/raid1/www/Hosts/bankrupt/CAR_Public/210820.mbx
C L A S S A C T I O N R E P O R T E R
Friday, August 20, 2021, Vol. 23, No. 161
Headlines
22ND CENTURY: Oral Argument on Noto Appeal Scheduled for Sept. 2
8X8 INC: Joint Mediation in Rivas PAGA Suit Set for September
A&L HOME: 2 FLSA Collectives Conditionally Certified in Holder Suit
ABC FINANCIAL: Lesser Sues Over Deceptive Collection Letters
ACADIA PHARMA: Appointment of Lead Counsel and Plaintiff Pending
ACADIA PHARMA: Hearing on Bid to Nix Nuplazid Suit Set for Oct. 1
ADT INC: Preddy Class Action Stayed
ALL MY SONS: Summary Judgment Bid in Grogan Suit Allowed in Part
ALLBIRDS INC: Claims That False Advertising Lawsuit Lacks Merit
ANTARES PHARMA: Dismissal of Smith Class Action Under Appeal
ASCENT RESOURCES-UTICA: Class & Subclasses Certified in Eaton Suit
ATHENEX INC: Oral Paclitaxel Related Putative Class Suit Underway
BALTIMORE, MD: Class Action Mulled if Schools CEO Not Removed
BANK OF NEW YORK: Investor Suit Over Stanford Ponzi Scheme Ongoing
BARINGS BDC: Consolidated Securities Class Suit in NY Concluded
BECTON DICKINSON: Bid to Junk Industriens Class Suit Pending
BECTON DICKINSON: Defends 23,590 Hernia Product Liability Claims
BECTON DICKINSON: Defends 360 Filter Product Liability Claims
BECTON DICKINSON: Defends 405 Women's Health Product Claims
BISHOP OF CHARLESTON: Bid to Compel in Tuition Suit Partly Granted
BLACKROCK INC: Final Settlement Approval Hearing Set for Oct. 21
BLUECITY HOLDINGS: Vincent Wong Law Reminds of Sept. 17 Deadline
BLUEGREEN VACATIONS: Bid for Class Cert. in Johansen Suit Pending
BLUEGREEN VACATIONS: Class Certification Bid in Landon Pending
BLUEGREEN VACATIONS: Discovery in Boyd Putative Class Suit Ongoing
BLUEGREEN VACATIONS: Wijesinha Purported Class Suit Underway
BOCHASANWASI AKSHAR: Sued for Allegedly Underpaying Workers
BOK FINANCIAL: Bid to Nix 401k Plan Related Suit vs. Unit Pending
BOK FINANCIAL: Bondholders' Putative Class Action Remains Stayed
BOK FINANCIAL: Dismissal of Extended Overdraft Fees Suit Appealed
BOWL AMERICA: Faces Zucker Suit Over Inadequate Merger
BP EXPLORATION: Court Enters Summary Judgment in Bucano BELO Suit
CAMPING WORLD: Seeks Initial Approval of Woodings Settlement
CANADA: Sued Over Abuse of Indigenous Patients at TB Hospitals
CENTERPOINT ENERGY: Court Set to Rule on Appeal Over Suit Dismissal
CHARLOTTE, NC: Bid for Judgment on Pleadings in Hensley Suit OK'd
CITIGROUP INC: San Diego Putative Class Action Underway
COINBASE GLOBAL: Faces Klein Suit Over Drop in Share Price
CORNERSTONE BUILDING: Continues to Defend Voigt Class Suit
COTY INC: S.D. New York Dismisses Garrett-Evans' Amended Complaint
COUSINS GROCERY: Fails to Pay Wages, Vazquez Suit Claims
CRICKET WIRELESS: Nationwide Class Certified in Postpichal Suit
CVS HEALTH: Consolidated ERISA Related Suit Underway
CVS HEALTH: Drug Pricing Related Suits Underway
CVS HEALTH: Labourers' Pension Fund Suit Concluded
CVS HEALTH: Service Provider Related Suit Underway
DETROIT, MI: Landlords Sue Court, Chief Judge Over Eviction Ban
DIDI GLOBAL: Wolf Popper Reminds of September 7 Deadline
EDGEWELL PERSONAL: Chabla Sues Over Mislabeled Sunscreen Products
ELANCO ANIMAL: Pomerantz Law Firm Investigates Securities Claims
ENERGY TRANSFER: Dismissal of Regency Merger Lawsuit Appealed
EQUITABLE HOLDINGS: O'Donnell Appeals Dismissal of Class Suit
EQUITABLE HOLDINGS: Settlement Talks with Brach Plaintiffs Ongoing
EQUITY BANCSHARES: Bid to Junk Missouri Putative Class Suit Pending
ESSA BANCORP: Discovery Ongoing in Sherman Act Claim
ESSA BANCORP: Discovery Ongoing in Suit Against Subsidiary
EVOLUS INC: Consolidated Jeuveau Related Class Suit Underway
FIGURE 8: Court Certifies Class of Employees in Daniell FLSA Suit
FLUIDIGM CORP: Bid to Dismiss Kong Suit Granted With Leave to Amend
FMC CORPORATION: Deal in Livent IPO Related Suit Granted Final OK
GENERAL ELECTRIC: New York Court Narrows Claims in Data Breach Suit
GENERAL MOTORS: Chism Sues Over Defective Airbag Control Units
GLOBAL CONTACT: Court Dismisses NYLL Claim From Thompson Class Suit
GOLDMAN SACHS: Dismissal of XP IPO-Related Suit Under Appeal
GOLDMAN SACHS: Loses Appeal in Alnylam-Related Suit
GOLDMAN SACHS: Root IPO Related Suit Voluntarily Dismissed
GOLDMAN SACHS: Settlement Reached in Altice USA IPO-Related Suit
GOLDMAN SACHS: Suit Over 1MDB Scandal Underway
HARRIMAN UTILITY: Discovery in Hackworth Suit Stayed for 30 Days
HARVARD BUSINESS: Faces Hamilton Suit Over Information Disclosure
HEARING HELP: Class Settlement in Hoffman Suit Has Prelim. Approval
HONOLULU, HI: First Responders File Suit Over Vaccine Requirements
HYATT HOTELS: Putative Class Suit in Illinois Dismissed
ILLINOIS: Judge Notes Violations to Transgender Inmates' Rights
IVERIC BIO: Settlement Reached in New York Consolidated Class Suit
JPMORGAN CHASE: Bid to Vacate July 29 Order in Dill Suit Denied
KFORCE INC: Final Settlement Approval Hearing Set for Sept. 30
KFORCE INC: Parties in Cook Suit Files Stipulation for Dismissal
KFORCE INC: Smith Purported Class Suit Dismissed with Prejudice
KONINKLIJKE PHILIPS: Faces Anthony Suit Over Defective Ventilators
KRAFT HEINZ: Osborne Suit v. Employee Benefits Board Underway
KRAFT HEINZ: Union Asset Management Class Suit Underway
KWONG MING: Faces Almendares Suit Over Failure to Pay Wages
LA ESQUINITA: Fails to Pay Overtime Wages, Reyes Suit Claims
LENDINGCLUB CORP: Continues to Defend Erceg Putative Class Suit
LENDINGCLUB CORP: Oral Arguments in Veal Appeal Set for Sept. 2
LENDINGCLUB CORP: Trial in Bradford Suit Set for September 2022
LIBERTY LATIN: Suits Against VTR Finance Consolidated
LIVE OAK BANCSHARES: Faces McAlear Purported Class Suit
LUMBER LIQUIDATORS: Steele Class Action Ongoing in Canada
LUMBER LIQUIDATORS: Visnack Purported Class Suit Underway
LUMEN TECHNOLOGIES: Dismissal of Houser Putative Suit Under Appeal
LUMEN TECHNOLOGIES: Settlement in Sales Practices Suit Approved
MDL 2836: Class Certification Order in Zetia Antitrust Suit Vacated
MGP INGREDIENTS: Bid to Nix Suit Over Sales of Aged Whiskey Pending
MICHIGAN: District Court Dismisses Catlett Class Suit v. MDOC
MIDLAND FUNDING: Can Compel Arbitration in Warner NCCAA-FDCPA Suit
MIDLAND FUNDING: Md. App. Affirms Judgments in Cain and Gambrell
MISTRAS GROUP: $2.3 Million Settlement Reached in Price Suit
MOMO INC: Court Awards Attorneys' Fees & $48K in Costs in Rupp Suit
MOMO INC: New York Court Enters Final Judgment in Rupp Class Suit
MYRIAD GENETICS: Loses Bid to Nix Securities Class Suit in Utah
NCAA: Faces Bryson Suit Over Football Athletes' Injuries
NETFLIX INC: Longport Joins Class Action Over Franchise Fees
NEW JERSEY: Settlement Reached in Prison Special Education Suit
NEWCOMB OIL: Sixth Cir. Affirms Denial of Bid to Stay Southard Suit
NORTHLAND INSURANCE: Court Grants in Part Bid to Stay MSPRC Suit
OCUGEN INC: Gross Law Firm Announces Shareholder Class Action
ODONATE THERAPEUTICS: Bid to Toss 2nd Amended Kendall Suit Denied
ONFIDO INC: Can't Arbitrate OfferUp App BIPA Violation Claim
OWLET BABY: District of Utah Dismisses Ruiz Suit With Prejudice
PBF HOLDING: Goldstein Class Action Still Ongoing
RE/MAX HOLDINGS: Faces Sunderland Putative Class Suit in Canada
REALOGY GROUP: Discovery in Sitzer Putative Class Suit Ongoing
RNC INDUSTRIES: Hernandez Seeks Carpenters' Unpaid Overtime Wages
SAGINAW COUNTY, MI: Emergency Bid to Lift Stay in Fox Suit Denied
SAN DIEGO, CA: County Jail Visits Halted, Class Action Pending
SANMINA CORP: Faces Espinoza Class Suit in California
SANMINA CORP: Final Settlement Approval Hearing Set for Oct. 27
STURM RUGER: Primus Group Suit Closed
TANDEM DIABETES: Continues to Defend Deluna Consolidated Class Suit
TEXAS: Hearing Set in Lawsuit Abortion Providers' Class Action
UNITED STATES: Messiah University Students File Title IX Lawsuit
UNUM GROUP: 6th Cir. Affirms Dismissal of TN Securities Class Suit
WALMART STORES: Lisowski Consumer Suit Dismissed With Prejudice
WELLS FARGO BANK: Hart Sues Over Improper Mortgage Servicing
WESTPAC BANKING: Federal Court Backs Insurance Class Settlement
YELLOW CORP: Settlement in Lewis Suit Awaits Final Approval
[*] DLA Piper Discusses Australia's Continuous Disclosure Regime
Asbestos Litigation
ASBESTOS UPDATE: Allstate Corp Paid $29MM Asbestos Related Losses
ASBESTOS UPDATE: AMETEK Defends Asbestos-Related Lawsuits
ASBESTOS UPDATE: ArcelorMittal Has 324 Pending Exposure Claims
ASBESTOS UPDATE: Ashland Global Faces Personal Injury Claims
ASBESTOS UPDATE: Bausch Health Cos. Faces Mesothelioma Lawsuit
ASBESTOS UPDATE: Carrier Global Defends Personal Injury Lawsuits
ASBESTOS UPDATE: CECO's Subsidiary Still Defends PI Lawsuits
ASBESTOS UPDATE: Chemours Co. Assumes 1,000 PI Suits at June 30
ASBESTOS UPDATE: Colgate-Palmolive Faces 151 Cases at June 30
ASBESTOS UPDATE: Columbus McKinnon Has $5.4MM Estimated Liability
ASBESTOS UPDATE: Crane Co. Has 29,788 Pending Claims at June 30
ASBESTOS UPDATE: Curtiss-Wright Faces Asbestos Exposure Claims
ASBESTOS UPDATE: Diamond Offshore Faces Punitive Damages Claims
ASBESTOS UPDATE: Exelon Corp. Has $85MM Liabilities at June 30
ASBESTOS UPDATE: Garrett Motion Agrees to Settle Honeywell's Claims
ASBESTOS UPDATE: Harsco Corp Has 17,200 Pending Claims at June 30
ASBESTOS UPDATE: Ingersoll Rand Has $127.5MM Litigation Reserve
ASBESTOS UPDATE: International Paper Records $112MM Claims
ASBESTOS UPDATE: Johnson Controls Still Defends PI Lawsuits
ASBESTOS UPDATE: Manitex Intl. Defends Product Liability Suits
ASBESTOS UPDATE: Meritor Defends 600 Pending Active Claims
ASBESTOS UPDATE: MRC Global Faces Lawsuits Involving 1,152 Claims
ASBESTOS UPDATE: MSA LLC Faces 1,610 Cumulative Trauma Lawsuits
ASBESTOS UPDATE: OfficeMax Retains Liability for Asbestos Claims
ASBESTOS UPDATE: Park-Ohio Holdings Defends 125 PI Cases
ASBESTOS UPDATE: Rogers Corp. Defends Multiple PI Lawsuits
ASBESTOS UPDATE: Transocean Ltd.'s Subsidiary Faces 281 PI Suits
ASBESTOS UPDATE: TriMas Defends 374 Pending PI Cases at June 30
ASBESTOS UPDATE: U.S. Steel Defends 935 Active Cases at June 30
ASBESTOS UPDATE: Univar Solutions Faces 227 PI Cases at June 30
ASBESTOS UPDATE: W.W. Grainger Still Defends PI Claims
ASBESTOS UPDATE: Xylem Inc. Could Face Product Liability Claims
*********
22ND CENTURY: Oral Argument on Noto Appeal Scheduled for Sept. 2
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22nd Century Group, Inc. said in its Form 10-Q Report filed with
the Securities and Exchange Commission on August 5, 2021, for the
quarterly period ended June 30, 2021, that the Second Circuit has
scheduled an oral argument on the appeal in the class action suit
headed by Joseph Noto, Garden State Tire Corp, and Stephens Johnson
for September 2, 2021.
On January 21, 2019, Matthew Jackson Bull, a resident of Denver,
Colorado, filed a Complaint against the Company, the Company's then
Chief Executive Officer, Henry Sicignano III, and the Company's
then Chief Financial Officer, John T. Brodfuehrer, in the United
States District Court for the Eastern District of New York
entitled: Matthew Bull, Individually and on behalf of all others
similarly situated, v. 22nd Century Group, Inc., Henry Sicignano
III, and John T. Brodfuehrer, Case No. 1:19 cv 00409.
On January 29, 2019, Ian M. Fitch, a resident of Essex County
Massachusetts, filed a Complaint against the Company, the Company's
then Chief Executive Officer, Henry Sicignano III, and the
Company's then Chief Financial Officer, John T. Brodfuehrer, in
the United States District Court for the Eastern District of New
York entitled: Ian Fitch, Individually and on behalf of all others
similarly situated, v. 22nd Century Group, Inc., Henry Sicignano
III, and John T. Brodfuehrer, Case No. 2:19 cv 00553.
On May 28, 2019, the plaintiff in the Fitch case voluntarily
dismissed that action. On August 1, 2019, the Court in the Bull
case issued an order designating Joseph Noto, Garden State Tire
Corp, and Stephens Johnson as lead plaintiffs.
On September 16, 2019, pursuant to a joint motion by the parties,
the Court in the Bull case transferred the class action to federal
district court in the Western District of New York, where it
remains pending as Case No. 1:19-cv-01285.
Plaintiffs in the Bull case filed an Amended Complaint on November
19, 2019 that alleges three counts: Count I sues the Company and
Messrs. Sicignano and Brodfuehrer and alleges that the Company's
quarterly and annual reports, SEC filings, press releases and other
public statements and documents contained false statements in
violation of Section 10(b) of the Securities Exchange Act and Rule
10b-5; Count II sues Messrs. Sicignano and Brodfuehrer pursuant to
Section 10(b) of the Securities Exchange Act and Rule 10b5(a) and
(c); and Count III sues Messrs. Sicignano and Brodfuehrer for the
allegedly false statements pursuant to Section 20(a) of the
Securities Exchange Act. The Amended Complaint seeks to certify a
class, and unspecified compensatory and punitive damages, and
attorney's fees and costs.
On January 29, 2020, the Company and Messrs. Sicignano and
Brodfuehrer filed a Motion to Dismiss the Amended Complaint. On
July 31, 2020, the Court heard oral arguments on the motion to
dismiss.
On January 14, 2021, the Court granted motion, dismissing all
claims with prejudice. The Plaintiffs filed a notice of appeal on
February 12, 2021 to the Second Circuit Court of Appeals.
The Second Circuit has granted an expedited briefing schedule and
Plaintiff's/Appellant's was filed on April 12, 2021 and the
Company's was filed on May 17, 2021. The Second Circuit has
scheduled an oral argument for September 2, 2021.
22nd Century said, "We believe that the claims are frivolous,
meritless and that the Company and Messrs. Sicignano and
Brodfuehrer have substantial legal and factual defenses to the
claims. We intend to vigorously defend the Company and Messrs.
Sicignano and Brodfuehrer against such claims."
22nd Century Group, Inc., a plant biotechnology company, provides
technology that allows increasing or decreasing the level of
nicotine and other nicotine alkaloids in tobacco plants, and
cannabinoids in hemp/cannabis plants through genetic engineering
and plant breeding. 22nd Century Group, Inc. was founded in 1998
and is headquartered in Williamsville, New York.
8X8 INC: Joint Mediation in Rivas PAGA Suit Set for September
-------------------------------------------------------------
8X8 Inc. said in its Form 10-Q Report filed with the Securities and
Exchange Commission on August 5, 2021, for the quarterly period
ended June 30, 2021, that the joint mediation in the class action
and the Private Attorney General Act (PAGA) lawsuit complaint
initiated by Denise Rivas, is scheduled on September 2021.
On September 21, 2020, the Company received a copy of a letter
filed by a former employee, Plaintiff Denise Rivas, with the
California Labor and Workforce Development Agency ("LWDA")
providing notice of the Plaintiff's intent to bring a Private
Attorney General Act ("PAGA") claim, on behalf of the Company's
non-exempt employees based in California, for alleged California
wage and hour practices violations.
On September 25, 2020, the Plaintiff filed a separate class action
complaint in the Santa Clara County Superior Court against the
Company in which she alleges 10 causes of action, on behalf of
herself and all of the Company's non-exempt employees based in
California for the last four years, related to violations of
California state wage and hour practices and the federal Fair
Credit Reporting Act. The Class Complaint was served on the Company
on September 29, 2020.
On October 28, 2020, the Company filed a general denial of all
claims and asserted various affirmative defenses.
On October 29, 2020, the Company removed the matter to Federal
Court. On December 1, 2020, Plaintiff filed a companion PAGA
lawsuit complaint ("PAGA Complaint") in Santa Clara County Superior
Court against the Company, in which she alleges 6 violations of
California state wage and hour practices for all of the Company's
current and former non-exempt employees based in California from
September 16, 2019 to the present. The PAGA Complaint was served on
the Company on December 11, 2020.
On January 26, 2021, the Company filed a general denial of all
claims and asserted various affirmative defenses to the PAGA
Complaint.
Both actions are scheduled for a joint mediation in September 2021,
and discovery is stayed in both actions pending completion of the
mediation.
Based in Santa Clara, Calif., 8X8 Inc. offers software, services,
and equipment that enable voice and video communication over
Internet Protocol networks. Through its Packet8 software suite and
related services, it allows subscribers to make phone calls and
perform other broadband networking functions using VoIP
technology.
A&L HOME: 2 FLSA Collectives Conditionally Certified in Holder Suit
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In the case, LARRY HOLDER, et al., on behalf of themselves and
others similarly situated, Plaintiffs v. A&L HOME CARE AND TRAINING
CENTER, LLC, et al., Defendants, Case No. 1:20-cv-757 (S.D. Ohio),
Judge Matthew W. McFarland of the U.S. District Court for the
Southern District of Ohio, Western Division, Cincinnati, grants in
part and denies in part the Plaintiffs' motion to conditionally
certify collective actions pursuant to the Fair Labor Standards
Act.
Defendant A&L employs home health aides who provide home health
care for the company's clients. The named Plaintiffs are former A&L
home health aides. Home health aides are paid by the hour.
The Plaintiffs allege that they regularly worked more than 40 hours
in a single workweek, but were not paid the correct overtime rate
of time-and-a-half. They received a shift differential rate -- a
sort of hourly premium -- for hours spent working during the early
mornings, late evenings, and weekends. But A&L did not include
their shift differential rates in the calculation of their overtime
worked in excess of 40 hours per week. The Plaintiffs also claim
that they were regularly required to travel between multiple
clients' homes during a single shift. Instead of receiving credit
for their time spent driving, however, they received a flat rate of
50.25 per mile.
These experiences form the bases for the Plaintiffs request for the
court to conditionally certify three collectives ("Putative
Collective Members"):
a. FLSA Travel Time Collective: All current and former hourly
paid employees of Defendants who, between Feb. 11, 2018 and [the
date Defendants changed their travel policy to include hourly
payment for travel time], worked in excess of 40 hours per workweek
and were required to travel between clients' homes.
b. FLSA Shift Differential Collective: All current and former
hourly paid employees of Defendants who, between Feb. 11, 2018 and
the present, worked in excess of 40 hours per workweek and received
shift differential pay.
c. FLSA Minimum Wage Collective: All current and former hourly
paid employees of Defendants who, between Feb. 11, 2018 and [the
date Defendants changed their travel policy to include hourly
payment for travel time], were required to travel between client's
homes using their own vehicle.
In addition, the Plaintiffs ask the Court to approve their proposed
court-supervised notice and reminder notice to the Putative
Collective Members. They request that the Court orders the
Defendants to identify Putative Collective Members within 14 days
of entering this Order. Lastly, the Plaintiffs request an opt-in
period of 60 days.
Analysis
A. Conditional certification
When an employer is alleged to have violated the FLSA, Section
216(b) of that statute permits employees to sue on their own behalf
as well as on behalf of other "similarly situated" employees.
The Plaintiffs propose three collectives. For support, they offer
two rounds of declarations -- one set of declarations with their
motion, and another set with their reply brief.
1. Travel time collective
The travel time collective includes employees who, between the
relevant dates, worked more than 40 hours per week and were
required to travel between clients' homes. The Defendants insist
that the Plaintiffs' failure to submit declarations from potential
plaintiffs should weigh heavily against conditional certification.
They also argue that the Plaintiffs' declarations do not speak to
any experiences of any A&L employees except for themselves.
Judge McFarland grants in part the Plaintiffs' motion to
conditionally certify the travel time collective. Taken together,
he finds that the facts support the inference that the Plaintiffs
have actual knowledge of company-wide employment practices and
other employees' duties and pay structures. The evidence shows that
the claim of nonpayment for travel time is not individual to the
Plaintiffs but, rather, potentially involves other employees too.
2. Shift differential collective
The proposed shift differential collective includes employees who,
between Feb. 11, 2018 and the present, worked more than 40 hours
per week and received shift differential pay. The shift
differential pay was an increase on top of the employees' hourly
rate for working less desirable shifts. The Plaintiffs contend that
the Defendants failed to include the shift differential pay when
adding up their hours to see if they were eligible for overtime.
Judge McFarland grants in part the Plaintiffs' motion to certify
the shift differential collective. He finds that the declarations
in support of conditional certification of the shift differential
collective are largely inadequate. Two Plaintiffs state that they
received shift differential hourly premiums, but do not speak to
whether other coworkers received shift differential pay. The
remaining plaintiff avers that A&L "failed to include the shift
differential rates" for both himself and "other home health aides
in the calculation of the overtime premium rate of hours worked in
excess of 40 in a workweek." But this merely restates the
complaint's allegations. Such meager showings, according to the
Judge, by themselves, do not justify conditional certification.
Nevertheless, the Judge says, that the evidentiary burden for
conditional certification is "lenient" and "modest." And there is
one statement that addresses shift differentials and potential
plaintiffs. As a Schedule Supervisor, Clark created and managed the
schedule for home health aides. She avers that all home health
aides received a shift differential hourly premium for certain
hours. This policy, according to her, is set forth in A&L's
employee manual. As the scheduling supervisor, it is feasible that
she would have actual knowledge of both the shift differential
policy and other home health aides who received shift differential
pay, consistent with the policy. Although this "thin" basis for
certification pushes the envelope of what constitutes a modest
factual showing, it nevertheless suffices to satisfy the lenient
burden of demonstrating that a similarly situated class of
potential plaintiffs exists.
3. Minimum wage collective
The minimum wage collective includes hourly paid employees who,
between the relevant dates, were required to travel to clients'
homes using their own vehicle. Each Plaintiff avers that they had
to travel between clients' homes during their shifts. They used
their own vehicles and paid for gas, maintenance, and insurance.
The only compensation they received was the $0.25 per mile
reimbursement rate. Clark states that home health aides used their
personal vehicles to travel to clients' homes.
Judge McFarland denies the Plaintiffs' motion as it relates to the
minimum wage collective. He says, all of the statements are simply
re-allegations of the complaint. The declarations only contain
accounts that apply to the Plaintiffs themselves. Even under the
lenient evidentiary standard, these declarations do not contain
facts showing that the Plaintiffs had actual or even constructive
knowledge that their coworkers also used their own vehicles to
travel from client to client. A collective action cannot proceed on
so little evidence.
4. Defendants' challenge to the conditional certification
framework
The Defendants raise a challenge to the two-step certification
process. They argue that the Court should reject that paradigm and
instead apply the approach of a recent Fifth Circuit case, citing
Swales v. KLLM Transport Services, L.L.C., 985 F.3d 430, 441 (5th
Cir. 2021) (Willet, J.). Smiles held that, instead of adhering to
the two-step conditional certification framework (with its lenient
first stage), a district court "should rigorously enforce the
similarity requirement at the outset of the litigation."
The two-step process of certifying a collective comes from Lusardi
v. Xerox Corp., 118 F.R.D. 351, 352 (D.N.J. 1987). The Fifth
Circuit expressly rejected Lusardi and its two-step certification
regime. It noted that the word "'certification,' much less
'conditional certification,' appears nowhere in the FLSA." Rather,
the only binding commands on district courts are (1) the FLSA's
text declaring that only "similarly situated" individuals may
opt-in to collective litigation and (2) the Supreme Court's
admonition that a district court may facilitate notice to potential
plaintiffs but not signal approval of the merits. And, as for the
"similarly situated" inquiry, the evidentiary standard is rigorous,
not lenient.
Despite the circuit's apparent approval of certifying FLSA
collectives in two stages, Judge McFarland holds that the
Defendants ask the Court to abandon that course in favor of the
Fifth Circuit's recent Swales decision. He declines the invitation
saying that courts in the district routinely apply the two-step
process in FLSA cases, albeit reaching different conclusions on the
necessary evidentiary showing. The Court, absent contrary direction
from the Sixth Circuit, will follow the two-step process.
