No. 21-CV-0954 (E.D. Pa.).
The proposed class action is presently before the Court on Motion
of Defendant Berwind Corporation to Dismiss the claims against it.
For reasons outlined in this Memorandum and Order, the Motion will
be granted with leave to the Plaintiffs to file an amended pleading
as to the Moving Defendant.
Plaintiffs Rita Schmidt Loduca, Donna Freeman and Lynn Wesley are
all residents of the Commonwealth of Pennsylvania, who allege that
they purchased various pet food products manufactured and sold by
Defendant WellPet, LLC--specifically its Wellness CORE, Wellness
Complete Health, and Holistic Select dry dog foods. The gist of the
complaint, which the Plaintiffs purport to bring "individually and
on behalf of all others similarly situated," is that the Defendants
misrepresented the appropriate daily feeding amounts for dogs by
omitting that the daily feeding instructions are only appropriate
for the "highest demand activity level and breed," causing the
Plaintiffs and members of the class to purchase more of the
Defendants' dog food products per day than was otherwise necessary
and causing their canines to eat excess and unhealthy amounts of
food.
The Plaintiffs further aver that as a result of having been misled
into purchasing more dog food than was "otherwise necessary," they
"expended additional unnecessary financial sums and experienced a
direct financial detriment." The Plaintiffs claim that these
misrepresentations were "fraudulent, deceptive, misleading, unfair
and/or false," and that Defendant WellPet LLC and its respective
parent organizations, Defendant Berwind Corporation, profited from
them.
The Plaintiffs, therefore, seek to recover damages and obtain
injunctive relief from the Defendants under Pennsylvania state law
theories for breach of the implied warranty of merchantability,
unjust enrichment, negligent misrepresentation, fraud, civil
conspiracy, and for violation of the Pennsylvania Unfair Trade
Practices and Consumer Protection Law.
By this Motion, Defendant Berwind Corporation moves to dismiss the
Plaintiffs' claims against it pursuant to Fed. R. Civ. P.
12(b)(6).
Discussion
In its motion to dismiss, Berwind Corporation asserts that the
Plaintiffs' Complaint is devoid of any factual allegations as to
specific conduct by it that could give rise to its liability, but
instead merely labels Berwind as the alter ego of WellPet.
District Judge J. Curtis Joyner notes that in this case, the
Defendant quite correctly notes that the Complaint avers only that
"upon information and belief, Defendant WellPet LLC was a
wholly-owned subsidiary of Berwind Corporation" and that "Berwind
Corporation was the parent organization and alter ego to WellPet
LLC from approximately 2008 to 2020" when Berwind sold WellPet to
Clearlake Capital Group, L.P.
The only other averment of actionable wrongdoing against the Moving
Defendant is found in paragraph 48 of the Complaint whereby the
Plaintiffs also allege that "Defendants Berwind Corporation and
Clearlake Capital Group. L.P., by and through their wholly-owned
subsidiary, Defendant WellPet LLC, became one of the leading
vendors/manufacturers that misrepresented and omitted ... the
proper daily feeding directions for canine pets through the
labeling on its dry dog food brands."
In all other respects, the Complaint simply charges "the
Defendants" with making various misleading, deceptive, unfair,
false, and/or fraudulent statements, advertisements, and/or
misrepresentations about the proper amounts of WellPet dry dog food
products to feed dogs. In the absence of any factual averments to
suggest that the "corporate veil" should be pierced, that Berwind
somehow manifested that WellPet should act for it, that WellPet
accepted that undertaking and/or that the parties understood that
Berwind was to be in control such that Berwind may, therefore, be
held liable for the undertakings of its subsidiary, the Court
concludes that dismissal of the Plaintiffs' complaint against
Berwind is appropriate.
Given that the Court cannot definitively find that amendment would
be either inequitable or futile, leave to amend will be granted.
A full-text copy of the Court's Memorandum and Order dated July 1,
2021, is available at https://tinyurl.com/s9sj5tkw from
Leagle.com.
[*] Regulator Seeks Review of Risk Frameworks After Class Action
----------------------------------------------------------------
Riya Sharma, writing for Reuters, reports that Australia's
prudential regulator on July 19 directed general insurers to review
their risk management frameworks after a spate of claims over
COVID-19-related business interruptions.
Many insurers were exposed to such claims through policy wordings
that had not kept up to date with changing legislation, the
Australian Prudential Regulation Authority (APRA) said.
"The resultant legal uncertainty, and significant financial
exposure for insurers, has raised concerns about the strength of
insurers' risk management frameworks," the regulator said in a
statement.
The regulator's directive also came after a class action lawsuit
against Australia's largest listed insurer, QBE Insurance (QBE.AX),
for allegedly denying cover to policy holders for losses from
business interruptions.
APRA has set a Nov. 30 deadline for completing and submitting the
self-assessments. [GN]
*********
S U B S C R I P T I O N I N F O R M A T I O N
Class Action Reporter is a daily newsletter, co-published by
Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania,
USA, and Beard Group, Inc., Washington, D.C., USA. Rousel Elaine T.
Fernandez, Joy A. Agravante, Psyche A. Castillon, Julie Anne L.
Toledo, Christopher G. Patalinghug, and Peter A. Chapman, Editors.
Copyright 2021. All rights reserved. ISSN 1525-2272.
This material is copyrighted and any commercial use, resale or
publication in any form (including e-mail forwarding, electronic
re-mailing and photocopying) is strictly prohibited without prior
written permission of the publishers.
Information contained herein is obtained from sources believed to
be reliable, but is not guaranteed.
The CAR subscription rate is $775 for six months delivered via
e-mail. Additional e-mail subscriptions for members of the same
firm for the term of the initial subscription or balance thereof
are $25 each. For subscription information, contact
Peter A. Chapman at 215-945-7000.
*** End of Transmission ***