Nevertheless, the Defendants' challenge of two-step certification
raises issues that merit the Sixth Circuit's attention. The Judge
certifies the conditional certification of the collective actions
for immediate appellate review under 28 U.S.C. Section 1292(b).
B. Scope of notice
Judge McFarland must now determine how far back in time the notice
should extend for the two collectives it certifies. The Plaintiffs
maintain that the Court should approve notice to be sent to
potential plaintiffs who were employed during the past three years
-- from February 2018 to the date the Defendants changed their
travel policy to include hourly payment for travel time. The
Defendants disagree as to both the start date and end date. They
assert that notice should range from February 2019 (applying the
default two-year statute of limitations) to November 2019 (when A&L
employees allegedly signed arbitration agreements that waived their
rights to pursue class action litigation. Two questions thus arise:
Should notice extend back two years or three years? And should
employees who signed arbitration agreements receive notice?
As to the first question, Judge McFarland holds that the two-year
statute of limitations applies and the Notice will extend back to
Feb. 11, 2019. He explains that allegations of willfulness must be
stronger than mere claims that a defendant "knew or had reason to
know" of its alleged FLSA violations. As those are mainly what the
Plaintiffs rely on in the case, they are not enough. Since the
Plaintiffs do not plead facts that make their willfulness position
plausible on its face, mustering instead only conclusory
assertions, they fail to show that Defendants acted willfully.
Turning to the second question, the Judge holds that as with the
conditional certification issue, the applicability of arbitration
agreements to the conditional certification analysis warrants
review by the Sixth Circuit. Accordingly, he also certifies the
issue for interlocutory appeal under Section 1292(b).
Accordingly, to give effect to the FLSA's twin goals of enforcing
the FLSA and efficiently resolving those disputes, the Defendants
will have the opportunity to produce evidence of arbitration
agreements signed by Putative Collective Members.
For those who are not otherwise subject to an arbitration
agreement, and are thus potential plaintiffs, the notice periods
will be as follows: For the travel time collective, the notice
period will extend from Feb. 11, 2019, to the date the Defendants
changed their travel policy to include payment for travel time. As
the Defendants have not made an issue of the latter (unspecified)
date, the Judge orders them within 14 days of the Order to file
evidence that establishes the date they changed their travel policy
to include payment for travel time.
For the shift differential collective, the notice period will
extend from Feb. 11, 2019 to Feb. 11, 2021. But, again, for both
collectives, the Defendants have the opportunity to produce
evidence of arbitration agreements signed by current and former
employees limiting their ability to participate in collective
litigation. Any employee who is subject to an arbitration agreement
will not receive notice.
C. Court-supervised notice
The Plaintiffs request approval of their revised proposed notice.
They wish to be able to send notice to Putative Collective Members
by ordinary mail and by email. They also ask to be permitted to
send a reminder mail and email. To facilitate the sending of
notice, they request that the Defendants provide contact
information for the Putative Collective Members. They ask for an
opt-in period of 60 days.
The Plaintiffs' revised proposed notice will provide accurate and
timely notice and promote judicial economy, but with one caveat:
Because the Court is conditionally certifying only two of the three
proposed collectives, the notice is deficient in that it contains
at least one reference to the collective the Court is not
certifying (employees who were required to use their own vehicle to
travel to clients' homes). The final judicial notice must contain
no mention of any collective the Court has not conditionally
certified.
The means of notice -- ordinary mail and email -- are appropriate.
Reminder notice, however, will risk stirring up litigation and
improperly suggesting the Court's endorsement of the claims. As
such, it is inappropriate in this instance and Judge McFarland will
not allow it.
The Counsel for the Defendants shall, within 14 days, provide the
counsel for the Plaintiffs with a spreadsheet that contains the
following information for Putative Collective Members who have not
waived their ability to participate in collective actions: Full
name, last known mailing address, last known email addresses, dates
of employment, and position. They need not include employees' last
known telephone numbers, since no reminder notice via text message
will be sent. As for the opt-in period, in light of the Court's
"overwhelming acceptance" of opt-in periods up to 90 days, the
Plaintiffs' proposed 60-day opt-in period is reasonable.
D. Interlocutory appeal
Judge McFarland certifies the Order for interlocutory appeal under
Section 1292(b). An order conditionally certifying collectives is
not ordinarily immediately appealable. The matter, however,
presents issues that warrant appellate review.
1. Two-stage certification of FLSA collective actions
The Defendants have expressly asked the Court to abandon the
two-step certification process for FLSA collective actions, and to
instead apply the Fifth Circuit's recent Smiles decision which
rejected that paradigm.
Judge McFarland holds that neither party has shown, and he has not
found, any Sixth Circuit authority requiring courts to certify FLSA
collective actions in two stages. The Fifth Circuit, on the other
hand, in dispensing with step-one conditional certification held
that district courts "must rigorously scrutinize the realm of
'similarly situated' workers" at the beginning of the case.
In light of the issues the Defendants raise, the Judge certifies
the Order for immediate interlocutory appeal under 28 U.S.C.
Section 1292(b). The questions satisfy Section 1292(b)'s three
guiding criteria. First, the Order involves a controlling question
of law. Second, there is also substantial ground for a difference
of opinion. Lastly, an immediate appeal may materially advance the
ultimate termination of the litigation.
2. Considering arbitration agreements at the conditional
certification stage
Second, the Defendants maintain that the arbitration agreements its
employees signed should serve as a cutoff for who receives notice.
This issue too satisfies the Section 1292(b) criteria, Judge
McFarland holds. First, the issue involves a controlling question
of law. Second, there is also a substantial ground for difference
of opinion. Lastly, resolution of the question by the circuit court
may materially advance the ultimate termination of the litigation,
not just in the case but in other FLSA actions. For these reasons,
the Judge also certifies his decision on the arbitration agreements
for review under Section 1292(b).
Conclusion
Upon consideration, Judge McFarland grants in part and denies in
part the Plaintiffs' motion to conditionally certify collective
actions. He conditionally certifies two FLSA collective actions
comprised of the following individuals:
a. FLSA Travel Time Collective: All current and former hourly
paid employees of Defendants who, between Feb. 11, 2019 and [the
date Defendants changed their travel policy to include hourly
payment for travel time], worked in excess of 40 hours per workweek
and were required to travel between clients' homes.
b. FLSA Shift Differential Collective: All current and former
hourly paid employees of Defendants who, between Feb. 11, 2019 and
Feb. 11, 2021, worked in excess of 40 hours per workweek and
received shift differential pay.
The Judge conditionally approves the Plaintiffs' revised proposed
opt-in notice for distribution to the Putative Collective Members,
on the condition that within 21 days of the date the Order is
entered the Plaintiffs file a revised judicial notice that
eliminates reference to the minimum wage collective and complies
with all other parameters set forth in the Order. Once that revised
judicial notice is submitted, the Court will review and advise of
its final approval.
Within 30 days of the date the Order is entered, the Defendants
will file evidence sufficient to identify the date they changed
their travel policy to include hourly payment for travel time.
Within 30 days of the date the Order is entered, the Defendants
will do the following:
a. The Defendants will file a spreadsheet, under seal, that
identifies the names of all Putative Collective Members and whether
they have signed an arbitration agreement.
b. For each Putative Collective Member who has signed an
arbitration agreement, Defendants will file, under seal, sufficient
evidence to show the validity of the arbitration agreement.
c. For each Putative Collective Member who has not signed an
arbitration agreement (Non-Arbitration Putative Collective
Members), Defendants will submit to Plaintiffs' counsel a second
spreadsheet with the following information: full name, last known
mailing address, last known email addresses, dates of employment,
and position.
d. The Court finds that the anticipated filings under the
Order satisfy the requirements to file under seal, pursuant to
Shane Grp., Inc. v. Blue Cross Blue Shield of Michigan, 825 F.3d
299 (6th Cir. 2016).
Within 14 days of receiving the Non-Arbitration Putative Collective
Members' contact information from the Defendants, the Plaintiffs
will send the notices via U.S. mail and email. The Non-Arbitration
Putative Collective Members will then have 60 days from the date
the Plaintiffs send the notices to join the litigation.
Judge McFarland denies the Plaintiffs' request to send any reminder
notice.
Judge McFarland certifies the Order for immediate appeal under 28
U.S.C. Section 1292(b).
A full-text copy of the Court's Aug. 4, 2021 Order is available at
https://tinyurl.com/ja79867p from Leagle.com.
ABC FINANCIAL: Lesser Sues Over Deceptive Collection Letters
------------------------------------------------------------
CHARLES LESSER, individually and on behalf of all others similarly
situated, Plaintiff v. ABC FINANCIAL SERVICES, INC. and JOHN DOES
1-25, Defendants, Case No. 3:21-cv-01087 (D. Conn., August 11,
2021) is a class action complaint brought against the Defendants
seeking damages and declaratory relief for their alleged willful
and negligent violations of the Fair Debt Collection Practices
Act.
The Plaintiff has an alleged debt incurred to Catalyst Fitness
Middlebury specifically for gym membership.
According to the complaint, Catalyst Fitness Middlebury contracted
with the Defendant to collect the alleged debt. Subsequently on or
about October 5, 2020, the Plaintiff received a collection letter
from the Defendant and responded immediately via email on the same
day asserting his "g-notice" rights, disputed and requested for
validation in accordance with 15 U.S.C. Section 1692g. However, the
Defendants allegedly failed to honor the validation request and
continued its collection efforts.
The Plaintiff claims that the Defendants' deceptive, misleading and
unfair representations with respect to its collection efforts were
material misrepresentations that affected and frustrated his
ability to intelligently respond to its collection efforts. As a
result of the Defendants' unlawful collection practices, the
Plaintiff has been damaged. Thus, on behalf of himself and other
similarly situated individuals, the Plaintiff seeks statutory
damages, actual damages, litigation costs, reasonable attorneys'
fees and expenses, pre- and post-judgment interest, and other
relief as the Court may deem just and proper.
ABC Financial Services, Inc. is a debt collector. [BN]
The Plaintiff is represented by:
Raphael Deutsch, Esq.
STEIN SAKS, PLLC
One University Plaza
Hackensack, NJ 07601
Tel: (201) 282-6500 ext. 141
Fax: (201) 282-6501
E-mail: rdeutsch@steinsakslegal.com
ACADIA PHARMA: Appointment of Lead Counsel and Plaintiff Pending
----------------------------------------------------------------
ACADIA Pharmaceuticals Inc. said in its Form 10-Q Report filed with
the Securities and Exchange Commission on August 5, 2021, for the
quarterly period ended June 30, 2021, that the motions to appoint
lead plaintiff and lead counsel in Marechal v. Acadia
Pharmaceuticals, Inc., Case No. 21-cv-0762, is pending.
On April 19, 2021, a purported Company stockholder filed a putative
securities class action complaint (captioned Marechal v. Acadia
Pharmaceuticals, Inc., Case No. 21-cv-0762) in the U.S. District
Court for the Southern District of California against the Company
and certain of its current executive officers.
The complaint generally alleges that defendants violated Sections
10(b) and 20(a) of the Securities Exchange Act of 1934 by making
materially false and misleading statements regarding the Company's
business, operations, and prospects by failing to disclose that the
materials submitted in support of its supplemental New Drug
Application (sNDA) seeking approval of pimavanserin for the
treatment of hallucinations and delusions associated with
dementia-related psychosis contained statistical and design
deficiencies and that the Food and Drug Administration (FDA) was
unlikely to approve the sNDA in its current form.
The complaint seeks unspecified monetary damages and other relief.
On June 21, 2021, five motions for lead plaintiff and lead counsel
were filed.
Thereafter, four of the five movants either withdrew their motions
or filed statements of non-opposition. The Court has not yet issued
an order designating lead plaintiff and lead counsel.
ACADIA Pharmaceuticals Inc., a biopharmaceutical company, focuses
on the development and commercialization of small molecule drugs
that address unmet medical needs in central nervous system
disorders. The Company was founded in 1993 and is headquartered in
San Diego, California.
ACADIA PHARMA: Hearing on Bid to Nix Nuplazid Suit Set for Oct. 1
-----------------------------------------------------------------
ACADIA Pharmaceuticals Inc. said in its Form 10-Q Report filed with
the Securities and Exchange Commission on August 5, 2021, for the
quarterly period ended June 30, 2021, that hearing on the motion to
dismiss the consolidated putative class action suit entitled, In re
Acadia Pharmaceuticals Inc. Securities Litigation, Case No.
18-cv-01647, is set to be heard on October 1, 2021.
Between July 19 and August 3, 2018, following negative publicity
about Nuplazid, three purported company stockholders filed putative
securities class action complaints (captioned Staublein v. Acadia
Pharmaceuticals, Inc., Case No. 18-cv-01647, Stone v. Acadia
Pharmaceuticals Inc., Case No. 18-cv-01672, and Barglow v. Acadia
Pharmaceuticals Inc., Case No. 18-cv-01812) in the U.S. District
Court for the Southern District of California against the Company
and certain of its current and former executive officers.
Thereafter, several putative lead plaintiffs filed motions to
consolidate the cases and to appoint a lead plaintiff.
On January 3, 2019, the Court consolidated the cases under the
caption In re Acadia Pharmaceuticals Inc. Securities Litigation,
Case No. 18-cv-01647, and took the lead plaintiff motions under
submission.
On February 26, 2019, the Court appointed a lead plaintiff and lead
counsel. Lead plaintiff filed a consolidated complaint on April 15,
2019. The consolidated complaint generally alleges that defendants
violated Sections 10(b) and 20(a) of the Securities Exchange Act of
1934 by making materially false and misleading statements regarding
the Company's business, operations, and prospects by failing to
disclose that adverse events and safety concerns regarding NUPLAZID
threatened initial and continuing the Food and Drug Administration
(FDA) approval, and by failing to disclose that the Company engaged
in business practices likely to attract regulatory scrutiny.
The consolidated complaint seeks unspecified monetary damages and
other relief. Defendants filed a motion to dismiss the consolidated
complaint on June 7, 2019. On June 1, 2020, the Court granted the
motion in part and gave lead plaintiff leave to file an amended
complaint. On July 16, 2020, lead plaintiff filed the amended
complaint.
Defendants filed a motion to dismiss the amended complaint on
August 28, 2020. Lead plaintiff opposed the motion on September 15,
2020. Defendants' reply in support of the motion to dismiss was
filed on November 11, 2020. On March 29, 2021, the Court granted
the defendants' motion to dismiss with leave to amend. On April 16,
2021, lead plaintiff filed a third amended complaint.
On April 20, 2021, the Court entered a schedule for filing and
briefing a motion to dismiss the third amended complaint.
Defendants' filed a motion to dismiss the third amended complaint
on May 31, 2021. The lead plaintiff opposed the motion on July 12,
2021. Defendants' reply in support of its motion is due on August
11, 2021.
The motion is set to be heard on October 1, 2021.
ACADIA Pharmaceuticals Inc., a biopharmaceutical company, focuses
on the development and commercialization of small molecule drugs
that address unmet medical needs in central nervous system
disorders. The Company was founded in 1993 and is headquartered in
San Diego, California.
ADT INC: Preddy Class Action Stayed
-----------------------------------
ADT Inc. said in its Form 10-Q Report filed with the Securities and
Exchange Commission on August 4, 2021, for the quarterly period
ended June 30, 2021, that the class action suit entitled, Alexia
Preddy v. ADT LLC has been stayed and administratively closed
pending arbitration.
In June 2020, the Company was served with a class action complaint
in a case captioned Alexia Preddy v. ADT LLC and filed in the U.S.
District Court for the Southern District of Florida.
By an amended complaint, the plaintiff asserts causes of action on
behalf of herself and others similarly situated as individuals
residing in homes of Company customers, and seeks to recover
damages for negligence, intrusion upon seclusion, violation of the
Computer Fraud and Abuse Act, negligent hiring, supervision and
retention, and intentional infliction of emotional distress.
The Company moved to dismiss the plaintiff's amended complaint and
to compel arbitration. In December 2020, the federal district court
granted the Company's motion to compel arbitration.
The case is stayed and administratively closed pending arbitration.
The Company's motion to dismiss was denied as moot.
ADT Inc. provides security and automation solutions for homes and
businesses in the United States and Canada. It provides a range of
fire detection, fire suppression, video surveillance, and access
control systems to residential, commercial, and multi-site
customers. The company was formerly known as Prime Security
Services Parent, Inc. and changed its name to ADT Inc. in September
2017. ADT Inc. was founded in 1874 and is headquartered in Boca
Raton, Florida.
ALL MY SONS: Summary Judgment Bid in Grogan Suit Allowed in Part
----------------------------------------------------------------
In the case, JACOB GROGAN, PAUL JONES, TERRANCE LEE, and TREAVON
WHITAKER, individually and on behalf of all others similarly
situated, Plaintiffs v. ALL MY SONS BUSINESS DEVELOPMENT LLC; ALL
MY SONS MOVING AND STORAGE OF RHODE ISLAND LLC; and CHRIS GENERALE,
Defendants, Civil Action No. 19-11531-PBS (D. Mass.), Judge Patti
B. Saris of the U.S. District Court for the District of
Massachusetts allowed in part and denied part:
(i) All My Sons' motion for summary judgment on the Wage Act
claim (Count I); and
(ii) the Plaintiffs' motion for partial summary judgment
related to the Minimum Wage Law claim (Count II).
All My Sons operates a moving and storage company with dozens of
locations throughout the United States. The Plaintiffs are
individuals employed as Drivers and/or Helpers out of the
Massachusetts locations of All My Sons. Drivers are, as expected,
the employees who drive the moving trucks during assignments.
Helpers are Drivers' "'right-hand men' helping on the job" and
assist Drivers in performing tasks related to the move itself. A
typical work assignment includes one Driver and one to two
Helpers.
The parties disagree as to whether All My Sons pays Helpers the
Massachusetts minimum wage or at a rate slightly above minimum
wage. They agree, however, that All My Sons pays Drivers at a rate
above minimum wage (although they dispute how far above minimum
wage that rate is).
The Plaintiffs bring the class action against All My Sons, alleging
violations of the Massachusetts Wage Act, Mass. Gen. Laws ch. 149,
Section 148 (Count I), and the Massachusetts Minimum Wage Law,
Mass. Gen. Laws ch. 151, Section 1 (Count II).
The Court has certified the following two classes:
(1) All Drivers employed by All My Sons Moving who performed
work from an office location in Massachusetts, from April 26, 2016
to the present.
(2) All Helpers employed by All My Sons Moving who performed
work from an office location in Massachusetts, from April 26, 2016
to the present.
The core claim for both classes is that All My Sons required them
to work significant hours "off the clock" under uniform
company-wide timekeeping and compensation policies.
Before the Court now are cross-motions for partial summary
judgment. All My Sons moves for summary judgment on the Wage Act
claim (Count I). The Plaintiffs move for partial summary judgment
related to the Minimum Wage Law claim (Count II).
Analysis
A. All My Sons' Motion for Summary Judgment
All My Sons seeks entry of judgment in its favor on Count I (the
Wage Act claim). It contends that, because the Wage Act only exists
to "ensure that employers fulfill the promises they make to
employees," and because it has fulfilled its promises to employees
by complying with the wage structure set forth in the Payroll
Policy, it is entitled to a finding as a matter of law that it did
not violate the Wage Act.
Judge Saris agrees with All My Sons that the Payroll Policy does
not facially violate the Wage Act simply because it fails to
separately pay employees for each hour worked. The implementing
regulations for the Wage Act implicitly recognize that compensation
structures other than straight hourly wages may be permissible. And
after reviewing the terms of the Payroll Policy itself, the Judge
believes it to establish a "compensation structure with the
employee that pays him on an hourly basis for only certain tasks
but no additional compensation for others," and not to constitute
an attempt to evade the requirements of the Wage Act by "special
contract."
The Plaintiffs argue that, even if the Payroll Policy is a
permissible agreement, they never clearly and unambiguously
consented "to forego their hourly pay for all hours actually
worked" as provided for in the Payroll Policy. They contend that,
even if they agreed to the Payroll Policy, All My Sons has not
complied with the promises contained within that document.
Specifically, the Plaintiffs argue that they have not been paid for
"Warehouse Time labor," calculated as "[s]imple start and stop time
from the time work begins and ends."
Judge Saris agrees. By its plain language, "Warehouse Time labor"
equates to time spent working in the warehouse. It thus encompasses
the time spent by the Plaintiffs in the warehouse in the morning
and the afternoon. As All My Sons did not compensate the Plaintiffs
for this time, All My Sons did not provide the Plaintiffs with all
wages promised under the Payroll Policy. Accordingly, the Judge
allows the Defendants' motion for summary judgment on Count I
except with respect to warehouse time labor.
B. Plaintiffs' Motion for Summary Judgment
The Plaintiffs move for summary judgment on two issues related to
Count II (the Minimum Wage Law claim). First, they seek a finding
that All My Sons violated the requirement under Mass. Gen. Laws ch.
151, Section 15, and 454 Mass. Code Regs. Section 27.07(2) to keep
records of all hours worked by its employees, which would allow
them to use the relaxed burden of proof framework established by
Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680 (1946), to
establish liability on Count II.
Judge Saris finds that the Defendant correctly notes that there is
no separate cause of action where an employer fails to keep
accurate records, citing Walker v. Osterman Propane LLC, 411
F.Supp.3d 100, 109 (D. Mass. 2019). She accordingly will deny this
portion of the Plaintiffs' motion. Nonetheless, because All My Sons
indisputably did not record when employees arrived on site at the
warehouse in the morning or left in the evening, she will apply the
relaxed burden.
Second, the Plaintiffs argue that, "as a matter of law, the time
from when the class members arrived at All My Sons office until
their departure from the office at the end of the workday is
'compensable.'" The parties' briefs appear to be ships passing in
the night: All My Sons does not challenge this point. To the
contrary, it concedes that, for the purposes of calculating
compliance with the Minimum Wage Law, all hours worked must be
considered, even if they are not separately compensated. Judge
Saris accordingly allows the portion of the Plaintiffs' motion
seeking a holding that all time worked in a workweek is compensable
for the purposes of calculating compliance with the Minimum Wage
Law.
Order
For the reasons stated, Judge Saris allowed in part and denied in
part (i) the Defendants' motion for summary judgment and (ii) the
Plaintiffs' motion for summary judgment.
A full-text copy of the Court's Aug. 4, 2021 Memorandum & Order is
available at https://tinyurl.com/k85yhrup from Leagle.com.
ALLBIRDS INC: Claims That False Advertising Lawsuit Lacks Merit
---------------------------------------------------------------
Ecotextile reports that US footwear brand Allbirds has firmly
rebutted legal action by a group of consumers who claim the
company's marketing messages exaggerate its sustainability
credentials.
In a complaint filed at the US District Court for the Southern
District of New York, lead plaintiff Patricia Dwyer says she and
other consumers paid over the odds for Allbirds shoes because of
"false advertising".
However, an Allbirds spokeswoman insisted: "The claims in this case
lack merit -- since day one, reducing our environmental impact and
caring for the planet's well-being have underpinned everything we
do. [GN]
ANTARES PHARMA: Dismissal of Smith Class Action Under Appeal
------------------------------------------------------------
Antares Pharma, Inc. said in its Form 10-Q Report filed with the
Securities and Exchange Commission on August 5, 2021, for the
quarterly period ended June 30, 2021, that plaintiffs appeal on the
court's order of dismissal in Randy Smith, Individually and on
Behalf of All Others Similarly Situated v. Antares Pharma, Inc.,
Robert F. Apple and Fred M. Powell, Case No. 3:17-cv-08945-MAS-DEA,
is pending.
On October 23, 2017, Randy Smith filed a complaint in the District
of New Jersey, captioned Randy Smith, Individually and on Behalf of
All Others Similarly Situated v. Antares Pharma, Inc., Robert F.
Apple and Fred M. Powell, Case No. 3:17-cv-08945-MAS-DEA, on behalf
of a putative class of persons who purchased or otherwise acquired
Antares securities between December 21, 2016 and October 12, 2017,
inclusive, asserting claims for purported violations of Sections
10(b) and 20(a) of the Securities Exchange Act of 1934, as amended,
against Antares, Robert F. Apple and Fred M. Powell.
The Smith complaint contends that defendants made false and/or
misleading statements and/or failed to disclose that: (i) Antares
had provided insufficient data to the Food and Drug Administration
(FDA) in connection with the New Drug Application (NDA) for
XYOSTED(R); and (ii) accordingly, Antares had overstated the
approval prospects for XYOSTED(R).
On July 27, 2018, the court entered an order appointing Serghei
Lungu as lead plaintiff, Pomerantz LLP as lead counsel, and Lite
DePalma Greenberg, LLC as liaison counsel for plaintiff.
On August 3, 2018, the parties submitted a stipulation and proposed
order, setting forth an agreed-upon schedule for responding to the
complaint, which the court granted.
Pursuant to that order, plaintiff filed a Consolidated Amended
Class Action Complaint on October 9, 2018. On November 26, 2018,
defendants filed a motion to dismiss. Plaintiff filed an opposition
to the motion on January 10, 2019 and defendants filed a reply in
support of their motion on February 25, 2019.
On July 2, 2019, the court dismissed the complaint in its entirety
without prejudice. On July 29, 2019, plaintiff filed a Consolidated
Second Amended Class Action Complaint against the same parties
alleging substantially similar claims.
On September 12, 2019, defendants filed a motion to dismiss the
Consolidated Second Amended Class Action Complaint. Plaintiffs'
opposition was filed on October 28, 2019 and defendants' reply in
support of their motion was filed on November 27, 2019.
On April 28, 2020, the court dismissed the Consolidated Second
Amended Class Action Complaint in its entirety. The court further
ordered that plaintiff may file an amended complaint by May 29,
2020 and provide the court with a form of the amended complaint
that indicates in what respect(s) it differs from the complaint
which it proposes to amend.
On May 29, 2020, plaintiff filed a Consolidated Third Amended Class
Action Complaint and defendants filed a motion to dismiss on July
10, 2020. Briefing on defendants' motion was complete on August 25,
2020. On February 26, 2021, the court granted defendants' motion to
dismiss with prejudice, and on March 29, 2021 the plaintiff filed a
notice of appeal.
On June 21, 2021, plaintiff-appellant filed his opening brief.
Defendants-appellees' response brief is due on August 4, 2021 and
plaintiff-appellant's reply is due on August 25, 2021.
The Company believes that the claims in the Smith action lack merit
and intends to continue to defend them vigorously.
Antares Pharma, Inc. focuses on developing and commercializing
self-administered parenteral pharmaceutical products and
technologies worldwide. The company was founded in 1978 and is
headquartered in Ewing, New Jersey.
ASCENT RESOURCES-UTICA: Class & Subclasses Certified in Eaton Suit
------------------------------------------------------------------
In the case, BRIAN EATON and CYNTHIA EATON, individually and on
behalf of a class of all other similarly situated, and CUNNINGHAM
PROPERTY MANAGEMENT TRUST, individually and on behalf of a class of
all other similarly situated, Plaintiffs v. ASCENT RESOURCES -
UTICA, LLC Defendant, Case No. 2:19-cv-3412 (S.D. Ohio), Judge
Edmund R. Sargus, Jr., of the U.S. District Court for the Southern
District of Ohio, Eastern Division:
(i) denies the Defendant's motion to exclude the opinions of
the Plaintiffs' expert; and
(ii) grants the Plaintiffs' motion for class certification.
The case involves the alleged underpayment of royalties on oil and
gas leases. Plaintiffs Cunningham, and Brian and Cynthia Eaton, are
the lessors to oil and gas leases with Ascent, a natural gas and
oil producer doing business in Ohio. Ascent became the lessee to
Cunningham's and the Eatons' leases through assignment. The Eatons
allege that "as soon as Ascent took our checks over, they decreased
about 50 percent." The Eatons and Cunningham filed lawsuits against
Ascent, which the Court has since consolidated.
While Cunningham and the Eatons both allege Ascent underpaid
royalties, their allegations vary based on different provisions in
their lease agreements. Cunningham's leases do not contain a market
enhancement clause. Instead, the Cunningham lease requires Ascent
to pay royalties based on a proportionate share of the wellhead
price. In a prior Opinion and Order, the Court applied the
at-the-well rule and held that the Cunningham leases permit
post-production deductions to the lessor's royalty payments, but
only to the extent that the deductions are reasonable.
According to Ascent's revenue controller, Jeff Lenocker, Ascent
places leases into three main categories (also known as MEG
groups), "gross proceeds" leases, "net proceeds" leases (subclasses
(a), (b), and (c)), and "market enhancement clause" leases
(subclasses (d) and (e)). Ascent treats all the lessors in a MEG
group the same for royalty deductions. The Cunningham leases both
fall into the "net proceeds" MEG group, while the Eatons' lease
falls into the "market enhancement clause" MEG group. Of Ascent's
approximately 5,797 producing leases, it appears that around 3,000
are categorized as net proceeds leases, and 651 are categorized as
market enhancement leases.
The Plaintiffs' proffered expert, Rick Harper, opines that Ascent
is taking "substantially higher than anticipated" deductions from
the net-proceeds lease royalties, and deducting from the market
enhancement lease royalties without considering whether the
deductions enhance value. Harper has 40 years of experience in the
energy industry. Among other positions, Harper has served as
President of ARCO Gas, and President and CEO of CANOR Energy, Ltd.
Harper has also served as an advisor and consultant in varying
capacities. Harper based his opinions on experience, the COPAS Gas
Accounting Manual, and a comparison of Ascent to other producers.
The COPAS Gas Accounting Manual contains industry guidelines for
oil and gas accounting, as well as the payment of royalties.
Based on his review of the records and his experience, Harper
concludes that Ascent pays inflated expenses to affiliated parties.
While Harper concludes that Ascent's payment of inflated prices to
affiliated parties is the reason for the higher post-production
deductions, he opines that Ascent's deduction amounts are high
regardless based on his experience, COPAS guidelines, and a
comparison with other producers. (Id. at 36). And, regarding the
market enhancement leases, Harper concludes that Ascent did not
consider whether the expenses it deducts had enhanced the value of
the product, and that Ascent over-deducted. Finally, Harper
concludes that these practices are ongoing.
The Plaintiffs move for the Court to certifying their proposed
class under Federal Rule of Civil Procedure 23(b)(3). Ascent
responds in opposition, and simultaneously moves to exclude the
opinions of the Plaintiffs' expert.
Discussion
A. Daubert Motion
The Plaintiff argues that Rick Harper's opinions in his expert
report are inadmissible. Expert testimony is admissible if: (a) the
expert's scientific, technical, or other specialized knowledge will
help the trier of fact to understand the evidence or to determine a
fact in issue; (b) the testimony is based on sufficient facts or
data; (c) the testimony is the product of reliable principles and
methods; and (d) the expert has reliably applied the principles and
methods to the facts of the case.
Ascent submits that Harper's opinions are unreliable because they
"(1) do not rely upon established facts, but instead rely on
unsupported assumptions that are factually inaccurate; (2) do not
rely upon a reasonable, repeatable methodology, but often upon no
methodology at all or (3) offer legal opinions and conclusions."
Upon reviewing Harper's report, Judge Sargus finds no instance when
Harper stated that the COPAS Gas Accounting Manual "dictates"
lesser charges. (Indeed, Harper refers to COPAS as "guidelines."
Because Harper has not opined that COPAS guidelines dictate lesser
charges, no such opinion exists to exclude. Harper's opinion that
Ascent did not follow industry standards as exemplified in COPAS
guidelines is not a legal opinion. For these reasons, the Judge
denies Ascent's Daubert motion.
B. Motion for Class Certification
The Plaintiffs move to certify the following class:
A. All persons or entities (including their predecessors and
successors-in-interest) who have received, or who are entitled to
receive, royalty payments (whether as a landowner or mineral owner)
from natural gas or oil wells located within the State of Ohio and
that have been owned or operated by Ascent (or any Ascent's
affiliates, predecessors, successors, or subsidiaries), or whose
royalties are paid by Ascent regardless of whether Ascent is the
actual lessee since Oct. 1, 2014, or for which Ascent (or any
Ascent's affiliates, predecessors, successors, or subsidiaries) was
the lessee or owner of the working interest pursuant to any oil and
gas lease, or for which Ascent was associated with such wells or
associated drilling units, since Oct. 1, 2014.
B. Subclass (a): All persons or entities within the Class who
have had deductions for gathering and compression expenses taken
from royalty payments by Ascent.
C. Subclass (b): All persons or entities within the Class who
have had deductions for processing expenses taken from royalty
payments by Ascent.
D. Subclass (c): All persons or entities within the Class who
have had deductions for transportation expenses taken from royalty
payments by Ascent.
E. Subclass (d): All persons or entities within the Class for
which Ascent has classified the lessor as having a market
enhancement clause lease who have had deductions for processing
expenses taken from royalty payments by Ascent.
F. Subclass (e): All persons or entities within the Class for
which Ascent has classified the lessor as having a market
enhancement clause lease who have had deductions for transportation
expenses taken from royalty payments by Ascent.
The Plaintiffs request certification under Rule 23(b)(3). For Rule
23(b)(3) to authorize class certification, the Plaintiffs must show
that "the questions of law or fact common to class members
predominate," and that a class action is the "superior" method for
"fairly and efficiently adjudicating the controversy." Implied in
addition, the Plaintiff's must show that the class description is
"sufficiently definite so that it is administratively feasible for
the court to determine whether a particular individual is a
member."
1. Ascertainability
Some of Ascent's arguments concerning the scope and clarity of the
Plaintiffs' proposed class definition are persuasive, Judge Sargus
finds. For example, the language of the proposed class covers
people receiving royalties from natural gas or oil wells "for which
Ascent was associated with such wells or associated drilling units,
since Oct. 1, 2014." The Judge agrees with Ascent that this
language is problematically vague. Ascent makes other similar
arguments with varying degrees of persuasiveness, but none of which
is fatal to the class. Rather than address each of these arguments
individually, the Court will exercise its power to redefine the
class.
Having taken Ascent's arguments under advisement, Judge Sargus
redefines the class as follows:
A. All persons or entities (including their predecessors and
successors-in-interest) who have received, or who are entitled to
receive, royalty payments from natural gas or oil wells located in
Ohio, who were paid royalties by Ascent at any time since Oct. 1,
2014, and who fit into one or more of the following subclasses.
B. Subclass (a): All persons or entities who have had
deductions for gathering and compression expenses taken from
royalty payments by Ascent.
C. Subclass (b): All persons or entities who have had
deductions for processing expenses taken from royalty payments by
Ascent.
D. Subclass (c): All persons or entities who have had
deductions for transportation expenses taken from royalty payments
by Ascent.
E. Subclass (d): All persons or entities for which Ascent has
classified the lessor as having a market enhancement clause lease
who have had deductions for processing expenses taken from royalty
payments by Ascent.
F. Subclass (e): All persons or entities for which Ascent has
classified the lessor as having a market enhancement clause lease
who have had deductions for transportation expenses taken from
royalty payments by Ascent.
The members of the modified class can be objectively identified in
the manner proposed by the Plaintiffs: Using Ascent's MEG groups,
lease records, and royalty records. According to Ascent, there is
an ascertainability issue because using its records would require
individualized inquiry. However, courts have found and Judge Sargus
agrees that "the need to review individual files to identify class
members is not a reason to deny class certification." Though a
records review may be time consuming, that does not make the
inquiry any less objective. The class, as modified, satisfies the
ascertainability requirement for class certification under Federal
Rule of Civil Procedure 23(b)(3).
2. Rule 23(a)
For a class to receive class certification under Rule 23(b)(3), the
class must first satisfy the requirements of Rule 23(a):
numerosity, commonality, typicality, and representative adequacy.
Judge Sargus holds that the requirements of Rule 23(a) are
satisfied. First, there are approximately 3,000 "net proceeds"
leases that fall into subclasses (a) (b) and/or (c), and 651
"market enhancement" leases that fall into subclasses (d) and (e).
Second, the members of subclass (a), (b), and (c) share common
questions in whether Ascent's post-production deductions are
unreasonable and whether affiliated party contracts are resulting
in inflated prices. The members of subclass (d) and (e) share a
common question in whether Ascent enhanced the prices obtained for
gas sold under market enhancement leases. The answers to these
questions will resolve central issues to the litigation in one
stroke.
Third, the Plaintiffs claims arise out of the same practices or
courses of conduct that give rise to the claims of the other class
members, and their claims are based on the same legal theories.
Finally, the Judge sees no reason that the class representatives
would do anything other than vigorously prosecute the claims of the
class and their respective subclasses.
3. Rule 23(b)(3)
As Judge Sargus has found that the requirements of Rule 23(a) are
satisfied, he turns to the requirements of Rule 23(b)(3). He says,
Rule 23(b)(3) requires the common questions to predominate, but
Rule 23(b)(3) does not require the common questions to be the only
questions. While it appears that the case, as any case, involves
some individual issues, the Judge finds that the Plaintiffs have
shown that the common questions are central and predominating. The
Judge also agrees that a class action is the superior method of
adjudicating the case.
Conclusion
For the reasons he stated, Judge Sargus denies the Defendant's
Daubert motion, and grants the Plaintiffs' motion for class
certification. The Court's grant of class certification under Fed.
R. Civ. P. 23(b)(3) is subject to the class definition
modifications included.
A full-text copy of the Court's Aug. 4, 2021 Order is available at
https://tinyurl.com/6b4ew8ej from Leagle.com.
ATHENEX INC: Oral Paclitaxel Related Putative Class Suit Underway
-----------------------------------------------------------------
Athenex, Inc. said in its Form 10-Q Report filed with the
Securities and Exchange Commission on August 5, 2021, for the
quarterly period ended June 30, 2021, that the company faces two
purported class action suit related to the company's New Drug
Application ("NDA") for oral paclitaxel and encequidar.
In February 2021, the Company received a Complete Response Letter
("CRL") from the U.S. Food and Drug Administration ("FDA")
regarding the Company's NDA for oral paclitaxel and encequidar for
the treatment of metastatic breast cancer.
The FDA issues a CRL to indicate that the review cycle for an
application is complete and that the application is not ready for
approval in its present form. In the CRL, the FDA indicated its
concern of safety risk to patients in terms of an increase in
neutropenia-related sequelae on the Oral Paclitaxel arm compared
with the IV paclitaxel arm in the Phase III study.
Following the company's receipt of the CRL in February 2021 and the
subsequent decline of the market price of the Company's common
stock, two purported securities class action lawsuits were filed in
the U.S. District Court for the Western District of New York on
March 3, 2021 and March 22, 2021, respectively, against the Company
and certain members of its management team seeking to recover
damages for alleged violations of Sections 10(b) and 20(a) of the
Securities Exchange Act of 1934.
The complaints generally allege that between August 7, 2019 and
February 26, 2021 (the purported class period), the Company and the
individual defendants made materially false and misleading
statements regarding the Company's business in connection with the
Company's development of Oral Paclitaxel for the treatment of
metastatic breast cancer and the likelihood of FDA approval, and
that the plaintiffs suffered losses when the Company's stock price
dropped after its announcement on February 26, 2021 regarding
receipt of the CRL.
The complaints seek class certification, damages, fees, costs, and
expenses. Motions to appoint a lead plaintiff and consolidate the
two cases were fully briefed as of May 17, 2021, and are now
pending before the court.
The defendants expect that the court will issue an order
consolidating these two lawsuits and appointing a lead plaintiff in
the coming months. Additional similar lawsuits might be filed.
Athenex said, "The Company and the individual defendants believe
that the claims in these lawsuits are without merit, and the
Company has not recorded a liability related to this shareholder
class action lawsuit as the risk of loss is remote. The Company and
the individual defendants intend to vigorously defend against these
claims but there can be no assurances as to the outcome."
Athenex, Inc., is an oncology pharmaceutical company focused on the
development and commercialization of therapies for cancer diseases
and supportive therapies. The Company's technology platform is
organized into three categories, including Oral Absorption
Platform, Src Kinase Inhibitors and Symptom Therapeutics.
BALTIMORE, MD: Class Action Mulled if Schools CEO Not Removed
-------------------------------------------------------------
Fox45 News reports that a group of local non-profits and community
members is threatening to sue Baltimore City schools unless the CEO
is removed from her post by Aug. 15.
It was during a rally outside city hall 12 days ago, protestors
demanded Dr. Santelises resign or they will file a class action
lawsuit.
"This is not about politics, this is really about the future for
children in Baltimore city," said Paster Shannon Wright, former
mayoral candidate in Baltimore and member of the Urban Engagemnet
Initiative.
The school board has released a statement supporting their CEO.
Pastor Wright said several people supporting Dr. Santelises will be
named in the lawsuit.
"Anyone that is in support of Dr. Santelises, whether it be the
board of eduction, city council or the mayor will be named in this
suit and the reason is all of them have the ability to be able to
bring pressure and to be able to encourgage arm twist and motivate
the district to be able to do what it should be doing in the best
interest of the children of Baltimore city and they're not."
The lawsuit was set to be filed on Aug. 16 if no action is taken to
remove Dr. Santelises, according to Pastor Wright. [GN]
BANK OF NEW YORK: Investor Suit Over Stanford Ponzi Scheme Ongoing
------------------------------------------------------------------
The Bank of New York Mellon Corporation said in its Form 10-Q
Report filed with the Securities and Exchange Commission on August
5, 2021, for the quarterly period ended June 30, 2021, that the
company continues to defend suits over Stanford Ponzi Scheme.
In late December 2005, Pershing LLC became a clearing firm for
Stanford Group Co. ("SGC"), a registered broker-dealer that was
part of a group of entities ultimately controlled by R. Allen
Stanford ("Stanford").
Stanford International Bank, also controlled by Stanford, issued
certificates of deposit ("CDs"). Some investors allegedly wired
funds from their SGC accounts to purchase CDs.
In 2009, the Securities and Exchange Commission charged Stanford
with operating a Ponzi scheme in connection with the sale of CDs,
and SGC was placed into receivership. Alleged purchasers of CDs
have filed two putative class action proceedings against Pershing:
one in November 2009 in Texas federal court, and one in May 2016 in
New Jersey federal court.
After dismissals, three lawsuits remain against Pershing in
Louisiana and New Jersey federal courts, which were filed in
January 2010, October 2015 and May 2016.
The purchasers allege that Pershing, as SGC's clearing firm,
assisted Stanford in a fraudulent scheme and assert contractual,
statutory and common law claims.
In March 2019, a group of investors filed a putative class action
against The Bank of New York Mellon in New Jersey federal court,
making the same allegations as in the prior actions brought against
Pershing.
All the cases that have been brought in federal court against
Pershing and the case brought against The Bank of New York Mellon
have been consolidated in Texas federal court for discovery
purposes.
In July 2020, after being enjoined from pursuing claims before the
Financial Industry Regulatory Authority, Inc. ("FINRA"), an
investment firm filed an action against Pershing in Texas federal
court. This action has been resolved. Various alleged Stanford CD
purchasers asserted similar claims in FINRA arbitration
proceedings, all of which have been settled or decided.
The Bank of New York Mellon Corporation provides a range of
financial products and services to institutions, corporations, and
high net worth individuals in the United States and
internationally. The company operates through two segments,
Investment Management and Investment Services. The Bank of New York
Mellon Corporation was founded in 1784 and is headquartered in New
York, New York.
BARINGS BDC: Consolidated Securities Class Suit in NY Concluded
---------------------------------------------------------------
Barings BDC, Inc. said in its Form 10-Q Report filed with the
Securities and Exchange Commission on August 5, 2021, for the
quarterly period ended June 30, 2021, that the consolidated
purported class action suit entitled, In re Triangle Capital Corp.
Securities Litigation, Master File No. 5:18-cv-00010-FL, has been
concluded.
The Company and certain of its former executive officers have been
named as defendants in two putative securities class action
lawsuits, each filed in the United States District Court for the
Southern District of New York (and then transferred to the United
States District Court for the Eastern District of North Carolina)
on behalf of all persons who purchased or otherwise acquired our
common stock between May 7, 2014 and November 1, 2017.
The first lawsuit was filed on November 21, 2017, and was captioned
Elias Dagher, et al., v. Triangle Capital Corporation, et al., Case
No. 5:18-cv-00015-FL.
The second lawsuit was filed on November 28, 2017, and was
captioned Gary W. Holden, et al., v. Triangle Capital Corporation,
et al., Case No. 5:18-cv-00010-FL.
The Dagher Action and the Holden Action were consolidated and are
currently captioned In re Triangle Capital Corp. Securities
Litigation, Master File No. 5:18-cv-00010-FL.
On April 10, 2018, the plaintiff filed its First Consolidated
Amended Complaint. The complaint alleged certain violations of the
securities laws, including, among other things, that the defendants
made certain materially false and misleading statements and
omissions regarding the Company's business, operations and
prospects between May 7, 2014 and November 1, 2017.
The plaintiff seeks compensatory damages and attorneys' fees and
costs, among other relief, but did not specify the amount of
damages being sought. On May 25, 2018, the defendants filed a
motion to dismiss the complaint.
On March 7, 2019, the court entered an order granting the
defendants' motion to dismiss.
On March 28, 2019, the plaintiff filed a motion seeking leave to
file a Second Consolidated Amended Complaint. On September 20,
2019, the court entered an order denying the plaintiff's motion for
leave to file a Second Consolidated Amended Complaint and
dismissing the action with prejudice.
On October 17, 2019, the plaintiff filed a notice of appeal seeking
review of the court's September 20, 2019 order. The plaintiff filed
its opening brief with the United States Court of Appeals for the
Fourth Circuit on January 6, 2020. The defendants filed their
response brief on February 28, 2020, and the plaintiff filed its
reply brief on March 27, 2020.
The United States Court of Appeals for the Fourth Circuit heard
oral argument on the appeal on December 9, 2020. On February 22,
2021, the United States Court of Appeals for the Fourth Circuit
affirmed the court's September 20, 2019 order dismissing the action
with prejudice.
The deadline for the plaintiff to file a petition for a writ of
certiorari in the United States Supreme Court has expired.
Consequently, the complaint is dismissed with prejudice and the
case is over.
Barings BDC, Inc. is a business development company specializing in
private equity and mezzanine investments. Triangle Capital
Corporation was incorporated on October 10, 2006 and is based in
Raleigh, North Carolina.
BECTON DICKINSON: Bid to Junk Industriens Class Suit Pending
------------------------------------------------------------
Becton, Dickinson and Company said in its Form 10-Q Report filed
with the Securities and Exchange Commission on August 5, 2021, for
the quarterly period ended June 30, 2021, that the motion to
dismiss the putative class action suit entitled, Industriens
Pensionsforsikring v. Becton, Dickinson and Company, et al., is
pending
On February 27, 2020, a putative class action captioned Kabak v.
Becton, Dickinson and Company, et al., Civ. No. 2:20-cv-02155 (SRC)
(CLW), now captioned Industriens Pensionsforsikring v. Becton,
Dickinson and Company, et al., was filed in the U.S. District Court
for the District of New Jersey against the Company and certain of
its officers.
The complaint, which purports to be brought on behalf of all
persons (other than defendants) who purchased or otherwise acquired
the Company's common stock from November 5, 2019 through February
5, 2020, asserts claims for purported violations of Sections 10 and
20 of the Securities Exchange Act of 1934 and Securities and
Exchange Commission Rule 10b-5 promulgated thereunder, and seeks,
among other things, damages and costs.
The complaint alleges that defendants concealed material
information regarding AlarisTM infusion pumps, including that (1)
certain pumps exhibited software errors, (2) the Company was
investing in remediation efforts as opposed to other enhancements
and (3) the Company was thus reasonably likely to recall certain
pumps and/or experience regulatory delays.
These alleged omissions, the complaint asserts, rendered certain
public statements about the Company's business, operations and
prospects false or misleading, causing investors to purchase stock
at an inflated price.
The plaintiff filed a second amended complaint to add certain
additional factual allegations on February 3, 2021, which the
company moved to dismiss on March 19, 2021.
Briefing on the Company's motion to dismiss was concluded in June
2021.
The Company believes the claims are without merit and intends to
vigorously defend this action.
Becton, Dickinson and Company develops, manufactures, and sells
medical supplies, devices, laboratory equipment, and diagnostic
products worldwide. Becton, Dickinson and Company was founded in
1897 and is based in Franklin Lakes, New Jersey.
BECTON DICKINSON: Defends 23,590 Hernia Product Liability Claims
----------------------------------------------------------------
Becton, Dickinson and Company said in its Form 10-Q Report filed
with the Securities and Exchange Commission on August 5, 2021, for
the quarterly period ended June 30, 2021, that as of June 30, 2021,
the Company is defending approximately 23,590 product liability
claims involving the Company's line of hernia repair devices
("Hernia Product Claims").
The majority of those claims are currently pending in a coordinated
proceeding in Rhode Island State Court and in a federal
multi-district litigation (MDL) established in the Southern
District of Ohio, but claims are also pending in other state and/or
federal court jurisdictions.
In addition, those claims include multiple putative class actions
in Canada. Generally, the Hernia Product Claims seek damages for
personal injury allegedly resulting from use of the products. From
time to time, the Company engages in resolution discussions with
plaintiffs' law firms regarding certain of the Hernia Product
Claims, but the Company also intends to vigorously defend Hernia
Product Claims that do not settle, including through litigation.
Trials are scheduled into fiscal year 2022 in various state and/or
federal courts, including one currently scheduled for August 2021
in the MDL and another trial currently scheduled for November 2021
in the Rhode Island State Court.
The Company expects additional trials of Hernia Product Claims to
take place over the next 12 months.
The Company cannot give any assurances that the resolution of the
Hernia Product Claims that have not settled, including asserted and
unasserted claims and the putative class action lawsuits, will not
have a material adverse effect on the Company's business, results
of operations, financial condition and/or liquidity.
Becton, Dickinson and Company develops, manufactures, and sells
medical supplies, devices, laboratory equipment, and diagnostic
products worldwide. Becton, Dickinson and Company was founded in
1897 and is based in Franklin Lakes, New Jersey.
BECTON DICKINSON: Defends 360 Filter Product Liability Claims
-------------------------------------------------------------
Becton, Dickinson and Company said in its Form 10-Q Report filed
with the Securities and Exchange Commission on August 5, 2021, for
the quarterly period ended June 30, 2021, that as of June 30, 2021,
the Company is defending approximately 360 product liability claims
involving the Company's line of inferior vena cava filters.
The majority of those claims were previously pending in an MDL in
the United States District Court for the District of Arizona, but
those MDL claims either have been or are in the process of being,
remanded to various federal jurisdictions.
Filter Product Claims are also pending in various state court
jurisdictions, including a coordinated proceeding in Arizona State
Court. In addition, those claims include putative class actions
filed in the United States and Canada.
The Filter Product Claims generally seek damages for personal
injury allegedly resulting from use of the products. The Company
has limited information regarding the nature and quantity of
certain of the Filter Product Claims.
The Company continues to receive claims and lawsuits and may in
future periods learn additional information regarding other unfiled
or unknown claims, or other lawsuits, which could materially impact
the Company's estimate of the number of claims or lawsuits against
the Company.
On May 31, 2019, the MDL Court ceased accepting direct filings or
transfers into the Filter Product Claims MDL and, as noted above,
remands for non-settled cases have begun and are expected to
continue over the next three months. Federal and state court trials
are scheduled and expected to take place over the next 12 months.
As of June 30, 2021, the Company entered into settlement agreements
and/or settlement agreements in principle for approximately 9,450
cases.
In most product liability litigations (like those described above),
plaintiffs allege a wide variety of claims, ranging from
allegations of serious injury caused by the products to efforts to
obtain compensation notwithstanding the absence of any injury.
In many of these cases, the Company has not yet received and
reviewed complete information regarding the plaintiffs and their
medical conditions and, consequently, is unable to fully evaluate
the claims.
The Company expects that it will receive and review additional
information regarding any remaining unsettled product liability
matters.
Becton, Dickinson and Company develops, manufactures, and sells
medical supplies, devices, laboratory equipment, and diagnostic
products worldwide. Becton, Dickinson and Company was founded in
1897 and is based in Franklin Lakes, New Jersey.
BECTON DICKINSON: Defends 405 Women's Health Product Claims
-----------------------------------------------------------
Becton, Dickinson and Company said in its Form 10-Q Report filed
with the Securities and Exchange Commission on August 5, 2021, for
the quarterly period ended June 30, 2021, that as of June 30, 2021,
the Company is defending approximately 405 product liability claims
involving the Company's line of pelvic mesh devices.
The majority of those claims are currently pending in various
federal court jurisdictions, and a coordinated proceeding in New
Jersey State Court, but claims are also pending in other state
court jurisdictions.
In addition, those claims include putative class actions filed in
the United States. Not included in the figures above are
approximately 835 filed and unfiled claims that have been asserted
or threatened against the Company but lack sufficient information
to determine whether a pelvic mesh device of the Company is
actually at issue.
The claims identified above also include products manufactured by
both the Company and two subsidiaries of Medtronic plc (as
successor in interest to Covidien plc) ("Medtronic"), each a
supplier of the Company. Medtronic has an obligation to defend and
indemnify the Company with respect to any product defect liability
relating to products its subsidiaries had manufactured.
In July 2015, the Company reached an agreement with Medtronic in
which Medtronic agreed to take responsibility for pursuing
settlement of certain of the Women's Health Product Claims that
relate to products distributed by the Company under supply
agreements with Medtronic.
In June 2017, the Company amended the agreement with Medtronic to
transfer responsibility for settlement of additional Women's Health
Product Claims to Medtronic on terms similar to the July 2015
agreement, including with respect to the obligation to make
payments to Medtronic toward these potential settlements.
As of June 30, 2021, the Company has paid Medtronic $160 million
toward these potential settlements.
The Company also may, in its sole discretion, transfer
responsibility for settlement of additional Women's Health Product
Claims to Medtronic on similar terms. The agreements do not resolve
the dispute between the Company and Medtronic with respect to
Women's Health Product Claims that do not settle, if any.
The foregoing lawsuits, unfiled claims, putative class actions, and
other claims, together with claims that have settled or are the
subject of agreements or agreements in principle to settle, are
referred to collectively as the "Women's Health Product Claims."
The Women's Health Product Claims generally seek damages for
personal injury allegedly resulting from use of the products.
As of June 30, 2021, the Company has reached agreements or
agreements in principle with various plaintiffs' law firms to
settle their respective inventories of cases totaling approximately
15,285 of the Women's Health Product Claims.
The Company believes that these Women's Health Product Claims are
not the subject of Medtronic's indemnification obligation.
These settlement agreements and agreements in principle include
unfiled and previously unknown claims held by various plaintiffs'
law firms, which are not included in the approximate number of
lawsuits set forth in the first paragraph of this section.
Each agreement is subject to certain conditions, including
requirements for participation in the proposed settlements by a
certain minimum number of plaintiffs.
The Company continues to engage in discussions with other
plaintiffs' law firms regarding potential resolution of unsettled
Women's Health Product Claims, which may include additional
inventory settlements.
A trial in the New Jersey coordinated proceeding began in March
2018, and in April 2018 a jury entered a verdict against the
Company in the total amount of $68 million ($33 million
compensatory; $35 million punitive).
In March 2021, the Appellate Division of the New Jersey Superior
Court vacated the verdict and ordered a new trial. Plaintiffs have
sought appeal of the reversal to the New Jersey Supreme Court and
the Company has cross-appealed on a separate issue; the court has
not yet advised if it will consider the appeal.
Additional trials of Women's Health Product Claims may take place
over the next 12 months, which could potentially include
consolidated trials.
During the course of engaging in settlement discussions with
plaintiffs' law firms, the Company has learned, and may in future
periods learn, additional information regarding these and other
unfiled claims, or other lawsuits, which could materially impact
the Company's estimate of the number of claims or lawsuits against
the Company.
Becton, Dickinson and Company develops, manufactures, and sells
medical supplies, devices, laboratory equipment, and diagnostic
products worldwide. Becton, Dickinson and Company was founded in
1897 and is based in Franklin Lakes, New Jersey.
BISHOP OF CHARLESTON: Bid to Compel in Tuition Suit Partly Granted
------------------------------------------------------------------
In the case, Tuition Payer 100, Viewed Student Female 200, Viewed
Student Male 300, on behalf of themselves and all others similarly
situated, Plaintiffs v. The Bishop of Charleston, a Corporation
Sole, Bishop England High School, Tortfeasors 1-10, The Bishop of
the Diocese of Charleston, in his official capacity, and Robert
Guglielmone, individually, Defendants, Civil Action No.
2:21-613-RMG (D.S.C.), Judge Richard Mark Gergel of the U.S.
District Court for the District of South Carolina, Charleston
Division, grants in part and denies in part the Defendants' motion
to compel the Plaintiffs to comply with Fed. R. Civ. P. 10 and 17.
The Plaintiffs bring the putative class action against the
Defendants alleging that, for roughly two decades, students at
Bishop England High School ("BEHS") were made to disrobe in locker
rooms which contained "large glass windows" whereby BEHS employees,
agents, and/or others may have viewed students.
The Plaintiffs' complaint identities two putative classes: (a) the
Tuition Class, "consisting of all persons who paid tuition for BEHS
student(s) who at any time from the opening of the school year in
1988 through May 10, 2019 have been subjected to the use of BEHS's
dressing rooms/locker rooms to undress and/or dress, shower, or for
any other activity that would cause the student to be partially or
fully nude, and exposed to the viewing windows," and the (b) Viewed
Class, consisting of "students who during the relevant time period
were required by Defendants to robe and/or disrobe in the view of
third parties."
The Plaintiffs bring the following claims: (1) Viewed
Class--Wrongful Intrusion into Private Affairs; (2) Tuition
Class--Direct Negligence; (3) Tuition Class—Unjust Enrichment;
(4) Tuition Class--Breach of Warranty; (5) Tuition Class and Viewed
Class--Negligent Hiring, Supervision and Retention; (6) Viewed
Class--Negligence.
On Feb. 3, 2021, the Plaintiffs filed the action under fictitious
names in the Court of Common Pleas for Berkeley County.
On March 3, 2021, the Defendants removed the action.
On July 7, 2021, the Defendants moved to require the Plaintiffs to
file an amended complaint in compliance with Fed. R. Civ. P. 10 and
17. The Plaintiffs oppose. The Defendants filed a reply.
Discussion
A plaintiff seeking to proceed anonymously must show that he or she
has a substantial privacy right that outweighs the "customary and
constitutionally-embedded presumption of openness in judicial
proceedings." This presumption of openness is firmly rooted in the
nation's law.
The Plaintiffs have been permitted to proceed under pseudonyms only
under certain circumstances. It is the exceptional case in which a
court allows a party to proceed anonymously, see James v. Jacobson,
6 F.3d 233, 238 (4th Cir.1993) (allowing a party to proceed
anonymously is a "rare dispensation").
When determining whether such an exception is justified, a court
should consider the following factors: (1) whether the
justification asserted by the requesting party is merely to avoid
the annoyance and criticism that may attend any litigation or is to
preserve privacy in a matter of sensitive and highly personal
nature; (2) whether identification poses a risk of retaliatory
physical or mental harm to the requesting party or even more
critically, to innocent non-parties; (3) the ages of the persons
whose privacy interests are sought to be protected; (4) whether the
action is against a governmental or private party; and (5) the risk
of unfairness to the opposing party from allowing an action against
it to proceed anonymously.
As to the Tuition Class, Judge Gergel holds that the James factors
clearly weigh against allowing the Plaintiffs to proceed
anonymously. He finds that the Tuition Class does not allege the
Defendants violated highly sensitive, private matters nor have the
Plaintiffs argued in a non-conclusory manner that the Tuition Class
faces a risk of retaliation if their identities are revealed.
Further, the Tuition Class is likely comprised entirely of adults,
weighing against anonymity. Thus, the Defendants' motion is granted
as to the Tuition Class.
As to the Viewed Class, the Judge finds that the James factors
currently weigh in favor of the Plaintiffs proceeding anonymously.
As alleged in the complaint, at the time they were viewed or
potentially videotaped, members of the Viewed Class were minors, a
fact which favors anonymity. And while the fact the Defendants are
private actors might weigh to some degree against anonymity, the
Judge finds that any potential unfairness against the Defendants
can be mitigated as the Plaintiffs must disclose to the Defendants,
pursuant to the Confidentiality Order entered in the case their
true identities.
Thus, giving extra weight to the fact the allegations regarding the
Viewed Class occurred while putative members were minors, the Judge
finds -- at this stage of the litigation -- that the James factors
favor anonymity. He therefore denies the Defendants' motion as to
the Viewed Class.
Conclusion
For the reasons he stated, Judge Gergel granted in part and denied
in part the Defendants' motion to compel the Plaintiffs to comply
with Fed. R. Civ. P. 10 and 17. He granted the Defendants' motion
to the extent that the Plaintiffs are directed to file an amended
complaint which identifies the named Plaintiffs representing the
Tuition Class. The Defendants' motion is otherwise denied.
A full-text copy of the Court's Aug. 4, 2021 Order & Opinion is
available at https://tinyurl.com/n4y8hav3 from Leagle.com.
BLACKROCK INC: Final Settlement Approval Hearing Set for Oct. 21
----------------------------------------------------------------
BlackRock, Inc. said in its Form 10-Q Report filed with the
Securities and Exchange Commission on August 5, 2021, for the
quarterly period ended June 30, 2021, that final approval of the
settlement in in the Employee 401(k) Plan related suit is currently
scheduled for October 21, 2021. October 21, 2021
On April 5, 2017, BlackRock, Inc., BlackRock Institutional Trust
Company, N.A. ("BTC"), the BlackRock, Inc. Retirement Committee and
various sub-committees, and a BlackRock employee were named as
defendants in a purported class action lawsuit brought in the US
District Court for the Northern District of California by a former
employee on behalf of all participants and beneficiaries in the
BlackRock employee 401(k) Plan (the "Plan") from April 5, 2011 to
the present.
The lawsuit generally alleges that the defendants breached their
duties towards Plan participants in violation of the Employee
Retirement Income Security Act of 1974 by, among other things,
offering investment options that were overly expensive,
underperformed unaffiliated peer funds, focused disproportionately
on active versus passive strategies, and were unduly concentrated
in investment options managed by BlackRock.
On October 18, 2017, the plaintiffs filed an Amended Complaint,
which, among other things, added as defendants certain current and
former members of the BlackRock Retirement and Investment
Committees.
The Amended Complaint also included a new purported class claim on
behalf of investors in certain CTFs managed by BTC. Specifically,
the plaintiffs allege that BTC, as fiduciary to the CTFs, engaged
in self-dealing by, most significantly, selecting itself as the
securities lending agent on terms that the plaintiffs claim were
excessive.
The Amended Complaint also alleged that BlackRock took undue risks
in its management of securities lending cash reinvestment vehicles
during the financial crisis.
On August 23, 2018, the court granted permission to the plaintiffs
to file a Second Amended Complaint ("SAC") which added as
defendants the BlackRock, Inc. Management Development and
Compensation Committee, the Plan's independent investment
consultant and the Plan's Administrative Committee and its members.
On October 22, 2018, BlackRock filed a motion to dismiss the SAC,
and on June 3, 2019, the plaintiffs filed a motion seeking to
certify both the Plan and the CTF classes.
On September 3, 2019, the court granted BlackRock's motion to
dismiss part of the plaintiffs' claim seeking to recover alleged
losses in the securities lending vehicles but denied the motion to
dismiss in all other respects. On February 11, 2020, the court
denied the plaintiffs' motion to certify the CTF class and granted
their motion to certify the Plan class. On April 27, 2020, the
Ninth Circuit denied the plaintiffs' request to immediately appeal
the class certification ruling. On September 24, 2020, the parties
cross-moved for summary judgment, both of which were denied on
January 12, 2021.
On February 5, 2021, the parties reached a settlement in principle
for $9.65 million which, if approved by the court, will resolve the
lawsuit.
On March 23, 2021, the plaintiffs filed a motion for preliminary
approval of the settlement, which was granted on July 12, 2021.
A hearing where the court will consider final approval of the
settlement is currently scheduled for October 21, 2021.
BlackRock, Inc. provides investment management services to
institutional clients and to retail investors through various
investment vehicles. The Company manages funds, as well as offers
risk management services. BlackRock serves governments, companies,
and foundations worldwide. The company is based in New York, New
York.
BLUECITY HOLDINGS: Vincent Wong Law Reminds of Sept. 17 Deadline
----------------------------------------------------------------
The Law Offices of Vincent Wong on Aug. 15 disclosed that class
actions have commenced on behalf of certain shareholders in the
following companies. If you suffered a loss you have until the lead
plaintiff deadline to request that the court appoint you as lead
plaintiff. There will be no obligation or cost to you.
Bluecity Holdings Limited (NASDAQ:BLCT)
If you suffered a loss, contact us
at:https://www.wongesq.com/pslra-1/bluecity-holdings-limited-loss-submission-form?prid=18560&wire=1
Lead Plaintiff Deadline: September 17, 2021
This lawsuit is on behalf of all persons and entities, other than
Defendants, who purchased or otherwise acquired BlueCity American
Depositary Shares pursuant and/or traceable to the Offering
Documents issued in connection with the Company's initial public
offering conducted on or about July 8, 2020.
Allegations against BLCT include that: (1) Defendants had
overstated BlueCity's business and financial prospects; (2) the
Company was ill-equipped to absorb the costs of becoming a publicly
traded company, including IPO- and growth-related costs; (3) as a
result of all the foregoing, Defendants had misrepresented the
Company's capability for sustainable growth; and (4) as a result,
the Offering Documents were materially false or misleading and/or
failed to state information required to be stated therein.
Ardelyx, Inc. (NASDAQ:ARDX)
If you suffered a loss, contact us
at:https://www.wongesq.com/pslra-1/ardelyx-inc-loss-submission-form?prid=18560&wire=1
Lead Plaintiff Deadline: September 28, 2021
Class Period: August 6, 2020 - July 19, 2021
Allegations against ARDX include that: 1) the Company overstated
the likelihood that tenapanor would be approved by the Food and
Drug Administration ("FDA"); and 2) Defendants possessed, were in
control over, and as a result, knew that the data submitted to
support the New Drug Application was insufficient in that it showed
a lack of clinical relevance of the drug's treatment effect, making
it foreseeably likely that the FDA would not approve the drug.
Concho Resources Inc. (NYSE: ]CXO)
If you suffered a loss, contact us
at:https://www.wongesq.com/pslra-1/concho-resources-inc-loss-submission-form?prid=18560&wire=1
Lead Plaintiff Deadline: September 28, 2021
Class Period: February 21, 2018 - July 31, 2019
Allegations against CXO include that: (1) the well spacing at
Dominator was aggressive and highly risky, and premised on no
reasonable basis to believe it would work as intended; (2) Concho's
practice of implementing tighter well spacing was not relegated to
a handful of "tests" and therefore more widespread than the market
was led to believe; (3) it was known or recklessly disregarded that
any measures to mitigate well spacing risks were non-existent and
or/impossible; (4) these risks had manifested during the Class
Period, causing underground well interference and permanently
decreasing production, forcing the Company to scale back production
targets and adopt more conservative spacing measures in its other
projects; (5) it would take multiple quarters to unwind the impacts
of the widespread well spacing failure; and (6) as a result of the
foregoing, the Company's public statements were materially false
and misleading at all relevant times.
To learn more contact Vincent Wong, Esq. either via email
vw@wongesq.com or by telephone at 212.425.1140.
Vincent Wong, Esq. is an experienced attorney who has represented
investors in securities litigations involving financial fraud and
violations of shareholder rights. Attorney advertising. Prior
results do not guarantee similar outcomes.
CONTACT:
Vincent Wong, Esq.
39 East Broadway
Suite 304
New York, NY 10002
Tel. 212.425.1140
Fax. 866.699.3880
E-Mail: vw@wongesq.com [GN]
BLUEGREEN VACATIONS: Bid for Class Cert. in Johansen Suit Pending
-----------------------------------------------------------------
Bluegreen Vacations Holding Corporation said in its Form 10-Q
Report filed with the Securities and Exchange Commission on August
4, 2021, for the quarterly period ended June 30, 2021, that the
motion for class certification in the purported class action suit
initiated by Kenneth Johansen, is pending.
On July 14, 2020, Kenneth Johansen, individually and on behalf of
all others similarly situated, filed a purported class action
against Bluegreen Vacations Unlimited (BVU) for alleged violations
of the Telephone Consumer Protection Act (TCPA).
Specifically, the named plaintiff alleges that he received numerous
telemarketing calls from BVU while he was on the National Do Not
Call Registry.
Bluegreen filed a motion to dismiss, and plaintiff in response
filed an amended complaint on September 18, 2020.
On February 18, 2021, plaintiff filed a motion for class
certification seeking to certify a class of thousands of individual
proposed class members.
On April 15, 2021 a court-ordered mediation was conducted at which
time the parties were not able to resolve the lawsuit.
Bluegreen has opposed the class certification and is vigorously
defending the action.
Bluegreen Vacations Holding Corp is a vacation ownership company.
The Company markets and sells vacation ownership interests (VOIs)
and manages resorts in popular leisure and urban destinations.
Bluegreen Vacations serves customers worldwide. The company is
based in Boca Raton, Florida.
BLUEGREEN VACATIONS: Class Certification Bid in Landon Pending
--------------------------------------------------------------
Bluegreen Vacations Holding Corporation said in its Form 10-Q
Report filed with the Securities and Exchange Commission on August
4, 2021, for the quarterly period ended June 30, 2021, that the
motion for class certification filed in the purported class action
suit initiated by Melissa S. Landon, Edward P. Landon, Shane Auxier
and Mu Hpare, is still pending.
On June 28, 2018, Melissa S. Landon, Edward P. Landon, Shane Auxier
and Mu Hpare, individually and on behalf of all others similarly
situated, filed a purported class action lawsuit against Bluegreen
and Bluegreen Vacations Unlimited ("BVU") asserting claims for
alleged violations of the Wisconsin Timeshare Act, Wisconsin law
prohibiting illegal referral selling, and Wisconsin law prohibiting
illegal attorney's fee provisions.
Plaintiffs' allegations include that Bluegreen failed to disclose
the identity of the seller of real property at the beginning of
Bluegreen's initial contact with the purchaser; that the defendants
misrepresented who the seller of the real property was; that the
defendants misrepresented the buyer's right to cancel; that the
defendants included an illegal attorney's fee provision in the
sales document(s); that the defendants offered an illegal "today
only" incentive to purchase; and that the defendants utilized an
illegal referral selling program to induce the sale of vacation
ownership interests (VOIs).
Plaintiffs seek certification of a class consisting of all persons
who, in Wisconsin, purchased from BVU one or more VOIs within six
years prior to the filing of this lawsuit.
Plaintiffs seek statutory damages, attorneys' fees and injunctive
relief. Bluegreen and BVU moved to dismiss the case, and on
November 27, 2019, the court issued a ruling granting the motion in
part.
Plaintiffs moved for class certification, which the defendants have
opposed.
The Company believes the lawsuit is without merit and is vigorously
defending the action.
Bluegreen Vacations Holding Corp is a vacation ownership company.
The Company markets and sells vacation ownership interests (VOIs)
and manages resorts in popular leisure and urban destinations.
Bluegreen Vacations serves customers worldwide. The company is
based in Boca Raton, Florida.
BLUEGREEN VACATIONS: Discovery in Boyd Putative Class Suit Ongoing
------------------------------------------------------------------
Bluegreen Vacations Holding Corporation said in its Form 10-Q
Report filed with the Securities and Exchange Commission on August
4, 2021, for the quarterly period ended June 30, 2021, that
discovery is ongoing in the purported class action suit initiated
by Eddie Boyd.
On July 18, 2019, Eddie Boyd, et al. filed an action alleging that
Bluegreen Vacations Unlimited (BVU) and co-defendants violated the
Missouri Merchandise Practices Act for allegedly making false
statements and misrepresentations with respect to the sale of
vacation ownership interests (VOIs).
Plaintiffs further have filed a purported class action allegation
that BVU's charging of an administrative processing fee constitutes
the unauthorized practice of law, and have also asserted that
Bluegreen and its outside counsel engaged in abuse of process by
filing a lawsuit against plaintiffs' counsel (The Montgomery Law
Firm). Plaintiffs seek monetary damages, attorneys' fees and
injunctive relief.
On August 31, 2020, the court certified a class regarding the
unauthorized practice of law claim and dismissed the claims
regarding abuse of process.
On January 11, 2021, the Court issued an order that the class
members are not entitled to rescission of their contracts because
they failed to plead fraud in the inducement.
Discovery is ongoing.
Bluegreen believes the lawsuit is without merit and intends to move
to decertify the class and for summary judgment.
Bluegreen Vacations Holding Corp is a vacation ownership company.
The Company markets and sells vacation ownership interests (VOIs)
and manages resorts in popular leisure and urban destinations.
Bluegreen Vacations serves customers worldwide. The company is
based in Boca Raton, Florida.
BLUEGREEN VACATIONS: Wijesinha Purported Class Suit Underway
------------------------------------------------------------
Bluegreen Vacations Holding Corporation said in its Form 10-Q
Report filed with the Securities and Exchange Commission on August
4, 2021, for the quarterly period ended June 30, 2021, that
Bluegreen Vacations Unlimited (BVU) continues to defend a purported
class action suit initiated by Shehan Wijesinha.
On January 7, 2019, Shehan Wijesinha filed a purported class action
lawsuit alleging violations of the Telephone Consumer Protection
Act (the "TCPA"). It is alleged that BVU called plaintiff's cell
phone for telemarketing purposes using an automated dialing system,
and that plaintiff did not give BVU his express written consent to
do so.
Plaintiff seeks certification of a class comprised of other persons
in the United States who received similar calls from or on behalf
of BVU without the person's consent.
Plaintiff seeks monetary damages, attorneys' fees and injunctive
relief. Bluegreen believes the lawsuit is without merit and intends
to vigorously defend the action.
On July 15, 2019, the court entered an order staying this case
pending a ruling from the Federal Communications Commission
clarifying the definition of an automatic telephone dialing system
under the TCPA and the decision of the Eleventh Circuit in a
separate action brought against a vacation ownership interest (VOI)
company by a plaintiff alleging violations of the TCPA.
On January 7, 2020, the Eleventh Circuit issued a ruling consistent
with BVU's position, and on June 26, 2020, the Federal
Communications Commission also issued a favorable ruling.
The case was stayed pending the United States Supreme Court's
decision in Facebook, Inc. v. Duguid.
On April 1, 2021, the Supreme Court issued decision on the Facebook
case which was favorable to Bluegreen's position that an automatic
telephone dialing system was not used in this case.
Bluegreen believes the ruling disposes of the plaintiff's claim and
filed a Notice of Supplemental Authority advising the court of the
ruling.
Bluegreen Vacations Holding Corp is a vacation ownership company.
The Company markets and sells vacation ownership interests and
manages resorts in popular leisure and urban destinations.
Bluegreen Vacations serves customers worldwide. The company is
based in Boca Raton, Florida.
BOCHASANWASI AKSHAR: Sued for Allegedly Underpaying Workers
-----------------------------------------------------------
Priyanka Jain, writing for Star-Ledger, reports that service and
volunteerism are cherished ideals in faith traditions around the
world. In the United States, these ideals hold a special status at
the federal level through the R-1 visa program, which issues
temporary visas for individuals to work within their religious
community as a minister, in a religious vocation, or in a religious
occupation.
The May raid on a Hindu temple in New Jersey, however, shows that
the program isn't always used as Congress intended.
According to a lawsuit filed on behalf of more than 200 workers
from the Robbinsville, New Jersey temple, Bochasanwasi Akshar
Purushottam Swaminarayan Sanstha, a Hindu sect known as BAPS,
underpaid and exploited its workers in a multiyear construction
project to build one of the largest Hindu temples in the world.
BAPS vehemently denied the allegation, claiming that the workers
were 'religious volunteers.' The implication inherent in their
response is a dangerous one that abuses the R-1 visa program,
undermines U.S. labor standards, and maligns the practice of
genuine, religious volunteerism.
The idea of service is that some human acts are not motivated by
monetary gain. When a volunteer offers their time to participate in
a community's life and practices, the labor involved in such work
is an expression of their attachment and sense of belonging to that
community. Even if a token payment is provided, voluntary work is
not performed based on an expectation that the payment will be
equivalent in value to the labor, skills, or time invested by the
volunteer. On the other hand, wage labor denotes an economic
relationship between employer and employee, where labor is
exchanged for payment at a market rate.
Neither term -- volunteerism nor waged work -- accurately describes
what happened at the temple.
The lawsuit alleges that BAPS misrepresented waged workers as
religious volunteers, in order to push their wage levels and work
conditions below the bare minimum level of fairness and humane
conditions codified in state and federal labor legislation. Workers
described grueling 87-hour workweeks consisting of stone carving
and other construction work. They received minimal days off and
were paid $1.20 per hour. Their passports were confiscated and they
were not allowed to leave the temple site.
Furthermore, the R-1 visa program requires visa holders to be
members of the religious denomination sponsoring their visa for at
least two years prior to application. BAPS represents a very
specific Hindu sect whose followers mainly come from the upper
caste, Gujarati communities in the U.S. and other parts of the
world. However, the workers at the site belong to poor Dalit
communities, who have been historically oppressed in India's
infamous caste system. Although some of the workers are Hindu, not
all of them identify as such. Neither do they subscribe to the BAPS
religious order.
For decades, these artistic laboring communities have been building
temples for BAPS and other Hindu sects with their skill and hard
work, but strictly as a form of livelihood and economic survival,
not as an expression of their faith in BAPS religious
denomination.
BAPS supporters here and abroad have denounced the raid and class
action as an attack on seva, the Hindu tradition of selfless
volunteerism and service, which BAPS argues is the backbone of its
religious order. However, it is disingenuous to invoke religious
service to obscure worker exploitation and to deny workers fair
compensation.
The lawsuit and raid are not an attack on religious volunteerism or
any faith group. To the contrary, these actions can help maintain
the sanctity of religious service across all religions, by weeding
out instances where legal exemptions made for faith groups are
being misused by some to circumvent compliance with laws that are
designed to protect vulnerable people.
Numerous unions, worker rights organizations, and Dalit rights
groups in the U.S. and in India have expressed solidarity with the
workers rescued from the New Jersey site. Religious organizations,
including many Hindu American groups, have organized in support of
the workers as well. Now it is incumbent on all people of faith,
especially the thousands of Hindu Americans who enthusiastically
volunteer their time and service at BAPS temples and community
events, to see the critical distinction between their voluntary
service and the hard labor performed by the workers who build BAPS
temples.
Ignoring or obfuscating the foundational difference between
voluntarism and waged work will exacerbate the oppression faced by
workers and harm the sanctity of bona fide religious volunteerism
and service. [GN]
BOK FINANCIAL: Bid to Nix 401k Plan Related Suit vs. Unit Pending
-----------------------------------------------------------------
BOK Financial Corporation said in its Form 10-Q Report filed with
the Securities and Exchange Commission on August 4, 2021, for the
quarterly period ended June 30, 2021, that the motion to dismiss
the putative class action suit related to BOKF, NA 401k Plan, is
pending.
On March 7, 2020, three former employees sued BOKF, NA, the Plan
Committee of the BOKF, NA 401k Plan, and Cavanal Hill Investment
Management, Inc., a subsidiary of BOKF, NA, alleging that the
Defendants included proprietary investment products as investment
options in the BOKF, NA 401k Plan, whose fees were too high and
performance too low, for the purpose of earning fees.
The action is brought as a putative class action on behalf of all
Plan Participants.
The action is pending on the defendants' motion to dismiss.
Management is advised by counsel that a loss is not probable and
that the loss, if any, cannot be reasonably estimated.
No further updates were provided in the Company's SEC report.
BOK Financial Corporation operates as the financial holding company
for BOKF, NA that provides various financial products and services
in Oklahoma, Texas, New Mexico, Northwest Arkansas, Colorado,
Arizona, and Kansas/Missouri. It operates through three segments:
Commercial Banking, Consumer Banking, and Wealth Management. BOK
Financial Corporation was founded in 1910 and is headquartered in
Tulsa, Oklahoma.
BOK FINANCIAL: Bondholders' Putative Class Action Remains Stayed
----------------------------------------------------------------
BOK Financial Corporation said in its Form 10-Q Report filed with
the Securities and Exchange Commission on August 4, 2021, for the
quarterly period ended June 30, 2021, that the class action in New
Jersey initiated by two bondholders, is still stayed.
On August 26, 2016, BOKF, NA was sued in the United States District
Court for New Jersey by two bondholders in a putative class action
on behalf of all holders of the bonds alleging BOKF, NA
participated in the fraudulent sale of securities by the
principals.
The New Jersey Federal District Action remains stayed with no
current deadlines pending.
On September 14, 2016, BOKF, NA was sued in the District Court of
Tulsa County, Oklahoma by 19 bondholders alleging BOKF, NA
participated in the fraudulent sale of securities by the
principals.
The Tulsa County District Court Action is pending on BOKF, NA’s
motion to dismiss the plaintiff's Third Amended Petition.
No further updates were provided in the Company's SEC report.
BOK Financial Corporation operates as the financial holding company
for BOKF, NA that provides various financial products and services
in Oklahoma, Texas, New Mexico, Northwest Arkansas, Colorado,
Arizona, and Kansas/Missouri. It operates through three segments:
Commercial Banking, Consumer Banking, and Wealth Management. BOK
Financial Corporation was founded in 1910 and is headquartered in
Tulsa, Oklahoma.
BOK FINANCIAL: Dismissal of Extended Overdraft Fees Suit Appealed
-----------------------------------------------------------------
BOK Financial Corporation said in its Form 10-Q Report filed with
the Securities and Exchange Commission on August 4, 2021, for the
quarterly period ended June 30, 2021, that the appeal in the
putative class action suit related to extended overdraft fees
charged by the bank, is pending.
On March 7, 2017, a plaintiff filed a putative class action in the
United States District Court for the Northern District of Texas
alleging an extended overdraft fee charged by BOKF, NA is interest
and exceeds permitted rates.
On September 18, 2018, the District Court dismissed the Texas
action and the plaintiff appealed the dismissal to the United
States Court of Appeals for the Fifth Circuit which heard argument
on October 8, 2019.
On August 22, 2018, a plaintiff filed a second putative class
action in the United States District Court for New Mexico making
the same allegations as the Texas action.
The District Court dismissed the plaintiff's action.
The plaintiff has appealed to the United States Court of Appeals
for the Tenth Circuit.
Management is advised by counsel that a loss is not probable in
either the now dismissed Texas action or the New Mexico action and
that the loss, if any, cannot be reasonably estimated.
No further updates were provided in the Company's SEC report.
BOK Financial Corporation operates as the financial holding company
for BOKF, NA that provides various financial products and services
in Oklahoma, Texas, New Mexico, Northwest Arkansas, Colorado,
Arizona, and Kansas/Missouri. It operates through three segments:
Commercial Banking, Consumer Banking, and Wealth Management. BOK
Financial Corporation was founded in 1910 and is headquartered in
Tulsa, Oklahoma.
BOWL AMERICA: Faces Zucker Suit Over Inadequate Merger
------------------------------------------------------
ANITA G. ZUCKER; TRUSTEE OF THE ANITA G. ZUCKER TRUST DATED MARCH
20, 2007; and ANITA G. ZUCKER AS TRUSTEE OF THE ARTICLE 6 MARITAL
TRUST, UNDER THE FIRST AMENDED AND RESTATED JERRY ZUCKER REVOCABLE
TRUST DATED APRIL 2, 2007, individually and on behalf of all others
similarly situated, Plaintiffs v. BOWL AMERICA, INC.; BOWLERO
CORP.; DUFF & PHELPS SECURITIES LLC; CHERYL A. DRAGOO; ALLAN L.
SHER; MERLE FABIAN; GLORIA M. BRAGG; NANCY E. HULL; and RUTH
MACKLIN, Defendants, Case No. 1:21-cv-01967-SAG (D. Md., Aug. 4,
2021) is a shareholder class action challenging the unfair,
misleading, and grossly inadequate merger between the Defendants,
Bowl America and Bowlero.
The Plaintiffs allege in the complaint that instead of leading Bowl
America into the future following a temporary shutdown that was
caused by the COVID-19 pandemic, the Board of Directors elected to
quit; betraying their shareholders, and seeking to liquidate their
personal holdings at the earliest opportunity through a forced sale
of the Company at a discount to its market price and far below its
intrinsic value, while simultaneously issuing a materially false
and misleading Proxy Statement on Schedule 14A dated July 13, 2021
(the "Merger Proxy") -- and breaching their fiduciary duties in the
process. Certain of the Director Defendants have complete control
over the Company and control a majority of the votes on the merger
largely by virtue of their holdings of Class B stock which entitles
them to 10 votes per share, while the Plaintiffs and similarly
situated class members hold shares of Class A stock entitling them
to just 1 vote per share, says the suit.
Allegedly, the merger is the result of a self-dealing transaction
entered into by certain controlling stockholders, the Defendants
Macklin, Hull and Fabian. The merger price of $44 million dollars
is grossly unfair to stockholders as just the unencumbered real
estate owned by Bowl America has a value in excess of $50 million
dollars. Both Duff & Phelps, the Company's financial advisor, and
Bowlero, the acquirer, provided substantial assistance to and aided
and abetted the Director Defendants' breaches of fiduciary duties
in connection with the merger.
Bowl America Incorporated provides recreation service. The Company
offers food and beverages, game rooms, bowling, rental lockers, and
playroom facilities. [BN]
The Plaintiffs are represented by:
Daniel S. Sommers, Esq.
COHEN MILSTEIN SELLERS & TOLL PLLC
1100 New York Ave. NW, Fifth Floor
Washington, D.C. 20005
Telephone: (202) 408-4600
Facsimile: (202) 408-4699
Email: dsommers@cohenmilstein.com
-and-
Richard A. Speirs, Esq.
Amy Miller, Esq.
COHEN MILSTEIN SELLERS & TOLL PLLC
88 Pine Street, 14 th Floor
New York, NY 10005
Telephone: (212) 838-7797
Facsimile: (212) 838-7745
Email: rspeirs@cohenmilstein.com
amiller@cohenmillstein.com
-and-
Brett S. Krantz, Esq.
Derek P. Hartman, Esq.
KOHRMAN JACKSON & KRANTZ LLP
One Cleveland Center, 29th Floor
1375 East Ninth Street
Cleveland, OH 44114
Telephone: (216) 696-8700
Facsimile: (216) 621-6536
Email: bk@kjk.com
mdr@kjk.com
dph@kjk.com
BP EXPLORATION: Court Enters Summary Judgment in Bucano BELO Suit
-----------------------------------------------------------------
In the case, WILLIAM BUCANO v. BP EXPLORATION & PRODUCTION, INC.,
ET AL., SECTION "F," Civil Action No. 19-13185 (E.D. La.), Judge
Martin L.C. Feldman of the U.S. District Court for the Eastern
District of Louisiana granted the Defendants' motion for summary
judgment.
The pro se Plaintiff in the Back-End Litigation Option ("BELO")
case claims that his assistance in the Deepwater Horizon clean-up
effort exposed him to harmful substances which in turn caused him
to develop multiple myeloma. His theory is, of course, plausible in
the abstract, Judge Feldman holds. But as the Court, the Fifth
Circuit, and at least nine other Sections of the Court have
uniformly held with regard to BELO plaintiffs in the Plaintiff's
position, "absent expert testimony, a BELO plaintiff cannot meet
his burden of proof on causation."
Because the Plaintiff has failed to identify a causation expert in
the case, the Judge holds that the Plaintiff cannot meet his burden
of proof and the Defendants are entitled to judgment as a matter of
law.
Therefore, the Defendants' motion for summary judgment is granted.
The Plaintiff's claims are dismissed with prejudice.
A full-text copy of the Court's Aug. 4, 2021 Order & Reasons is
available at https://tinyurl.com/hkba9fb9 from Leagle.com.
CAMPING WORLD: Seeks Initial Approval of Woodings Settlement
------------------------------------------------------------
Camping World Holdings, Inc. said in its Form 10-Q Report filed
with the Securities and Exchange Commission on August 4, 2021, for
the quarterly period ended June 30, 2021, that the parties in
Woodings v. FreedomRoads, LLC, executed the long-form settlement
agreement and filed a motion seeking preliminary approval of the
settlement from the court.
On May 28, 2020, Kamela Woodings, in her representative capacity
under the Private Attorney General Action ("Woodings PAGA
Complaint") filed a lawsuit styled Woodings v. FreedomRoads, LLC in
Los Angeles County Superior Court against FreedomRoads, LLC in
which she alleged that she and the putative class members often
performed off-the-clock work for which they were not adequately
compensated, and alleged the following causes of action: Violation
of California Labor Code Sections 2698, et seq, (Private Attorney
General Act of 2004), which includes allegations of (1) Failure to
Pay Minimum Wage, (2) Failure to Pay Overtime, (3) Failure to
Provide Meal Periods, (4) Failure to Provide Rest Breaks, (5)
Failure to Timely Pay Wage Upon Termination, (6) Failure to Timely
Pay Wages During Employment, (7) Failure to Provide Complete And
Accurate Wage Statements, and (8) Failure to Keep Accurate Business
Records. The Woodings PAGA Complaint seeks civil penalties and
attorneys' fees and costs pursuant to California Labor Code Section
2699.
On June 25, 2020, Woodings filed a class action complaint styled
Woodings v. FreedomRoads, LLC in Los Angeles County Superior Court
against FreedomRoads, LLC in which Woodings alleged that she and
the putative class members, all of FreedomRoads, LLC's non-exempt
California employees, were not appropriately compensated for all
wages earned in the form of commission, and that she and the
putative class members often performed off-the-clock work for which
they were not adequately compensated. Woodings also alleged the
following causes of action: (1) Violation of California Labor Code
Sections 1194, 1197, and 1197.1 (unpaid minimum wages); (2)
Violation of California Labor Code Sections 1198 (unpaid overtime);
(3) Violation of California Labor Code Section 226.7 (unpaid meal
period premiums); (4) Violation of California Labor Code Section
226.7 (unpaid rest period premiums); (5) Violation of California
Labor Code Sections 201 and 202 (final wages not timely paid); (6)
Violation of California Labor Code Section 226(a) (non-compliant
wage statements); (7) Fraud; (8) Negligent Misrepresentation; (9)
Breach of Contract; (10) Accounting; and (11) Violation of
California Business and Professions Code Sections 17200, et seq.,
with the following sub-claims of (a) Failure to Pay Overtime, (b)
Failure to Provide Meal Periods, (c) Failure to Provide Rest
Periods, (d) Failure to Pay Minimum Wages, (e) Failure to Timely
Wage Upon Termination, (f) Failure to Timely Pay Wages During
Employment, (g) Failure to Keep Complete and Accurate Payroll
Records, and (h) Failure to Pay Commissions, seeking certification
as a class action, monetary damages including general unpaid wages,
unpaid wages at overtime wage rates, premium wages for meal and
rest breaks not provided, general and special damages, actual,
consequential and incidental losses and damages, statutory wage
penalties, punitive damages, pre-judgment interest, attorneys' fees
and costs, liquidated damages, and non-monetary damages including
an accounting of FreedomRoads, LLC's revenues, costs and profits in
connection with each sale of goods made by the putative class
members and the appointment of a receiver to receive, manage and
distribute any funds disgorged from FreedomRoads, LLC as may be
determined to have been wrongly acquired by FreedomRoads, LLC, and
any other and further relief the court deems just and proper
("Woodings Class Action").
On August 6, 2020, the Woodings Class Action was removed to the
U.S. District Court for the Central District of California. On
August 27, 2020, Woodings amended the Woodings Class Action to add
a second plaintiff, Jodi Dormaier, representing a Washington
subclass of all non-exempt FreedomRoads, LLC employees, in an
amended lawsuit styled Kamela Woodings and Jodi Dormaier v.
FreedomRoads, LLC.
The Amended Woodings Class Action alleged the following additional
causes of action: Violation of Wash. Rev. Code Sections 49.46.090
and 49.46.090 (failure to pay minimum wage); Violation of Wash.
Rev. Code § 49.46.130 (failure to pay overtime); Violation of
Wash. Rev. Code Sections 49.12.020 (failure to provide meal
breaks); Violation of Wash. Rev. Code Sections 49.12.020 (failure
to provide rest breaks); Violation of Wash. Rev. Code Sections
49.48.010 (payment of wages upon termination); and Violation of
Wash. Rev. Code Sections 49.52.050 (willful exemplary damages)
seeking class certification, damages and restitution for all unpaid
wages and other injuries to Woodings, Dormaier, and the putative
class, pre-judgment interest, declaratory judgment establishing a
violation of California Labor Code, California Business and
Professional Code Sections 17200, et seq., Revised Code of
Washington and other laws of the States of California and
Washington, and public policy, compensatory damages including lost
wages, earnings, liquidated damages, and other employee benefits
together with interest, restitution, recovery of all money, actual
damages and all other sums of money owed to Woodings, Dormaier, and
the putative class members, together with interest, an accounting
of FreedomRoads, LLC's revenues, costs, and profits in connection
with each sale of goods and services made by Woodings, Dormaier,
and the putative class, and reasonable attorneys' fees and costs,
and any other and further relief the court deems just and proper.
On January 18, 2021, the parties entered into a preliminary
agreement to settle the Amended Woodings Class Action and the
Woodings PAGA Complaint subject to the terms of a long-form
settlement agreement to be executed by the parties and approval by
the courts.
On July 26, 2021, the parties executed the long-form settlement
agreement and filed a motion seeking preliminary approval of the
settlement from the court.
As of June 30, 2021, the Company had a reserve totaling $4.0
million for estimated losses related to this matter, which is
consistent with the preliminary settlement amount.
Camping World Holdings, Inc., through its subsidiaries, operates as
an outdoor and camping retailer. The company operates through three
segments: Consumer Services and Plans, Dealership, and Retail.
Camping World Holdings, Inc. was founded in 1966 and is
headquartered in Lincolnshire, Illinois.
CANADA: Sued Over Abuse of Indigenous Patients at TB Hospitals
--------------------------------------------------------------
Elizabeth St. Philip, Avis Favaro and Ben Cousins, writing for
CTVNews.ca, report that in a year of reckoning for the legacy of
Canada's residential schools, a new class-action lawsuit is
exposing the alleged torment Indigenous people faced at medical
facilities specifically built for them.
According to the Indian Residential School History and Dialogue
Centre at the University of British Columbia, these so-called
"Indian hospitals" formally began in the 1930s as a way of tackling
high rates of tuberculosis (TB) among Indigenous people, but were
chronically understaffed and ended up using "experimental
treatment" on their patients.
Ann Hardy is the lead plaintiff in a $1.1-billion class-action
lawsuit against the federal government alleging "widespread and
common sexual abuse" by hospital staff at these facilities,
relating to her time at Edmonton's Charles Camsell Hospital.
"I think that people need to know that this happened in our
hospitals, it happened recently and we need to acknowledge it,"
Hardy told CTV News.
"I know that sometimes Canadians think they're just hearing too
much of it, and 'Why can't we just get over it?' and I think we're
not going to be able to, in my case, until we fully expose that
this happened."
The Charles Camsell Hospital, the largest such hospital in Canada,
began treating Indigenous people for TB in 1945 and ultimately
closed in 1996. There is currently a radar search for possible
unmarked graves on the property, similar to those investigations at
the sites of former residential schools across the country.
Hardy was transported 700 kilometres from her home to the facility
when she contracted TB in 1969. While at the hospital, Hardy said
hospital staff sexually abused her and she witnessed the sexual
abuse of other patients.
"The medical staff that would come in that was rooming this child
would just pull the curtain across to separate us," she said. "I
could hear everything that was going on."
"It was horrifying, just horrifying and I had to lay there and
listen."
According to the statement of claim, filed on behalf of survivors
from 31 Indian hospitals across Canada, the patients were
segregated from the rest of the population in "substandard, ill
equipped, overcrowded and inadequately staffed" facilities that did
not compare to other medical facilities of the time. The claim also
alleges "widespread, common and systemic physical and sexual
abuse," including food deprivation, beatings with sticks, physical
restraint for months at a time and requiring patients "to eat their
own vomit."
In addition, the claim alleges that patients were not given access
to an antibiotic TB medication that became available in the 1940s,
which would've allowed them to be treated at home.
"This case was commenced to bring to light the awful experiences
thousands of Indigenous people who were segregated from the rest of
the population and allegedly subjected to horrific treatment," said
Jonathan Ptak, a lawyer with Koskie Minsky LLP in Toronto who filed
the claim.
While the hospital is closed now, Hardy says the memories from her
time there still haunt her.
"The sexual abuse that I carried with me for so many years, without
being able to talk about it to anybody," she said. "That had the
most lasting impact on my life and probably coloured my judgement
in so many ways."
Maureen Lux, a history professor at Brock University who authored a
book on Canadian Indian hospitals, said plenty other patients at
these facilities faced similar torment.
"They would take children who wouldn't stay in bed and put plaster
casts on both legs with a bar in between, so that they could not
move," she said. "Other children were physically restrained in
their beds and this -- of course -- made children particularly
vulnerable to staff."
Lux added that patients were arrested if they tried to leave.
"Indigenous people were required to see a doctor, they were
required to go to a hospital, and they were required to stay in
hospital against their will until they were discharged," she said.
The allegations listed in the lawsuit have not been tested in
court.
In a statement, Carine Midy, a spokesperson for Crown-Indigenous
Relations and Northern Affairs Canada, said the government is
"working collaboratively" with Hardy and her legal team to find a
"meaningful resolution" to the matter and that the discussion are
ongoing.
"The mistreatment of Indigenous Peoples is a tragic and shameful
part of Canada's history, whose impacts are still felt today," she
added in the statement. "Canada deeply regrets past actions and
policies that harmed Indigenous children, their families and
communities, and is committed to reconciliation and laying the
foundation for intergenerational healing."
"Canada is committed to resolving claims of this nature outside of
the courts. Negotiated agreements and outcomes are preferred
wherever possible as it allows the parties to go beyond the
remedies that can be granted by the courts and explore concrete
ways to address past harms." [GN]
CENTERPOINT ENERGY: Court Set to Rule on Appeal Over Suit Dismissal
-------------------------------------------------------------------
CenterPoint Energy Resources Corp. said in its Form 10-Q Report
filed with the Securities and Exchange Commission on August 5,
2021, for the quarterly period ended June 30, 2021, that the U.S.
Court of Appeals for the Seventh Circuit heard oral arguments in
September 2020, and a ruling is expected in 2021.
On February 1, 2019, pursuant to the Merger Agreement, CenterPoint
Energy consummated the previously announced Merger and acquired
Vectren Corporation for approximately $6 billion in cash. On the
Merger Date, Vectren became a wholly-owned subsidiary of
CenterPoint Energy.
With respect to the Merger, in July 2018, seven separate lawsuits
were filed against Vectren and the individual directors of
Vectren's Board of Directors in the U.S. District Court for the
Southern District of Indiana.
These lawsuits alleged violations of Sections 14(a) of the Exchange
Act and SEC Rule 14a-9 on the grounds that the Vectren Proxy
Statement filed on June 18, 2018 was materially incomplete because
it omitted material information concerning the Merger.
In August 2018, the seven lawsuits were consolidated, and the Court
denied the plaintiffs' request for a preliminary injunction. In
October 2018, the plaintiffs filed their Consolidated Amended Class
Action Complaint.
In December 2018, two plaintiffs voluntarily dismissed their
lawsuits. In September 2019, the court granted the defendants'
motion to dismiss and dismissed the remaining plaintiffs' claims
with prejudice, which the plaintiffs appealed in October 2019.
The U.S. Court of Appeals for the Seventh Circuit heard oral
arguments in September 2020, and a ruling is expected in 2021.
The defendants believe that the allegations asserted are without
merit and intend to vigorously defend themselves against the claims
raised. CenterPoint Energy does not expect the ultimate outcome of
this matter to have a material adverse effect on its financial
condition, results of operations or cash flows.
CenterPoint Energy Resources Corp. wholesales natural gas and
energy products. The Company gathers, processes, and treats natural
gas and electricity, as well as provides administrative support.
CenterPoint Energy Resources operates in the United States. The
company is based in Houston, Texas.
CHARLOTTE, NC: Bid for Judgment on Pleadings in Hensley Suit OK'd
-----------------------------------------------------------------
In the case, JOHNATHAN S. HENSLEY, Plaintiff v. CITY OF CHARLOTTE,
Defendant, Civil Action No. 3:20-CV-00482-KDB-DSC (W.D.N.C.), Judge
Kenneth D. Bell of the U.S. District Court for the Western District
of North Carolina, Charlotte Division:
(i) denied without prejudice the City's Motion to Dismiss
Plaintiff's Complaint;
(ii) granted the City's Motion for Judgment on the Pleadings;
and
(iii) denied as moot the City's Motion to Strike.
Defendant City of Charlotte is a North Carolina municipal
corporation, chartered by the General Assembly of North Carolina,
organized and operating under the laws of North Carolina. The
Charlotte-Mecklenburg Police Department ("CMPD") is a component of
the City. North Carolina law enforcement officers, including CMPD
officers, are required to document reportable vehicle crashes on a
standard form promulgated by the North Carolina Department of Motor
Vehicles ("NCDMV") known as a DMV-349. When a DMV-349 has been
completed by a N.C. law enforcement officer, it typically contains
the following personal information about the drivers involved in
the accident: name, date of birth, gender, residence address, and
NCDMV driver's license number.
Plaintiff Hensley was involved in a motorcycle accident in
Charlotte, North Carolina on Nov. 22, 2017. The resulting DMV-349
prepared by the responding CMPD officer ("Accident Report")
contained Mr. Hensley's personal information including his address,
showing a nine-digit zip code; his date of birth; his North
Carolina driver's license number; and his telephone number. Hensley
alleges that he did not provide his driver's license number or
nine-digit zip code to the investigating CMPD officer, so he
contends that the officer necessarily obtained this information
from NCDMV records.
Beginning in 2007 (or earlier), the City has placed one or more
unredacted copies of each DMV-349 "recently received" on the front
desk of its records division so that the forms are available to the
public. The Plaintiff alleges that the City is aware that multiple
people come to the Records Division each business day to review
DMV-349 reports, including for marketing purposes. However, the
City does not maintain any log or record identifying which accident
reports have been looked at, the persons or entities that have
reviewed any accident reports or the purpose for which any report
was reviewed.
Also, the City contracted with PoliceReports US ("PRUS"), a company
that was later purchased by LexisNexis Claims Solutions, to make
DMV-349s available to the public on a LexisNexis website for
viewing or to download. Pursuant to that contract, DMV-349s were
made available by the City to PRUS/LexisNexis "subject to the
obligations of federal law."
The Plaintiff contends that the City made copies of his Accident
Report containing his personal information available to the public
at both the CMPD records division and through the LexisNexis
website in violation of the Driver's Privacy Protection Act
("DPPA"). Beyond the allegation that the Accident Report was
"available to the public," the Complaint does not allege that a
member of the public who viewed Hensley's Accident Report at the
records division solicited the Plaintiff. Rather, the Complaint
specifically alleges that "through the City's contract with
PRUS/LexisNexis and the Website, the Plaintiff's name, address and
driver's license number was unlawfully disclosed to one or more
internet users who obtained the name to use in targeted direct mail
solicitation."
Based on this alleged disclosure, the Plaintiff filed the action on
Sept. 1, 2020 seeking liquidated damages and injunctive relief
under the DPPA for himself and a putative class of others who the
Plaintiff claims were similarly wronged. After the Defendant filed
its Answer on Oct. 27, 2020, the Plaintiff filed a Motion for
Preliminary Injunction, which the Court denied on Dec. 1, 2020. In
the course of that briefing, it was revealed that the City is "no
longer making DMV-349 accident reports containing DPPA protected
personal information available to the public."
Discussion
The matter is before the Court on Defendant City of Charlotte's
Motion to Dismiss Plaintiff's Complaint and Motion for Judgment on
the Pleadings and Motion to Strike. The City argues that judgment
should be entered in its favor or the action should be dismissed on
several grounds, including that 1) the Plaintiff does not allege
and cannot show he received any solicitation following his traffic
accident based upon an unlawful release of DPPA protected
information by the City; 2) as a subordinate division of the State,
the City is not a "person" and thus is not subject to a private
cause of action under the DPPA; and 3) the Plaintiff lacks Article
III standing thereby depriving the Court of subject matter
jurisdiction.
Because Judge Bell agrees with the City that the pleadings do not
plausibly allege a viable DPPA claim, he need not rely on or decide
the remaining arguments. He finds that the Plaintiff's allegations
that he received marketing solicitations from law firms as a result
of the improper disclosure of his personal information on the
PRUS/LexisNexis website does not plausibly state a DPPA claim
against the City. And, with respect to the potential disclosure of
the Plaintiff's accident report from the CMPD counter, he says,
there is admittedly no record of which accident reports were viewed
by any member of the public nor has Plaintiff specifically alleged
-- in the relevant pleadings -- that he received a solicitation as
a result of the disclosure of DPPA protected personal information
from that physical location rather than the PRUS/LexisNexis
website. So, the Plaintiff has failed to plausibly plead a DPPA
violation against the City, and the City is entitled to judgment in
its favor on the pleadings.
Having determined that the City is entitled to judgment on the
pleadings based on the failure to plausibly allege a viable DPPA
claim, Judge Bell need not decide if the City is a "person" that
may be found liable under the DPPA. Although he continues to
question whether there is a compelling basis either in the text of
the statute or its purpose to treat liability for the improper
disclosure of the same accident report differently based on whether
it is disclosed by the North Carolina DMV or another agency of the
State down the street such as the City of Charlotte, the Judge
holds there is no guiding authority in this circuit and the weight
of authority outside the circuit holds that a city can be a
"person" under the DPPA.
Finally, Judge Bell need not and does not reach the City's
jurisdictional challenge to the Complaint. He says, the evidence
which the Court may properly consider in ruling on the Rule
12(b)(1) motion is different and might include the evidentiary
declarations related to the Farrin law firm discussed. Accordingly,
having determined that the Plaintiff is not entitled to proceed
based on the inadequacy of the pleadings, the Judge declines to
decide if the City's jurisdictional challenge should be resolved
facially or factually and if factually whether the equivocal
declarations discussed above are sufficient to establish the
Plaintiff's standing to pursue the action.
Order
Based on the foregoing, Judge Bell concludes that the Plaintiff has
not plausibly alleged in the relevant pleadings that he was the
victim of a wrongful disclosure of his personal information by the
City in violation of the DPPA. Thus, he grants the City's motion
for judgment on the pleadings. In light of that ruling, the Judge
need not and does not reach the City's jurisdictional challenge to
the Plaintiff's Complaint in its motion to dismiss or its motion to
strike and accordingly denies those motions without prejudice or as
moot.
Accordingly, the City's Motion for Judgment on the Pleadings is
granted; the City's Motion to Dismiss is denied without prejudice;
and the City's Motion to Strike is denied as moot. The Clerk is
directed to close the matter in accordance with the Order, mooting
the Parties' pending motion to extend certain scheduling order
deadlines.
A full-text copy of the Court's Aug. 4, 2021 Order is available at
https://tinyurl.com/pptfjpjn from Leagle.com.
CITIGROUP INC: San Diego Putative Class Action Underway
-------------------------------------------------------
Citigroup Inc. said in its Form 10-Q Report filed with the
Securities and Exchange Commission on August 4, 2021, for the
quarterly period ended June 30, 2021, that on June 2, 2021, the
Board of Directors of the San Diego Association of Governments,
acting as the San Diego County Regional Transportation Commission,
filed a putative class action similar to and against the same
defendants named in the already pending nationwide consolidated
class action captioned CITY OF PHILADELPHIA v. BANK OF AMERICA
CORP., ET AL. and MAYOR AND CITY COUNCIL OF BALTIMORE v. BANK OF
AMERICA CORP., ET AL.
Citigroup Inc., a diversified financial services holding company,
provides various financial products and services for consumers,
corporations, governments, and institutions in North America, Latin
America, Asia, Europe, the Middle East, and Africa. The company
operates through two segments, Global Consumer Banking and
Institutional Clients Group. Citigroup Inc. was founded in 1812 and
is headquartered in New York, New York.
COINBASE GLOBAL: Faces Klein Suit Over Drop in Share Price
----------------------------------------------------------
GABBY KLEIN, individually and on behalf of all others similarly
situated, Plaintiff v. COINBASE GLOBAL, INC.; BRIAN ARMSTRONG;
ALESIA J. HAAS; JENNIFER N. JONES; SUROJIT CHATTERJEE; PAUL GREWAL;
MARC L. ANDREESSEN; FREDERICK ERNEST EHRSAM III; KATHRYN HAUN;
KELLY KRAMER; GOKUL RAJARAM; and FRED WILSON, Defendants, Case No.
3:21-cv-06049 (N.D. Cal., Aug. 5, 2021) alleges violation of the
Securities Act of 1933.
According to the complaint, the lawsuit is a securities class
action on behalf of all persons and entities that purchased or
otherwise acquired Coinbase Class A common stock pursuant and
traceable to the Company's registration statement and prospectus
(collectively, the "Offering Materials") for the resale of up to
114,850,769 shares of its Class A common stock, whereby Coinbase
began trading as a public company on or around April 14, 2021 (the
"Offering").
On April 14, 2021, Coinbase filed its prospectus on Form 424B4 with
the SEC, which forms part of the Registration Statement. The
Company registered for the resale of up to 114,850,769 shares of
its Class A common stock by registered shareholders. According to
the Registration Statement, the resale of the Company's stock was
not underwritten by any investment bank and the registered
stockholders would purportedly elect whether or not to sell their
shares. Such sales, if any, would be brokerage transactions on the
Nasdaq Global Select Market (the "NASDAQ"), and Coinbase would
purportedly not receive any proceeds from the sale of shares of
Class A common stock by the registered stockholders.
By the commencement of the class action, Coinbase stock traded as
low as $208 per share, a significant decline from its April 14,
2021 opening price of $381 per share.
The Offering Materials were allegedly false and misleading and
omitted to state that, at the time of the Offering: (1) the Company
required a sizeable cash injection; (2) the Company's platform was
susceptible to service-level disruptions, which were increasingly
likely to occur as the Company scaled its services to a larger user
base; and (3) as a result of the foregoing, the Defendants'
positive statements about the Company's business, operations, and
prospects, were materially misleading and/or lacked a reasonable
basis.
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.
Coinbase Global, Inc. is a regulated cryptocurrency company that
provides customers around the world with a platform for buying,
selling, transferring, and storing digital assets. The Company
offers a variety of products and services that enable individuals,
businesses, and developers to participate in the cryptoeconomy.
[BN]
The Plaintiff is represented by:
Jennifer Pafiti, Esq.
POMERANTZ LLP
1100 Glendon Avenue, 15th Floor
Los Angeles, CA 90024
Telephone: (310) 405-7190
Facsimile: (212) 661-8665
E-mail: jpafiti@pomlaw.com
CORNERSTONE BUILDING: Continues to Defend Voigt Class Suit
-----------------------------------------------------------
Cornerstone Building Brands, Inc. said in its Form 10-Q Report
filed with the Securities and Exchange Commission on August 4,
2021, for the quarterly period ended June 30, 2021, that the
company continues to defend a putative class action suit initiated
by Gary D. Voigt.
On November 14, 2018, an individual stockholder, Gary D. Voigt,
filed a putative class action Complaint in the Delaware Court of
Chancery against Clayton Dubilier & Rice, LLC ("CD&R"), Clayton,
Dubilier & Rice Fund VIII, L.P. ("CD&R Fund VIII"), and certain
directors of the Company. Voigt purports to assert claims on behalf
of himself, on behalf of a class of other similarly situated
stockholders of the Company, and derivatively on behalf of the
Company, the nominal defendant.
An Amended Complaint was filed on April 11, 2019. The Amended
Complaint asserts claims for breach of fiduciary duty and unjust
enrichment against CD&R Fund VIII and CD&R, and for breach of
fiduciary duty against twelve director defendants in connection
with the Merger.
Defendants moved to dismiss the Amended Complaint and, on February
10, 2020, the court denied the motions except as to four of the
director defendants.
Voigt seeks damages in an amount to be determined at trial.
No further updates were provided in the Company's SEC report.
Cornerstone Building Brands, Inc., formerly NCI Building Systems,
Inc., incorporated on December 23, 1991, is a manufacturer and
marketer of metal products in North America. The Company's
operating segments include Engineered building systems, Metal
components, Insulated Metal Panels and Metal coil coating. The
company is based in Cary, North Carolina.
COTY INC: S.D. New York Dismisses Garrett-Evans' Amended Complaint
------------------------------------------------------------------
In the case, CRYSTAL GARRETT-EVANS, individually and on behalf of
all others similarly situated, Plaintiffs v. COTY INC., LAMBERTUS
"BART" BECHT, CAMILLO PANE, PIERRE LAUBIES, PATRICE DE TALHOUET,
AND PIERRE-ANDRE TERISSE, Defendants, Case No. 20 CIVIL 7277 (LLS)
(S.D.N.Y.), Judge Louis L. Stanton of the U.S. District Court for
the Southern District of New York granted the Defendants' motion to
dismiss the Amended Complaint.
The Judge finds that the Amended Complaint fails to allege
plausibly omissions. The Amended Class Action Complaint is
dismissed with costs and disbursement to the Defendant according to
law.
A full-text copy of the Court's Aug. 3, 2021 Judgment is available
at https://tinyurl.com/3jzns468 from Leagle.com.
COUSINS GROCERY: Fails to Pay Wages, Vazquez Suit Claims
--------------------------------------------------------
ROBERTO VAZQUEZ, individually and on behalf of all others similarly
situated, Plaintiffs v. COUSINS GROCERY AND GRILL INC. d/b/a
COUSINS DELI., and GUYTREE KULDIP, as individual, Defendants, Case
No. 1:21-cv-04528 (E.D.N.Y., August 11, 2021) brings this
collective action complaint against the Defendants seeking to
recover damages for its alleged egregious violations of the Fair
Labor Standards Act and the New York Labor Law.
The Plaintiff has worked for the Defendants from in or around
August 2015 until in or around June 2021 as a cleaner, food
preparer and dishwasher, and he also perform other miscellaneous
duties.
The Plaintiff asserts that he worked approximately 60 hours or more
per week during his employment with the Defendants. However, the
Defendants denied him of overtime compensation at the rate of one
and one-half times his regular rate of pay for all hours he worked
in excess of 40 per week. In addition, the Defendants failed to pay
him the legally prescribed minimum wage for hours he has worked
from in or around January 2017 until in or around June 2021, as
well as an extra hour or "spread-of-hours" pay at the legally
prescribed minimum wage for each day worked over 10 hours.
Moreover, the Defendants failed to keep payroll records, to provide
wage statements upon each payment of wages, and to post notices of
the minimum wage and overtime requirements in a conspicuous place
at the location of their employment as required by both the FLSA
and NYLL, the Plaintiff asserts.
Cousins Grocery and Grill Inc. d/b/a Cousins Deli. operates a
grocery store and restaurant owned and operated by Guytree Kuldip.
[BN]
The Plaintiff is represented by:
Roman Avshalumov, Esq.
HELEN F. DALTON & ASSOCIATES, P.C.
80-02 Kew Gardens Road, Suite 601
Kew Gardens, NY 11415
Tel: (718) 263-9591
CRICKET WIRELESS: Nationwide Class Certified in Postpichal Suit
---------------------------------------------------------------
In the case, JAMIE POSTPICHAL, et al., Plaintiffs v. CRICKET
WIRELESS, LLC, Defendant, Case No. C 19-07270 WHA (N.D. Cal.),
Judge William Alsup of the U.S. District Court for the Northern
District of California:
(i) denied the Defendant's motions to exclude and disqualify
the Plaintiffs' experts and opposes class certification;
and
(ii) granted the Plaintiffs' motion to certify a class.
In the early 2010s, 4G ranked as the newest development in the
cellular services industry. Cellular service providers other than
Cricket, quickly developed their 4G capabilities to meet the rising
demand for faster cellular and data services. Cricket, however,
lagged behind.
In 2011, Cricket attempted to build out its 4G capabilities by
partnering with LightSquared, "but the FCC rejected LightSquared's
plans to launch its network over concerns that it would interfere
with GPS technology." Cricket attempted a similar third-party 4G
network agreement with Clearwire, but that, too, fell through when
Sprint acquired Clearwire. In the face of $2.8 billion in debt by
mid-2013, Cricket's CEO admitted to the FCC that Cricket had "no
current plans to expand its spectrum holdings in any significant
way or to build commercial facilities outside of its current
network."
By September 2013, Cricket's "newest project: 4G in non-4G was
going strong." This strategy's success led Cricket's Senior Manager
of Business Development to suggest that Cricket "may not need any
other programs" to increase Cricket's customer base. Cricket
higher-ups "recognized that without a clear path to 4G/LTE home
market coverage" the 3G in 4G discrepancy was "not an easy story to
explain." Complaints started to pour in. Cricket representatives
recognized the lack of 4G access conflicted with Cricket's
messaging about 4G phones and 4G plans.
Cricket partnered with Sprint in February 2013 to provide 4G
roaming. This meant that Cricket could have provided access to the
4G network that its customers expected with their 4G phones and 4G
plans. Instead, Cricket saved money by blocking access to Sprint's
4G network for customers within their home markets. Cricket used
the 4G roaming agreement with Sprint to create coverage maps that
depicted a broader 4G roaming network than prior maps that showed
only "a few different isolated areas" with 4G.
By late 2013, Cricket removed the distinction between 3G and 4G
plans, creating a single "Smart Plan." Even the most expensive
Smart Plans would not allow customers that bought a 4G phone in a
non-4G market to access 4G service from their area. Offering an
undated return policy document, Cricket asserts that unhappy
customers could return a phone within seven days at the store where
they purchased the phone. However, fees for plans could not be
refunded.
In 2014, the FCC approved a merger agreement between Cricket and
AT&T. Once AT&T and Cricket effectuated the merger, Cricket began
transferring its customers from Cricket's previous network to the
"New Cricket" network which used AT&T's network to provide broad 4G
coverage.
The Plaintiffs filed the putative class action (the third in a
series of related lawsuits) with over a dozen claims, including
CLRA and RICO claims, concerning events that occurred between 2012
and 2014. They avoided running afoul of the statute of limitations
based on a tolling agreement with Cricket that expired on Nov. 4,
2019, the day the Plaintiffs filed the putative class action.
In February 2020, the Plaintiffs amended the complaint by adding
several new plaintiffs. Cricket moved to dismiss for lack of
personal jurisdiction and improper venue, but a March 2020 order
denied the motion to transfer and found, without prejudice, proper
personal jurisdiction. After the motion to dismiss failed, Cricket
moved to compel arbitration.
The attempt to compel arbitration spiraled into a series of
discovery disputes. Various plaintiffs sought voluntary dismissal.
In December 2020, the motion to compel arbitration succeeded as to
one plaintiff and failed as to another. The order found that, under
Missouri law, Plaintiff Jermaine Thomas assented to arbitration by
continuing to use Cricket's service after receiving two text
messages containing links to Cricket's updated Terms and Conditions
and a warning that the updates included an agreement to arbitrate
disputes. Plaintiff Waters' situation, on the other hand, did not
show consent to arbitrate where Cricket attempted to enforce AT&T's
arbitration agreement in relationship to events that occurred long
before AT&T acquired Cricket. The breadth of AT&T's arbitration
clause rendered it unconscionable and unenforceable.
In December 2020, after the order on the motion to compel
arbitration, the Plaintiffs sought leave to file an amended
complaint with new plaintiffs and just as many claims as the first
complaint). Cricket sought dismissal of the second amended
complaint. A January 2021 order dismissed three plaintiffs with
prejudice, excluded a plaintiff from any potential future class,
and granted leave to file a third amended complaint. The number of
named plaintiffs dwindled to three and only two claims under CLRA
and RICO remained.
Cricket filed a motion to dismiss yet again. The Plaintiff's CLRA
claim garnered a dismissal for lack of notice, but the RICO claim
survived. After the CLRA claim's dismissal and a dispute over her
status as a class member, California Plaintiff Waters' withdrew
herself from the litigation via voluntary dismissal. So, the case
is down to two Plaintiffs and one RICO claim.
The pending motions still before the Court include motions to
exclude and disqualify the Plaintiffs' experts and a motion for
class certification.
The Plaintiffs seek to certify the following class of consumers
(with certain exclusions): All persons in the United States with a
customer address in a geographic market with no Cricket 4G/LTE
network coverage who between Nov. 1, 2012 and Sept. 30, 2014,
purchased from Cricket a 4G/LTE monthly plan for service on Legacy
Cricket's network, or later activated a 4G/LTE plan with the device
for service on Legacy Cricket's network.
Analysis
Certification under FRCP 23(b)(3) is a two-step process. The
Plaintiffs must first show that the class meets the following four
requirements of FRCP 23(a): (1) the class is so numerous that
joinder of all members is impracticable; (2) there are questions of
law or fact common to the class; (3) the claims or defenses of the
representative parties are typical of the claims or defenses of the
class; and (4) the representative parties will fairly and
adequately protect the interests of the class. The Plaintiffs must
next establish "that the questions of law or fact common to class
members predominate over any questions affecting only individual
members, and that a class action is superior to other available
methods for fairly and efficiently adjudicating the controversy."
1. Numerosity
Under Rule 23(a)(1) a proposed class must be "so numerous that
joinder of all members is impracticable." Cricket does not contest
numerosity. The proposed class contains hundreds of thousands of
consumers and easily satisfies the numerosity requirement. Joinder
would be impossible.
2. Adequacy
Judge Alsup finds that Plaintiff Freitas may serve as a class
representative, but that Postpichal may not. Plaintiff Postpichal's
lengthy criminal history -- unlawful gun possession at the age of
18 lead to a misdemeanor conviction -- disqualifies her. He also
finds that the class counsel is adequate in all respects. The
counsel has extensive experience in litigating class actions, are
proficient in the applicable law, and they have the necessary
resources to prosecute the action to the end.
3. Commonality and Predominance
Judge Alsup holds that the Plaintiffs' overcharging theory provides
at least one clear route to classwide damages: Namely, the amount
that Cricket overcharged customers based on the actual value of the
plans and phones. Though the individual class members' damages may
entail some variation based on the type of phone and plan
purchased, the Judge says, these amounts can be discerned from
Cricket's internal records and comparisons to non-4G phones and
plans. Though the Plaintiffs offer two experts to provide methods
of damages calculation based on the overcharging theory, the Judge
relies upon common sense (not the expert reports) in finding that a
feasible classwide methods of damages calculation exists in the
case.
4. Typicality
Rule 23(a)(3) requires that "the claims or defenses of the
representative parties be typical of the claims or defenses of the
class." This ensures that "the interest of the named representative
aligns with the interests of the class.
Judge Alsup finds that Plaintiff Freitas (the last viable class
representative) does present claims typical of the class. She lived
outside Cricket's 4G footprint and bought a 4G phone and plan in
order to get faster service that she never received. Even if her
situation presents some differences from some other class members,
Freitas shares the same theory of liability with other proposed
class members who purchased a 4G phone and 4G plan that did not
deliver 4G. Cricket's conduct stands in the same relation to
Freitas as it does to all other class members who could have paid
for less expensive plans or gone with other carriers but for
Cricket's misleading marketing around 4G coverage.
5. Superiority
Even if common questions predominate, a Rule 23(b)(3) class must
also be the superior method of adjudication, considering: the class
members' interests in individually controlling the prosecution or
defense of separate actions; the extent and nature of any
litigation concerning the controversy already begun by or against
class members; the desirability or undesirability of concentrating
the litigation of the claims in the particular forum; and the
likely difficulties in managing a class action.
Judge Alsup holds that these factors weigh in favor of certifying
the class. First, a class action provides a superior route to
resolution in the case because the claims of individuals would be
relatively small, likely in the range of hundreds of dollars.
Second, while there has been prior litigation around Cricket's 4G
in non-4G markets scheme, those cases are no longer pending.
Neither party suggests those prior cases have either foreclosed or
resolved the claims here at issue.
Third, concentrating the litigation in the state of Cricket's
headquarters also makes sense logistically because certain key
witnesses, such as Cricket executives and employees, likely live
in-state. Fourth, the rights of class members can be vindicated as
a group and nothing suggests that individual class members would
have vastly different or conflicting claims based on the facts.
6. Arbitration
Cricket lays out four means by which class members could have been
bound to arbitrate, including that up until May 2014, Cricket
provided customers a Quick Start guide inside phone boxes that
included an arbitration provision. Cricket suggests that
arbitration provides a superior method of resolving the dispute
because "every class member has the option to engage in cost-free
arbitration" as "they may use AT&T's arbitration clause."
Judge Alsup finds that the various arbitration agreements in the
case do not defeat typicality or superiority. He says, the case
presents common classwide issues as to whether booklets in phone
boxes constituted a legally effective means of imposing an
arbitration agreement on class members, a finding that cuts against
Cricket's typicality argument. Determination may require
state-by-state consideration, but the Court will try to group
sub-issues.
Consumers who agreed to arbitrate based on later iterations of
Cricket's disclosure of arbitrations clause warrant carve outs from
the class. Significantly, the Judge finds convincing that the vast
majority of those with accounts on or after May 22, 2014, will be
bound to arbitrate claims, including those arising even earlier in
the class period. Therefore, no one who had an account after May
22, 2014, may participate in the class. The same reasoning applies
to later revisions to the arbitration provision in 2017. Those who
fell within the class period but were customers in 2017 and
electronically signed terms and conditions containing an
arbitration clause must arbitrate. The Judge adjusts the class
definition to reflect his ruling.
7. Motion to Exclude Experts Mallinson and Browne
Judge Alsup declines to consider the challenges to the Plaintiffs'
experts, Browne and Mallinson, because their reports are not needed
to decide the class certification issue. He denies as moot the
Defendant's motion to exclude Mallinson and Browne. The
admissibility of final expert reports may be reraised at a later
stage.
Conclusion
Judge Alsup certified a nationwide class but modifies the proposed
class definition to account for customers that must be excluded
based on Cricket's arbitration agreements.
The nationwide class is composed of: All persons in the United
States with a customer address in a geographic market with no
Cricket 4G/LTE network coverage who between Nov. 1, 2012 and Sept.
30, 2014, purchased from Cricket a 4G/LTE monthly plan for service
on Legacy Cricket's network, or later activated a 4G/LTE plan with
the device for service on Legacy Cricket's network.
The class excludes: (1) any Cricket customer who continued to use
Cricket receiving the May 22, 2014 text message notification
regarding Cricket's arbitration clause; (2) any Cricket customer
who agreed to Cricket's arbitration provision via electronic
signature after May 2017; (3) any class member that defendant
proves is subject to an arbitration agreement; (4) the Defendant
and its officers, directors, managers, employees, subsidiaries, and
affiliates; (5) any person with a customer address outside of
Cricket's network footprint but in a market with Sprint LTE
coverage;(6) governmental entities; and (7) the judge(s) to whom
this case is assigned and any immediate family members thereof.
Within 14 calendar days, the counsel will submit a proposed form of
notice and a proposed plan of distribution that includes first
class mail.
A full-text copy of the Court's Aug. 4, 2021 Order is available at
https://tinyurl.com/38s9dwu6 from Leagle.com.
CVS HEALTH: Consolidated ERISA Related Suit Underway
----------------------------------------------------
CVS Health Corporation said in its Form 10-Q Report filed with the
Securities and Exchange Commission on August 4, 2021, for the
quarterly period ended June 30, 2021, that the company continues to
defend a consolidated Employee Retirement Income Security Act of
1974 (ERISA) related class action suit.
In August and September 2020, two ERISA class actions were filed in
the U.S. District Court for the District of Connecticut against CVS
Health, Aetna Inc., and several current and former executives,
directors and/or members of Aetna's Compensation and Talent
Management Committee: Radcliffe v. Aetna Inc., et al. and Flaim v.
Aetna Inc., et al.
The plaintiffs in these cases assert a variety of causes of action
premised on allegations that the defendants breached fiduciary
duties and engaged in prohibited transactions relating to
participants in the Aetna 401(k) Plan's investment in company stock
between December 3, 2017 and February 20, 2019, claiming losses
related to the performance of the Company's long-term care pharmacy
(LTC) business unit.
The district court consolidated the actions and the Company is
defending itself against these claims.
The Company also received a related document request pursuant to
ERISA Section 104(b), to which the Company has responded.
CVS Health Corporation, incorporated on August 22, 1996, together
with its subsidiaries, is an integrated pharmacy healthcare
company. The Company provides pharmacy care for the senior
community through Omnicare, Inc. (Omnicare) and Omnicare's
long-term care operations, which include distribution of
pharmaceuticals, related pharmacy consulting and other ancillary
services to chronic care facilities and other care settings. It
operates through three segments: Pharmacy Services, Retail/LTC and
Corporate. The company is based in Woonsocket, Rhode Island.
CVS HEALTH: Drug Pricing Related Suits Underway
-----------------------------------------------
CVS Health Corporation said in its Form 10-Q Report filed with the
Securities and Exchange Commission on August 4, 2021, for the
quarterly period ended June 30, 2021, that the company continues to
defend several putative class action suits related to drug pricing
and its rebate arrangements with drug manufacturers.
The Company is facing multiple lawsuits, including by a State
Attorney General, governmental subdivisions and several putative
class actions, regarding drug pricing and its rebate arrangements
with drug manufacturers.
These complaints, brought under a variety of legal theories,
generally allege that rebate agreements between the drug
manufacturers and pharmacy benefit managements (PBMs) caused
inflated prices for certain drug products.
The Company is defending itself against these claims. The Company
has also received subpoenas, civil investigative demands ("CIDs")
and other requests for documents and information from, and is being
investigated by, Attorneys General of several states and the
District of Columbia regarding its PBM practices, including pricing
and rebates.
The Company has been providing documents and information in
response to these subpoenas, CIDs and requests for information.
CVS Health Corporation, incorporated on August 22, 1996, together
with its subsidiaries, is an integrated pharmacy healthcare
company. The Company provides pharmacy care for the senior
community through Omnicare, Inc. and Omnicare's long-term care
operations, which include distribution of pharmaceuticals, related
pharmacy consulting and other ancillary services to chronic care
facilities and other care settings. It operates through three
segments: Pharmacy Services, Retail/LTC and Corporate. The company
is based in Woonsocket, Rhode Island.
CVS HEALTH: Labourers' Pension Fund Suit Concluded
--------------------------------------------------
CVS Health Corporation said in its Form 10-Q Report filed with the
Securities and Exchange Commission on August 4, 2021, for the
quarterly period ended June 30, 2021, that the consolidated
Labourers' Pension Fund of Central & Eastern Canada suit has now
been concluded.
Beginning in February 2019, multiple class action complaints, as
well as a derivative complaint, were filed by putative plaintiffs
against the Company and certain current and former officers and
directors.
The plaintiffs in these cases assert a variety of causes of action
under federal securities laws that are premised on allegations that
the defendants made certain omissions and misrepresentations
relating to the performance of the Company's long-term care
pharmacy (LTC) business unit.
The Company and its current and former officers and directors are
defending themselves against these claims.
Since filing, several of the cases have been consolidated, and the
first-filed federal case, City of Miami Fire Fighters' and Police
Officers' Retirement Trust, et al. (formerly known as Anarkat), was
dismissed with prejudice in February 2021.
Plaintiffs filed a notice of appeal with the First Circuit after
their motion for reconsideration was denied.
The Company has moved to dismiss the other federal case, In re CVS
Health Corp. Securities Act Litigation (formerly known as
Waterford).
In March 2021, the New York Supreme Court, Appellate Division
(First Department) dismissed the consolidated Labourers' Pension
Fund of Central & Eastern Canada case; plaintiffs' motion for
reargument was denied and this matter is now concluded.
CVS Health Corporation, incorporated on August 22, 1996, together
with its subsidiaries, is an integrated pharmacy healthcare
company. The Company provides pharmacy care for the senior
community through Omnicare, Inc. (Omnicare) and Omnicare's
long-term care operations, which include distribution of
pharmaceuticals, related pharmacy consulting and other ancillary
services to chronic care facilities and other care settings. It
operates through three segments: Pharmacy Services, Retail/LTC and
Corporate. The company is based in Woonsocket, Rhode Island.
CVS HEALTH: Service Provider Related Suit Underway
--------------------------------------------------
CVS Health Corporation said in its Form 10-Q Report filed with the
Securities and Exchange Commission on August 4, 2021, for the
quarterly period ended June 30, 2021, that the company continues to
defend purported class action suits related to the payment of
claims for services rendered to its members by providers with whom
the Company has a contract and with whom the Company does not have
a contract.
The Company is named as a defendant in purported class actions and
individual lawsuits arising out of its practices related to the
payment of claims for services rendered to its members by providers
with whom the Company has a contract and with whom the Company does
not have a contract ("out-of-network providers").
Among other things, these lawsuits allege that the Company paid too
little to its health plan members and/or providers for
out-of-network services and/or otherwise allege that the Company
failed to timely or appropriately pay or administer out-of-network
claims and benefits (including the Company's post payment audit and
collection practices and reductions in payments to providers due to
sequestration).
Other major health insurers are the subject of similar litigation
or have settled similar litigation.
CVS Health Corporation, incorporated on August 22, 1996, together
with its subsidiaries, is an integrated pharmacy healthcare
company. The Company provides pharmacy care for the senior
community through Omnicare, Inc. (Omnicare) and Omnicare's
long-term care operations, which include distribution of
pharmaceuticals, related pharmacy consulting and other ancillary
services to chronic care facilities and other care settings. It
operates through three segments: Pharmacy Services, Retail/LTC and
Corporate. The company is based in Woonsocket, Rhode Island.
DETROIT, MI: Landlords Sue Court, Chief Judge Over Eviction Ban
---------------------------------------------------------------
Oralandar Brand-Williams, writing for The Detroit News, report that
two Detroit landlords filed a lawsuit Aug. 15 against 36th District
Court in Detroit and the court's chief judge for putting a halt to
evictions until Oct. 3.
JPA Holdings LLC and Sandeep Gosal filed a lawsuit against the
court and Chief Judge William McConico for the evictions ban in the
city, calling the move unconstitutional and the "taking of private
property."
"This action is brought to address the taking of private property
by the (judge and 36th District Court) without just compensation,"
the lawsuit claimed. The landlords are seeking class-action
status.
The first federal moratorium on evictions was issued under the
Trump administration in 2020 in an effort to stem the spread of
Covid-19. The moratorium since has been extended five times.
The current ban against evictions was issued Aug. 3, under a
Centers for Disease Control and Prevention order and lasts until
Oct. 3.
McConico announced Aug. 4 that he would start scheduling hearings
for landlords but reversed himself the same day after the CDCissued
an advisement of an extension of the evictions moratorium.
Michigan is among the states that have had "substantial" and
"severe" rates of tranmission of the virus, including the delta
strain.
The landlords argue in the lawsuit that "the District Court has
also commenced to administratively adjourning all hearings
pertaining to Orders of Eviction until after October 3, 2021,
thereby prohibiting any Orders of Eviction from being entered,
regardless of whether a tenant has sought protection under the CDC
order, and regardless of whether a tenant qualifies for protection
under the CDC order."
The landlords claim that the halted evictions amount to "a
compensable taking of plaintiffs' property and property rights
without just compensation in violation of the Fifth Amendment of
the United States Constitution."
"Specifically, the directive to ban all evictions constitutes a
physical taking because it has effected a government authorized
physical invasion, occupation, or appropriation of plaintiffs'
private property, for the government itself or for third parties."
Gosal, according to the lawsuit, sought to remove tenants from a
property he owns in the 16800 block of Lenore. He first went to
36th District Court in March 2020 seeking to evict his tenants.
"He was not seeking money, he just wanted his property back," the
lawsuit said.
Gosal has had his hearing adjourned several times and now must wait
for the moratorium to be lifted to resolve the matter, the lawsuit
said.
JPA Holdings, which has property in the 7400 block of Dolphin
Street, obtained a judgment of possession against the occupants on
Feb. 19, 2020, just prior to pandemic in Michigan.
After more than a year, the 36th District Court entered an Order of
Eviction allowing JPA to take back the Dolphin Street property on
July 28, 2021, but a week later, on Aug. 4, the court prohibited
officers from executing orders of eviction.
JPA owners said the court's orders will result in JPA having to
wait longer "to take back its property and either sell it or put a
new occupant in the home that actually pays rent."
The suit claims ". . . as a practical matter, a property owner has
little ability to collect past due rent from a tenant with little
money, or a tenant that simply moves out at the end of the
moratorium, after occupying the property for months, free of
charge.
The result, the plaintiffs say, "is to keep a property owner from
re-leasing the property to a new tenant, or from even selling the
property as no reasonable person would purchase a property with
occupants that are not obligated to pay rent."
McConico and officials at 36th District Court initially announced
that evictions would go forward because the city's COVID-19
transmission rate was not high enough to meet the CDC's requirement
of substantial and high levels under terms of the eviction
moratorium.
But hours later, 36th District Court officials reversed course,
with CDC data for Aug. 4 showing the seven-day case average in
Wayne County had pushed Michigan's largest county from moderate
spread to substantial. The CDC uses four categories, low, moderate,
substantial and high to measure transmission in counties.
McConico called the lawsuit's claims baseless. "We will vigorously
defend the court and myself," said McConico on Aug. 15.
The judge added that emergency writs for termination of tenancy for
illegal reasons such as threatening a landlord and destruction of
property still are being executed during the pandemic.
"36th District Court has always followed whatever moratorium has
been established" by the federal government and Michigan, such as
those for non-payment of rents when the tenant is protected under
CDC or state compliance, McConico said.
Of Michigan's 83 counties, 38 are now considered to have high
transmission rates and 33 have substantial as of Aug. 14, which
qualifies them for inclusion in the eviction ban. Washtenaw, Wayne
and Macomb counties have substantial rates, and Oakland and
Livingston counties have high transmission rates.
U.S. Rep. Rashida Tlaib, D-Detroit told The Detroit News that
billions of dollars have been earmarked for tenants to get federal
funds for rental assistance.
The Michigan State Housing and Development Authority is
administering $622 million through the COVID Emergency Rental
Assistance program, or CERA. So far, about $110 million has been
distributed to households.
Officials said $404 million needs to be committed in the next two
months. The state's 32,000 outstanding applications represent $200
million in requests, Bach said. That's still $94 million short of
the 65% threshold.
The program covers up to 15 months of back rent along with utility
assistance and an internet stipend for those who qualify.
Applicants must earn below 80% of the area median income, which for
a two-person household in Detroit is $50,240 a year, and claim a
COVID-19-related hardship.
Housing activist Ted Phillips, executive director of the United
Community Housing Coalition, said on Aug. 15 that the lawsuit goes
"above and beyond" what activists would expect landlords to do in
the midst of a pandemic.
Phillips called the lawsuit harmful. He said federal funds are
getting into landlords hands and that the average payment of back
rent is $8,000.
"It is getting better," said Phillips. "A lot of them are getting
paid." [GN]
DIDI GLOBAL: Wolf Popper Reminds of September 7 Deadline
--------------------------------------------------------
Wolf Popper LLP reminds DiDi Global, Inc. (NYSE: DIDI) investors
that federal securities class action lawsuits have been filed in
the United States District Courts for the Central District of
California and Southern District of New York against DiDi and
certain of DiDi's officers, directors, and IPO underwriters. The
deadline for DiDi investors to seek appointment as the lead
plaintiff in the securities class actions is September 7, 2021.
The securities class actions are brought on behalf of investors who
purchased or otherwise acquired (a) DiDi securities between June
30, 2021 and July 21, 2021 (the Class Period) and (b) DiDi American
Depositary Receipts (ADRs) pursuant and/or traceable to DiDi's June
30, 2021 IPO.
The DiDi securities class action litigations allege, among other
things, that the defendants made false and misleading public
statements and 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, DiDi was reasonably likely to incur scrutiny from the
Cybersecurity Administration of China (CAC); (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 DiDi's business, operations, and
prospects, were materially misleading and/or lacked a reasonable
basis.
DiDi calls itself the "world's largest mobility technology
platform" and provides services including ride hailing, taxi
hailing, chauffeur, hitch and other forms of shared mobility. DiDi,
which has been called the "Uber of China," operates in
approximately 4,000 cities, counties, and towns across 17
countries.
On June 30, 2021, DiDi held its initial public offering, selling
316.8 million ADRs at $14.00 per ADR and raising over $4 billion.
Before the market opened on July 2, 2021, the CAC said on its
website that it had launched an investigation into DiDi and that
DiDi wasn't allowed to register new users during the investigation.
The CAC wanted to prevent data security-related risks from DiDi's
gathering of vast amounts of real-time mobility data. As a result
of this news, the price of DiDi ADRs fell $0.87 per ADR, or over
5%, to close at $15.53 per ADR on July 2, 2021.
On Sunday July 4, 2020, the CAC ordered DiDi's app removed from
China-based app stores because the app violated the country's laws
and regulations through the improper collection and usage of user
information. On July 5, 2021, The Wall Street Journal reported that
the CAC suggested to DiDi weeks before DiDi's IPO that DiDi delay
the offering and "conduct a thorough self-examination of its
network security." As a result of this news, on July 6, 2021, the
next trading day after July 2, 2021, the price of DiDi ADRs fell
$3.04 per share, or more than 19.5%, to close at $12.49 per ADR.
On July 12, 2021, before market hours, DiDi issued a press release
and announced, among other things, that the CAC had notified app
stores to take down 25 apps operated by DiDi in China and that DiDi
"expects that the app takedown may have an adverse impact on its
revenue in China." As a result of this news, the price of DiDi ADRs
fell $0.87 per ADR, or more than 7%, and closed at $11.16 per ADR
on July 12, 2021.
On July 22, 2021, Bloomberg reported that Chinese regulators were
considering "serious, perhaps unprecedented, penalties" for DiDi,
"including a fine, suspension of certain operations[,] the
introduction of a state-owned investor" or even "a forced delisting
or withdrawal of [DiDi]'s U.S. shares," and that "Beijing is likely
to impose harsher sanctions on [DiDi] than on Alibaba Group Holding
Ltd., which swallowed a record $2.8 billion fine[.]" As a result of
this news, the price of DiDi's ADRs fell $3.44 per ADR, or nearly
30%, over the next two trading days to close at $8.06 per ADR on
July 23, 2021.
The Private Securities Litigation Reform Act of 1995 permits any
investor who purchased DiDi securities pursuant or traceable to
DiDi's IPO or during the Class Period to ask the court to be
appointed as lead plaintiff in the DiDi securities class action
litigation. A lead plaintiff acts on behalf of all other class
members in directing the class action lawsuit, and can select a law
firm of its choice to litigate the class action lawsuit. A court
will generally appoint as lead plaintiff the movant with the
greatest financial interest in the relief sought by the proposed
class of investors and that is also typical and adequate of the
proposed class. An investor's ability to share in any potential
future recovery obtained in the litigation is not dependent upon
serving as lead plaintiff.
The deadline for DiDi investors to file a motion for appointment as
lead plaintiff is September 7, 2021.
If you wish to serve as lead plaintiff in the DiDi securities class
action litigation or have questions concerning your rights
regarding the DiDi securities class action litigations, please
contact Joshua Ruthizer at (212) 451-9668, (877) 370-7703, or
jruthizer@wolfpopper.com.
Wolf Popper has successfully recovered billions of dollars for
defrauded investors. Wolf Popper's reputation and expertise have
been repeatedly recognized by the courts, which have appointed the
firm to major positions in securities litigation. For more
information about Wolf Popper, please visit the Firm's website at
www.wolfpopper.com.
Attorney Advertising: Prior Results Do Not Guarantee A Similar
Outcome.
Wolf Popper LLP
Joshua Ruthizer
845 Third Avenue
New York, NY 10022
Tel.: (212) 451-9668
Email: jruthizer@wolfpopper.com [GN]
EDGEWELL PERSONAL: Chabla Sues Over Mislabeled Sunscreen Products
-----------------------------------------------------------------
LUIS CHABLA, individually and on behalf of all others similarly
situated, Plaintiff v. EDGEWELL PERSONAL CARE COMPANY; EDGEWELL
PERSONAL CARE BRANDS, LLC; EDGEWELL PERSONAL CARE, LLC; PLAYTEX
PRODUCTS, LLC; and SUN PHARMACEUTICALS, LLC, Defendants, Case No.
1:21-cv-04382-RPK-JRC (E.D.N.Y., Aug. 4, 2021) seeks to remedy the
deceptive and misleading business practices of the Defendants with
respect to the marketing and sale of various sunscreen products
containing benzene, which can cause severe health issues such as
anemia, immune system damage, and cancer.
According to the complaint, the Defendants specifically list both
the active and inactive ingredients of its sunscreen 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.
The Defendants' advertising and marketing campaign is allegedly
false, deceptive, and misleading because the sunscreen products
contain benzene, which the Defendant does not list or mention
anywhere on the products' packaging or labeling. The Plaintiff and
Class Members relied on the Defendants' misrepresentations and
omissions of what is in the products when they purchased them, says
the suit.
Edgewell Personal Care Company operates as a personal care company.
The Company manufactures and distributes feminine, infant, skin,
pet, and sun care products. [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
Telephone: (845) 483-7100
Facsimile: (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
Telephone: (215) 592-1500
E-mail: dmagagna@lfsblaw.com
cschaffer@lfsblaw.com
ELANCO ANIMAL: Pomerantz Law Firm Investigates Securities Claims
----------------------------------------------------------------
Pomerantz LLP is investigating claims on behalf of investors of
Elanco Animal Health Incorporated ("Elanco" or the "Company")
(NYSE:ELAN). Such investors are advised to contact Robert S.
Willoughby at newaction@pomlaw.comor 888-476-6529, ext. 7980.
The investigation concerns whether Elanco and certain of its
officers and/or directors have engaged in securities fraud or other
unlawful business practices.
On August 9, 2021, Elanco issued a press release reporting its
financial results for the second quarter of 2021. Among other
items, Elanco lowered its adjusted EPS forecast to $0.97 - $1.03,
down from the previous guidance of $1.00 to $1.06. In addition,
Elanco disclosed receipt of a U.S. Securities and Exchange
Commission subpoena regarding its channel inventory and sales
practices before mid-2020. On this news, Elanco's stock price fell
sharply during intraday trading on August 9, 2021.
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. See www.pomerantzlaw.com. [GN]
ENERGY TRANSFER: Dismissal of Regency Merger Lawsuit Appealed
-------------------------------------------------------------
Energy Transfer LP said in its Form 10-Q Report filed with the
Securities and Exchange Commission on August 5, 2021, for the
quarterly period ended June 30, 2021, that appeal in the Regency
Merger Litigation, is pending.
On June 10, 2015, Adrian Dieckman, a purported Regency unitholder,
filed a class action complaint related to the Regency-ETO merger in
the Court of Chancery of the State of Delaware, on behalf of
Regency's common unitholders against Regency GP LP, Regency GP LLC,
the company (ET), ETO, Energy Transfer Partners GP, L.P., and the
members of Regency's board of directors.
The Regency Merger Litigation alleges that the Regency Merger
breached the Regency partnership agreement.
On March 29, 2016, the Delaware Court of Chancery granted the
defendants' motion to dismiss the lawsuit in its entirety.
Plaintiff appealed, and the Delaware Supreme Court reversed the
judgment of the Court of Chancery.
Plaintiff then filed an Amended Verified Class Action Complaint,
which defendants moved to dismiss. The Court of Chancery granted in
part and denied in part the motions to dismiss, dismissing the
claims against all defendants other than Regency GP LP and Regency
GP LLC.
The Court of Chancery later granted Plaintiff's unopposed motion
for class certification. Trial was held on December 10-16, 2019,
and a post-trial hearing was held on May 6, 2020. O
n February 15, 2021, the Court of Chancery ruled in favor of the
Regency Defendants on all claims at issue in this litigation,
determined that the Regency Merger was fair and reasonable to
Regency, and denied Plaintiff any relief.
On March 19, 2021, Plaintiff filed a notice of appeal.
The Regency Defendants cannot predict the outcome of this appeal
but intend to vigorously oppose it.
Energy Transfer LP provides energy-related services in the United
States and China. The company owns and operates approximately 9,400
miles of natural gas transportation pipelines and three natural gas
storage facilities in Texas; and approximately 12,200 miles of
interstate natural gas pipelines. The company is based in Dallas,
Texas.
EQUITABLE HOLDINGS: O'Donnell Appeals Dismissal of Class Suit
-------------------------------------------------------------
Equitable Holdings, Inc. said in its Form 10-Q Report filed with
the Securities and Exchange Commission on August 5, 2021, for the
quarterly period ended June 30, 2021, that the appeal in the
putative class action suit initiated by Richard T. O'Donnell, is
pending.
In August 2015, a lawsuit was filed in Connecticut Superior Court
entitled Richard T. O'Donnell, on behalf of himself and all others
similarly situated v. AXA Equitable Life Insurance Company.
This lawsuit is a putative class action on behalf of all persons
who purchased variable annuities from Equitable Financial, which
were subsequently subjected to the volatility management strategy
and who suffered injury as a result thereof.
Plaintiff asserts a claim for breach of contract alleging that
Equitable Financial implemented the volatility management strategy
in violation of applicable law.
Plaintiff seeks an award of damages individually and on a classwide
basis, and costs and disbursements, including attorneys' fees,
expert witness fees and other costs.
In 2015, the case was transferred to the Southern District of New
York and, in 2018, transferred back to Connecticut Superior Court.
In August 2019, the court granted Equitable Financial's motion to
strike, which sought dismissal of the complaint, and in September
2019, Plaintiff filed an Amended Class Action Complaint. Equitable
Financial filed renewed motions to strike and to dismiss and for an
entry of judgment in October 2019.
In August 2020, the court granted Equitable Financial's motion for
entry of judgment.
Plaintiff filed a notice of appeal. The company is vigorously
defending this matter.
Equitable Holdings, Inc. operates as a diversified financial
services company worldwide. It operates through four segments:
Individual Retirement, Group Retirement, Investment Management and
Research, and Protection Solutions. The company was founded in 1859
and is based in New York, New York. AXA Equitable Holdings, Inc. is
a subsidiary of AXA S.A.
On January 14, 2020, the company announced its plans to rebrand as
"Equitable" and to discontinue the use of the "AXA" brand. In
connection with this rebranding, the company removed "AXA" from its
legal entity name, which is now Equitable Holdings, Inc.
EQUITABLE HOLDINGS: Settlement Talks with Brach Plaintiffs Ongoing
------------------------------------------------------------------
Equitable Holdings, Inc. said in its Form 10-Q Report filed with
the Securities and Exchange Commission on August 5, 2021, for the
quarterly period ended June 30, 2021, that the company has
commenced settlement discussions with the Brach class action
plaintiffs through a non-binding mediation process.
In February 2016, a lawsuit was filed in the Southern District of
New York entitled Brach Family Foundation, Inc. v. AXA Equitable
Life Insurance Company.
This lawsuit is a putative class action brought on behalf of all
owners of universal life policies (UL policies) subject to
Equitable Financial's COI rate increase.
In early 2016, Equitable Financial raised COI rates for certain UL
policies issued between 2004 and 2008, which had both issue ages 70
and above and a current face value amount of $1 million and above.
A second putative class action was filed in Arizona in 2017 and
consolidated with the Brach matter.
The consolidated amended class action complaint alleges the
following claims: breach of contract; misrepresentations in
violation of Section 4226 of the New York Insurance Law; violations
of New York General Business Law Section 349; and violations of the
California Unfair Competition Law, and the California Elder Abuse
Statute. Plaintiffs seek: (a) compensatory damages, costs, and,
pre- and post-judgment interest; (b) with respect to their claim
concerning Section 4226, a penalty in the amount of premiums paid
by the plaintiffs and the putative class; and (c) injunctive relief
and attorneys' fees in connection with their statutory claims.
In August 2020, the federal district court issued a decision
certifying nationwide breach of contract and Section 4226 classes,
and a New York State Section 349 class.
Equitable Financial has commenced settlement discussions with the
Brach class action plaintiffs through a non-binding mediation
process.
No assurances can be given about the outcome of that mediation
process.
Separately, a substantial number of policy owners have opted out of
the Brach class action and are not participating in that mediation
process. Most have not yet filed suit. Others filed suit
previously. They include five other federal actions challenging the
COI rate increase that are also pending against Equitable Financial
and have been coordinated with the Brach action for the purposes of
pre-trial activities. They contain allegations similar to those in
the Brach action as well as additional allegations for violations
of various states' consumer protection statutes and common law
fraud. Two actions are also pending against Equitable Financial in
New York state court. Equitable Financial is vigorously defending
each of these matters.
Equitable Holdings, Inc. operates as a diversified financial
services company worldwide. It operates through four segments:
Individual Retirement, Group Retirement, Investment Management and
Research, and Protection Solutions. The company was founded in 1859
and is based in New York, New York. AXA Equitable Holdings, Inc. is
a subsidiary of AXA S.A.
On January 14, 2020, the company announced its plans to rebrand as
"Equitable" and to discontinue the use of the "AXA" brand. In
connection with this rebranding, the company removed "AXA" from its
legal entity name, which is now Equitable Holdings, Inc.
EQUITY BANCSHARES: Bid to Junk Missouri Putative Class Suit Pending
-------------------------------------------------------------------
Equity Bancshares, Inc. said in its Form 10-Q Report filed with the
Securities and Exchange Commission on August 5, 2021, for the
quarterly period ended June 30, 2021, that the motion to dismiss
the amended complaint in the purported class action suit filed in
Missouri federal court, is pending.
Equity Bank is a party to a lawsuit filed on November 5, 2020, in
Missouri federal court on behalf of one of the company's customers,
alleging improperly collected overdraft fees on two separate legal
theories. The plaintiff seeks to have the case certified as a class
action.
The Bank was served on February 2, 2021.
The Company filed a motion to dismiss the claims on April 26, 2021.
In response, the Plaintiff amended its lawsuit and dropped one of
the two claims. The Company filed a motion to dismiss the remaining
claim in the Amended Complaint on June 26, 2021.
The Company believes that the lawsuit is without merit and it
intends to vigorously defend against the claim now asserted.
Equity Bancshares said, "At this time, the Company is unable to
reasonably estimate the outcome of this litigation."
Equity Bancshares, Inc., incorporated on August 23, 2002, is a bank
holding company. The Company's principal activity is the ownership
and management of its subsidiary, Equity Bank. The Bank provides a
range of financial services primarily to businesses and business
owners, as well as individuals through its network of over 49
branches located in Kansas, Missouri, Arkansas and Oklahoma. The
company is based in Wichita, Kansas.
ESSA BANCORP: Discovery Ongoing in Sherman Act Claim
----------------------------------------------------
ESSA Bancorp, Inc. said in its Form 10-Q Report filed with the
Securities and Exchange Commission on August 5, 2021, for the
quarterly period ended June 30, 2021, that discovery is ongoing in
the class action suit related to the company's alleged violations
of the Real Estate Settlement Procedures Act, the Sherman Act, and
the Racketeer Influenced and Corrupt Organizations Act ("RICO").
On May 29, 2020, ESSA Bank & Trust (the Bank) was named as a
defendant in an action commenced by three plaintiffs who will also
seek to pursue this action as a class action on behalf of the
entire class of people similarly situated.
The plaintiffs allege that a bank previously acquired by ESSA
Bancorp received unearned fees and kickbacks from a different title
company than the one involved in the previously discussed
litigation in the process of making loans.
The original complaint alleged violations of the Real Estate
Settlement Procedures Act, the Sherman Act, and RICO.
The plaintiffs filed an Amended Complaint on September 30, 2020
that dropped the RICO claim, but they are continuing to pursue the
Real Estate Settlement Procedures Act and Sherman Act claims.
The Bank moved to dismiss the Sherman Act claim on October 14,
2020, and that motion was denied on April 2, 2021.
The parties are now in the discovery process.
ESSA Bancorp said, "The Bank will continue to defend against
plaintiffs' allegations. To the extent that this matter could
result in exposure to the Bank, the amount of such exposure is not
currently estimable."
ESSA Bancorp, Inc. operates as the holding company for ESSA Bank &
Trust that provides a range of financial services to individuals,
families, and businesses in Pennsylvania. ESSA Bancorp, Inc. was
founded in 1916 and is based in Stroudsburg, Pennsylvania.
ESSA BANCORP: Discovery Ongoing in Suit Against Subsidiary
----------------------------------------------------------
ESSA Bancorp, Inc. said in its Form 10-Q Report filed with the
Securities and Exchange Commission on August 5, 2021, for the
quarterly period ended June 30, 2021, that discovery is ongoing in
the putative class action suit filed against ESSA Bank & Trust
related to the Real Estate Settlement Procedures Act (RESPA).
ESSA Bank & Trust was named as a defendant in an action commenced
on December 8, 2016 by one plaintiff who will also seek to pursue
this action as a class action on behalf of the entire class of
people similarly situated.
The plaintiff alleges that a bank previously acquired by ESSA
Bancorp received unearned fees and kickbacks in the process of
making loans, in violation of the Real Estate Settlement Procedures
Act.
In an order dated January 29, 2018, the district court granted the
Bank's motion to dismiss the case.
The plaintiff appealed the court's ruling. In an opinion and order
dated April 26, 2019, the appellate court reversed the district
court's order dismissing the plaintiff's case against the Bank, and
remanded the case back to the district court in order to continue
the litigation.
The litigation is now proceeding before the district court.
On December 9, 2019, the court permitted an amendment to the
complaint to add two new plaintiffs to the case asserting similar
claims.
On May 21, 2020, the court granted the plaintiffs' motion for class
certification.
In an order dated November 24, 2020, the court referred the case to
a Magistrate Judge to assist in mediation efforts.
The case was stayed while the parties explored the potential for a
negotiated resolution. The parties engaged in mediation but did not
resolve the matter.
The parties are now in the discovery process.
ESSA Bancorp said, "The Bank will continue to defend against
plaintiffs' allegations. To the extent that this matter could
result in exposure to the Bank, the amount of such exposure is not
currently estimable."
ESSA Bancorp, Inc. operates as the holding company for ESSA Bank &
Trust that provides a range of financial services to individuals,
families, and businesses in Pennsylvania. ESSA Bancorp, Inc. was
founded in 1916 and is based in Stroudsburg, Pennsylvania.
EVOLUS INC: Consolidated Jeuveau Related Class Suit Underway
------------------------------------------------------------
Evolus, Inc. said in its Form 10-Q Report filed with the Securities
and Exchange Commission on August 4, 2021, for the quarterly period
ended June 30, 2021, that the company continues to defend a
consolidated putative class action suit entitled, In re Evolus Inc.
Securities Litigation, No. 1:20-cv-08647 (PGG).
On October 16 and 28, 2020, two putative securities class action
complaints were filed in the U.S. District Court for the Southern
District of New York by Evolus shareholders Armin Malakouti and
Clinton Cox, respectively, naming the Company and certain of its
officers as defendants.
The complaints assert violations of Sections 10(b) and 20(a) of the
Securities Exchange Act of 1934 and Rule 10b-5 promulgated
thereunder, claiming that the defendants made false and materially
misleading statements and failed to disclose material adverse facts
related to the Company's acquisition of the right to sell
Jeuveau(R), the ITC Action and risks related to the ITC Action.
The complaints assert a putative class period of February 1, 2019
to July 6, 2020. The court consolidated the actions on November 13,
2020, under the caption In re Evolus Inc. Securities Litigation,
No. 1:20-cv-08647 (PGG).
Four putative shareholders (or groups of shareholders) have since
moved to be appointed lead plaintiff.
Under the court's November 13, 2020 order, defendants need not
move, answer, or otherwise respond to the complaints until 60 days
after a lead plaintiff is appointed and files a consolidated,
amended complaint.
Evolus, Inc. in a performance beauty company with a
customer-centric approach focused on delivering breakthrough
products in the self-pay aesthetic market. The company is based in
Newport Beach, California.
FIGURE 8: Court Certifies Class of Employees in Daniell FLSA Suit
-----------------------------------------------------------------
In the case, JOSEFF DANIELL, individually and on behalf of all
others similarly situated, Plaintiff v. FIGURE 8 COMMUNICATIONS,
INC., Defendant, Case No. 3:20-CV-125 (W.D. Pa.), Judge Kim R.
Gibson of the U.S. District Court for the Western District of
Pennsylvania granted the Plaintiff's Motion for FLSA Collective
Action Certification.
Plaintiff Joseff DaNeill filed the action under the Fair Labor
Standards Act, 29 U.S.C. Section 201, et seq. ("FLSA") and the
Pennsylvania Minimum Wage Act to recover damages for non-payment of
overtime wages for him and all the others similarly situated on
July 2, 2020. Figure 8 filed its Answer on Sept. 11, 2020.
Thereafter, the parties conducted discovery on the issue of
collective action certification.
On March 30, 2021, DaNeill filed the instant Motion for FLSA
Collective Action Certification and brief in support. Figure 8 did
not file a response and the time for filing a response has passed.
Discussion
a. Conditional Collective Action Certification
Mr. DaNeill asks that the Court enters an order conditionally
certifying an FLSA class1 composed of "all current and former
employees of Figure 8 Communications, Inc., who were paid on a
piece rate basis at any time within three (3) years prior to this
action's filing date through the final disposition of this action
at any time from three (3) years before this case was filed to the
present." He also requests that the Court facilitate providing
notice to the potential class members.
Bearing in mind that the Plaintiff need merely make a "modest
factual showing" in order to obtain conditional certification,
Judge Gibson finds that such a showing has been made, and that the
class will be conditionally certified.
In support of his motion, DaNeill presents copies of daily work
records for the week of Jan. 13, 2019, through Jan. 13, 2019, and
his pay statement from that same week showing that: (1) he worked
55.5 hours during that period, (2) he was paid $10 per hour for
24.3 hours of those hours for a total of $245, and (3) he was paid
a piece rate of $608.35. Thus, when combined, he was paid $853.35
for that week. When the total is divided by the total number of
hours worked (55.5), his base hourly rate for that week was $15.38.
The overtime premium for that amount would be $7.69 per hour. That
premium multiplied by the number of overtime hours he worked over
40 hours that week -- 15.5 hours -- would result in a total
overtime premium of $119.16 that Figure 8 owed to DaNeill that he
did not receive.
After consideration of the Complaint and the evidence presented by
DaNeill in support of the motion, Judge Gibson finds that DaNeill
has met his burden at this initial stage to make a "modest factual
showing," and he has produced some evidence "beyond pure
speculation, of a factual nexus between the manner in which Figure
8's alleged policy affected him and the manner in which it affected
other employees."
b. Definition of the Class
The Plaintiff asks that the Court defines the conditionally
certified class to include "all current and former employees of
Figure 8 Communications, Inc., who were paid on a piece rate basis
at any time within three (3) years prior to this action's filing
date through the final disposition of this action at any time from
three (3) years before this case was filed to the present."
Judge Gibson is satisfied that the employees who worked for Figure
8 were similarly situated to the Plaintiff. He modifies the
description of the requested class for clarity, and will
conditionally certify the following class: "All current and former
employees of Figure 8 Communications, Inc., who were paid on a
piece rate basis at any time within the period from three years
prior to July 2, 2020, to July 2, 2020, and at any time within the
period from July 2, 2020, to the present."
c. Facilitation of Notice to the Proposed FLSA Notice Group
To facilitate notice to the class, DaNeill asks the Court to
instruct Figure 8 to provide him with the following information in
a computer readable file: (1) names, (2) mailing addresses, (3)
dates of employment (to determine whether they fall within the
applicable limitation period); (4) piece rate projects worked on
along with contracted piece rate amounts and the actual piece rate
amounts paid; (5) social security numbers (to aid in locating
persons whose notices are returned for failed addresses); (6) and
employee ID numbers and e-mail addresses of each member of the
Proposed FLSA Notice Group. The Plaintiff also requests that the
Court order a 90-day period after the mailing of notice for the
individuals mailed notice to postmark their consent forms to join
the case.
Judge Gibson declines at this point to delineate what information
the Defendant must provide, how notice will be effectuated, or the
timeline for notice. Instead, he requires the parties to meet and
confer to discuss the form and method of notice to the prospective
class members, with any disputes encountered therewith to be dealt
with upon a motion to the Court.
Conclusion
Judge Gibson finds that the Plaintiff's motion to certify the class
conditionally will be granted. The parties are instructed to meet
in order to find a mutually-agreeable means of contacting the
class. An appropriate order follows.
Order
Upon consideration of the Plaintiff's Motion for FLSA Collective
Action Certification, and for the reasons set forth in the
accompanying Memorandum Opinion, the Plaintiff's motion is
granted.
The following class is conditionally certified: "All current and
former employees of Figure 8 Communications, Inc., who were paid on
a piece rate basis at any time within the period from three years
prior to July 2, 2020, to July 2, 2020, and at any time within the
period from July 2, 2020, to the present."
The parties will meet and confer in order to find a
mutually-agreeable means of contacting the class, and by no later
than Sept. 3, 2021, the parties will file a joint motion, and/or
separate motions if they are unable to reach an agreement,
regarding how the class will be contacted.
A full-text copy of the Court's Aug. 3, 2021 Memorandum Opinion is
available at https://tinyurl.com/43m4bcr3 from Leagle.com.
FLUIDIGM CORP: Bid to Dismiss Kong Suit Granted With Leave to Amend
-------------------------------------------------------------------
In the case, KWOK KONG, et al., Plaintiffs v. FLUIDIGM CORPORATION,
et al., Defendants, Case No. 20-cv-06617-PJH (N.D. Cal.), Judge
Phyllis J. Hamilton of the U.S. District Court for the Northern
District of California grants the Defendants' motion to dismiss the
Plaintiff's amended complaint.
Defendant Fluidigm manufactures and markets products and services
that are used by researchers to study health and disease, identify
biomarkers, and accelerate the development of therapies. Fluidigm
is incorporated in Delaware, headquartered in South San Francisco,
and publicly traded on Nasdaq. Defendant Stephen Christopher
Linthwaite has served as Fluidigm's President, CEO, and member of
the Board of Directors since October 2016. Defendant Vikram Jog has
served as Fluidigm's CFO since February 2008. Together, Linthwaite
and Jog are referred to as the "individual defendants."
Lead plaintiff Kwok Kong seeks to represent a class on behalf of
persons and entities that purchased or otherwise acquired Fluidigm
securities during the proposed class period, between Feb. 9, 2019,
and Nov. 5, 2019.
The Plaintiff alleges that the Defendants made materially false or
misleading statements and failed to disclose material adverse facts
about the company's business, operations, and prospects. During the
proposed class period, the Plaintiff alleges that the Defendants'
statements misled the market, artificially inflating the market
price of Fluidigm securities such that the price tumbled upon
subsequent public disclosures, leading to the Plaintiff's losses.
Fluidigm has two main categories of products and services: mass
cytometry and microfluidics (also known as genomics). Since 2017,
the company's revenues from microfluidics decreased and Fluidigm
relied more heavily on increasing revenues from mass cytometry.
Some Fluidigm employees, recognizing the company's exposure on the
mass cytometry front, began voicing concerns in the third quarter
of 2018 that the sales projections for mass cytometry were overly
optimistic.
The allegedly false or misleading statements giving rise to the
lawsuit took place over a series of quarterly reports in 2019. The
company's third-quarter 2019 sales apparently slumped for numerous
reasons, including (1) over-priced products, (2) an overly-general
marketing strategy for highly-specialized products, (3) several
"significant" deals fell through, and (4) significant new
competition.
Cytek, Fluidigm's competitor, gained market share using industry
known, but updated, technology compared to Fluidigm's unique
technology that required customer education and persuasion, leading
to some delays and losses in purchases for Fluidigm. The Plaintiff
alleges that this significant new competition posed a serious
threat to Fluidigm revenues over the period and that the individual
defendants failed to articulate the threat.
The original complaint in the putative class action was filed on
Sept. 9, 2021, by Reena Saintjermain. Saintjermain issued public
notice of the lawsuit, and both Prakash Patel and Kwok Kong filed
motions asking the court to appoint themselves lead plaintiffs. The
Court appointed Kong as lead plaintiff by order entered Dec. 14,
2020.
The amended complaint ("FAC"), the subject of the motion to
dismiss, was filed on Feb. 19, 2021. It identifies the following
causes of action: (1) violations of Section 10(b) of the Exchange
Act and SEC Rule 10b-5 promulgated thereunder (against all the
Defendants), and (2) violations of Section 20(a) of the Exchange
Act (against the individual Defendants).
The Defendants filed the instant motion to dismiss the Plaintiff's
amended complaint on April 5, 2021. Alongside, they filed a "notice
of incorporation by reference and request for judicial notice." The
Plaintiff filed an opposition on May 20, 2021. The Defendants
replied on June 21, 2021.
Request for Judicial Notice
In connection with their motion to dismiss, the Defendants request
judicial notice of press releases, transcripts of quarterly
earnings calls, and reports submitted to the SEC by Fluidigm, all
from the putative class period.
The FAC refers to and quotes from the following SEC reports filed
by Fluidigm: Form 8-K filed on Feb. 7, 2019 (Exhibit 1); excerpts
from Form 10-K for FY 2018 filed on March 18, 2019 (Exhibit 3);
Form 8-K filed on May 2, 2019 (Exhibit 4); excerpts from Form 10-Q
for the Q1 2019 filed on May 7, 2019 (Exhibit 6); Form 8-K filed on
Aug. 1, 2019 (Exhibit 7); excerpts from Form 10-Q for Q2 2019 filed
on Aug. 7, 2019 (Exhibit 9); Form 8-K filed on Nov. 5, 2019
(Exhibit 10); and excerpts from Form 10-K for FY 2019 filed on Feb.
27, 2020 (Exhibit 12). The Plaintiff does not dispute the
authenticity of these documents. Therefore, judicial notice of the
reports is appropriate.
In addition, the FAC refers to and quotes from the following
Fluidigm quarterly earnings calls: Q4 2018 earnings call dated Feb.
7, 2019 (Exhibit 2); Q1 2019 earnings call dated May 2, 2019
(Exhibit 5); Q2 2019 earnings call dated August 1, 2019 (Exhibit
8); and Q3 2019 earnings call dated Nov. 5, 2019 (Exhibit 11). The
Plaintiff does not dispute the authenticity of these transcripts.
Therefore, judicial notice of the transcripts is appropriate.
The Defendants also request judicial notice of SEC reports that are
not referenced in the FAC. They request that the Court takes notice
of the following SEC reports for evaluating their transactions in
company securities: Form 4 filed with the SEC on behalf of Stephen
Christopher Linthwaite on Aug. 27, 2019 (Exhibit 13); excerpts from
Fluidigm's Form DEF 14A, filed with the SEC on April 23, 2019
(Exhibit 14); and excerpts from Fluidigm's Form 10-K for the fiscal
year 2017, filed with the SEC on March 8, 2018 (Exhibit 15). The
Plaintiff does not oppose the Defendants' request. Because their
authenticity is not disputed, and because, as noted, courts
routinely take judicial notice of these types of documents,
judicial notice of these SEC filings is also appropriate.
Finally, the Plaintiff specifically states that while he does not
oppose the Defendants' request for judicial notice, he asserts that
the contents of the documents should not be accepted for the truth
of the matters asserted therein or used to resolve disputes of
fact." Judge Hamilton agrees. To the extent any facts contained
within these documents are reasonably disputed, she does not take
judicial notice of those facts.
Motion to Dismiss
The Defendants seek dismissal of the amended complaint pursuant to
the Private Securities Litigation Reform Act of 1995 ("PSLRA") and
Federal Rules of Civil Procedure 12(b)(6), 8, and 9(b).
The Plaintiff alleges two causes of action: (1) violation of
Section 10(b) of the Exchange Act and SEC Rule 10b-5 promulgated
thereunder (against all the Defendants), and (2) violation of
Section 20(a) of the Exchange Act (against the Individual
Defendants).
The Defendants do not argue that the Plaintiff failed to allege the
following four elements: (1) the connection between the
misrepresentations or omissions and the purchase or sale of a
security, (2) reliance, (3) economic loss, or (4) loss causation.
The Court therefore does not address these elements. However, the
Defendants contend that the Plaintiff failed to allege (1) material
misrepresentations or omissions and (2) scienter.
1. Falsity - material misrepresentations or omissions
In assessing the falsity of defendants' statements, the court
considers whether the allegations establish defendants' statements
as false when made, whether the statements amount to non-actionable
corporate puffery, and whether the PSLRA's Safe Harbor applies to
shield the challenged statements.
a. Whether the CW allegations establish the challenged statements
as false when made
Falsity is adequately alleged "when a plaintiff points to the
defendant's statements that directly contradict what the defendant
knew at that time."
In the case, the Plaintiff contends that the Defendants falsely
represented demand for the company's mass cytometry products while
they knew that sales were projected to decline in light of
increased competition. He argues that the following statements were
misleading where the CW testimony makes clear the Defendants'
knowledge of increased competition: "there's not a fundamental
change in the overall competitive landscape as we see it right now"
and "we can't say that there's many new competitors that are
necessarily extending out the ordering cycle."
However, Judge Hamilton finds that the Plaintiff fails to
specifically connect these statements to the testimony offered by
the CWs regarding what the individual defendants knew and when they
knew it. The general allegations of Cytek's cannibalization of
sales, themselves lacking detail, simply do not suffice to
establish that the Defendants' statements regarding competition
were misleading. The Plaintiff asks the Court to review the
allegations in the FAC in totality to discern the falsity of the
Defendants' statements, but falsity must be pleaded with
particularity. The Plaintiff's FAC fails to establish that the
Defendants' statements were false when made.
b. Whether the statements amount to non-actionable corporate
puffery
The Plaintiff challenges many statements in the Defendants' public
reporting that they argue constituted corporate optimism. Multiple
courts have held that statements of corporate puffery are not
actionable.
In the case, Judge Hamilton finds that several challenged
statements are nothing but optimism regarding growth, market
position, and Fluidigm's sales outlook. These are similar to
statements deemed not actionable by other courts in thiedistrict.
These statements, she says, are not actionable because they are
vague assessments that "represent the 'feel good' speak that
characterizes 'non-actionable puffing.'" Hence, the Plaintiff fails
to plead their falsity.
c. Whether the Safe Harbor applies to shield the challenged
statements
The PSLRA carves out a safe harbor from liability for statements
that are identified as "forward-looking" and are "accompanied by
meaningful cautionary statements." A forward-looking statement is
"any statement regarding (1) financial projections, (2) plans and
objectives of management for future operations, (3) future economic
performance, or (4) the assumptions 'underlying or related to' any
of these issues."
The Defendants argue that many of the statements identified in the
FAC are forward-looking and therefore protected under the Safe
Harbor.
Judge Hamilton agrees. She holds that the statements regarding
future operations and economic opportunities are forward-looking on
their face. The cautionary statements used by the Defendants are
almost identical to language approved by the Ninth Circuit in
instances in which forward-looking statements were immunized by the
PSLRA Safe Harbor. The Defendants' cautionary language is therefore
sufficient to bring the forward-looking statements into the PSLRA
Safe Harbor. The forward-looking statements are not actionable.
2. Scienter
A complaint must "state with particularity facts giving rise to a
strong inference that the defendant acted" with scienter. In
assessing scienter, Judge Hamilton considers whether the testimony
of the CWs gives rise to a strong inference of scienter, whether
the "core operations" inference supports finding scienter, and
whether the allegations of scienter fail holistically.
a. Whether the testimony of the CWs gives rise to strong inference
of scienter
The FAC relies on statements from CWs to plead the requisite mental
state. A complaint relying on CW testimony to establish scienter
must satisfy a two-part test to meet the PSLRA pleading
requirements: (1) CWs must be described with sufficient
particularity to establish reliability and personal knowledge, and
(2) CW statements must themselves be indicative of scienter.
Judge Hamilton finds that the CW allegations are insufficient to
give rise to an inference of scienter. The CW accounts of
Fluidigm's internal strategies allegedly illustrate that there were
issues with over-pricing and an overly general marketing strategy
for the mass cytometry products.
CW3, CW4, and CW5 described how Cytek emerged as a market
competitor, endangering Fluidigm sales. CW1 and CW2 recount
participating in "weekly" or "quarterly" meetings and calls, with
the "content" being "sales performance, and how it was falling
short" and "disappointing sales," which were discussed "every time
we met." CW2, CW3, and CW6 described how the individual defendants
either received or had access to reports and presentations showing
declining sales and losses to competitors.
This narrative, even considered in sum, does not satisfy the second
prong, according to Judge Hamilton. She says an unsuccessful sales
strategy and disagreement within the company over its approach to
selling the mass cytometry line does not support an allegation that
Fluidigm misled investors or was somehow reckless with projections.
The CWs do not relay any statements made by the individual
defendants that are themselves indicative of scienter. The CW
statements do not establish a strong inference of scienter.
b. Whether the "core operations" inference supports finding
scienter
Under the core operations doctrine, a court can infer scienter if
the fraud is based on facts "critical to a business' core
operations," such that the company's key officers would know of
those facts.
Judge Hamilton holds that the pleading of the individual
defendants' behavior does not show such intimate control of the
business that an intent to mislead should be attributed to their
public statements. Further, she finds that the Plaintiff has not
established the falsity of their statements sufficient to conclude
that what the Defendants said publicly misrepresented their
knowledge of the company's challenges. For these reasons, the Judge
concludes that the Plaintiffs have not alleged sufficient facts
supporting the core operations inference -- they fail to show the
fraudulent intent or deliberate recklessness of individual
defendants' statements.
c. Whether the allegations of scienter fail holistically
The Court must also "consider the complaint in its entirety" to
determine if "all of the facts alleged, taken collectively, give
rise to a strong inference of scienter" that is "at least as
compelling as an alternative innocent explanation."
Taking all allegations of the FAC into consideration, Judge
Hamilton finds that together they still do not produce an inference
that is as cogent or compelling as an alternative. Even though
Fluidigm faced competitive challenges and strategic disagreements,
there is no showing of a specific intent to deceive investors. A
fall in Fluidigm's stock price does not alone constitute fraud. The
Judge therefore concludes that, on the whole, the Plaintiff's
narrative of fraud "is simply not as plausible as a nonfraudulent
alternative."
3. Second Cause of Action - Section 20
Congress has established liability in Section 20(a) for "every
person who, directly or indirectly, controls any person liable" for
violations of the securities laws. To establish a prima facie case
under Section 20(a), a plaintiff must prove: (1) "a primary
violation of federal securities law;" and (2) "that the defendant
exercised actual power or control over the primary violator."
Because the Plaintiff has failed to plead a primary securities law
violation, Judge Hamilton holds that the Plaintiff has also failed
to plead a violation of Section 20(a). Accordingly, the Plaintiff
also fails to state a claim under Section 20(a).
Conclusion
For the foregoing reasons, Judge Hamilton grants the Defendants'
request for judicial notice as detailed. She grants the
Defendants' motion to dismiss the Plaintiff's amended complaint
with leave to amend.
The Plaintiff will have 21 days from the date of the Order to file
a second amended complaint to cure the deficiencies noted in the
Order. No new claims or parties may be added without leave of court
or the agreement of all parties. Upon the filing of any amended
complaint, the Plaintiff must also file a redline clearly
demarcating its changes from the existing complaint.
A full-text copy of the Court's Aug. 4, 2021 Order is available at
https://tinyurl.com/n2ctmku5 from Leagle.com.
FMC CORPORATION: Deal in Livent IPO Related Suit Granted Final OK
-----------------------------------------------------------------
FMC Corporation said in its Form 10-Q Report filed with the
Securities and Exchange Commission on August 4, 2021, for the
quarterly period ended June 30, 2021, that a final order and
judgment approving the settlement in the class action suit related
to Livent Corporation's initial public offering (the "Livent IPO")
has been entered.
On October 28, 2020, Defendants entered into a stipulation of
settlement with the state court plaintiffs in which Livent
Corporation, on behalf of the Defendants, will pay $7.4 million to
resolve all claims related to the "Livent IPO".
On October 29, 2020, the state court plaintiffs filed a motion
seeking preliminary approval of the settlement. The court approved
the settlement following a hearing on April 15, 2021 and final
order and judgment was entered on April 26, 2021.
The settlement resolves all pending litigation relating to the
Livent IPO, including the claims in both the state and federal
actions.
There is no financial impact to FMC as a result of the settlement.
FMC Corporation is a diversified chemical company serving
agricultural, consumer and industrial markets globally with
innovative solutions, applications and market-leading products. The
company is based in Philadelphia, Pennsylvania.
GENERAL ELECTRIC: New York Court Narrows Claims in Data Breach Suit
-------------------------------------------------------------------
In the case, In re GE/CBPS DATA BREACH LITIGATION, Case No. 20 Civ.
2903 (KPF) (S.D.N.Y.), Judge Katherine Polk Failla of the U.S.
District Court for the Southern District of New York grants in part
and denies it in part the Defendants' motion to dismiss the
Consolidated Class Action Complaint.
A breach in early 2020 of an email account maintained by Defendant
Canon Business Process Services, Inc. resulted in an unauthorized
third party gaining access to personally identifiable information
("PII") of current and former employees of Defendant General
Electric Co. and their beneficiaries. Canon maintained this
information as a provider of business process and document
management services to GE. Plaintiff Steven Fowler, a former GE
employee, then brought suit against the Defendants on behalf of
himself and all others similarly situated, seeking redress for
harms they allegedly have suffered and are at risk of suffering in
the future as a result of the Data Breach.
Plaintiff Fowler is a citizen of the State of Kentucky. He is a
former employee of Defendant GE. While employed at GE, Fowler was
required to provide sensitive personal information to GE.
Defendant GE is a New York corporation with its headquarters in
Boston, Massachusetts. Defendant Canon is a Delaware corporation
with its principal place of business in the State and City of New
York.
GE contracts with Canon to process documents relating to current
and former GE employees and their beneficiaries. On March 20, 2020,
GE issued a data breach notice stating that in February 2020, one
of Canon's employee email accounts had been breached by an
unauthorized party. Analysis by members of the public suggested
that the Data Breach was the result of a "standard credential
phishing attack or due to credential reuse on another site."
Canon determined that, as a result of the Data Breach, unauthorized
persons may have obtained Fowler's name, employee identification
number, home address, phone number, and email address. After the
Data Breach, Fowler received phishing and scam emails to his
personal email address, and phishing and scam phone calls to his
personal phone number. Other proposed class members allegedly
suffered increased risk of identity theft and fraud; the time and
expense necessary to remediate and mitigate the increased risk of
identity theft and fraud; the inability to use debit cards because
those cards had been canceled, suspended, or otherwise rendered
unusable; fraudulent debit charges; and loss of confidentiality and
value of their personal and financial information.
The Defendants have offered individuals whose data was compromised
identity theft and credit monitoring services at no charge for two
years. However, no compensation or other form of relief has been
provided.
Plaintiff Fowler filed the original complaint in the case, then
captioned Fowler v. Canon Business Process Services, Inc., et al.,
on April 8, 2020. On April 22, 2020, the Court accepted as a
related case Baz v. General Electric Co., et al., No. 20 Civ. 3149,
brought by another former GE employee, Maher Baz. On May 15, 2020,
the Court entered a stipulation (i) consolidating the Fowler and
Baz matters as well as any other related cases then pending or
subsequently filed in, removed to, or transferred to the District,
under case number 20 Civ. 2903 and the case caption In re GE/CBPS
Data Breach Litigation; (ii) providing rules for applications for
appointment as interim class counsel or other designated counsel;
and (iii) setting a scheduling for Fowler and Baz to file a
consolidated complaint and for Defendants to file a responsive
pleading or motion to dismiss.
The counsel for Fowler and Baz each sought appointment as interim
class counsel. On June 10, 2020, Fowler and Baz notified the Court
that they had agreed to proceed cooperatively and were seeking
appointment of their respective counsel as co-lead interim class
counsel. The Court held a hearing on the matter the next day, June
11, 2020, and, per Fowler's and Baz's agreement, appointed Joseph
I. Marchese of Bursor & Fisher, P.A., Gary M. Klinger of Mason
Lietz & Klinger LLP, and Rosemary M. Rivas of Levi & Korsinsky LLP
as co-lead interim class counsel.
Fowler and Baz filed the Consolidated Class Action Complaint
("Complaint"), which is the operative pleading in the matter, on
Aug. 11, 2020. On Oct. 5, 2020, the Defendants filed a pre-motion
letter notifying the Court of their intent to file a motion to
compel Baz to arbitrate his claims and a motion to dismiss the
Complaint. Fowler and Baz filed a responsive letter on Oct. 8,
2020. The Court held a pretrial conference on Oct. 21, 2020, and
set a briefing schedule on the Defendants' motion to compel
arbitration and to stay Fowler's claims pending resolution of the
motion. The efendants filed their motion to compel arbitration on
Nov. 5, 2020. On Dec. 14, 2020, Baz filed a notice of voluntary
dismissal pursuant to Federal Rule of Civil Procedure
41(a)(1)(A)(i). Fowler remained in the case as named plaintiff and
proposed class representative on behalf of the proposed classes.
On Dec. 17, 2020, the Court set a briefing schedule on the
Defendants' anticipated motion to dismiss. In accordance with that
schedule, the Defendants filed their motion and supporting papers
on Jan. 21, 2021; the Plaintiff filed his opposition papers on
March 8, 2021; and the Defendants filed their reply on April 7,
2021. Both the Plaintiff and the Defendants filed notices of
supplemental authority on April 27, 2021, directing the Court to
the same decision by the Second Circuit in McMorris v. Carlos Lopez
& Associates, LLC, 995 F.3d 295 (2d Cir. 2021). The Defendants
filed an additional notice of supplemental authority on June 28,
2021, directing the Court to the Supreme Court's decision in
TransUnion LLC v. Ramirez, 141 S.Ct. 2190 (2021), which notice the
Plaintiff opposed as improper supplemental briefing. The Court
accepted both the Defendants' and the Plaintiff's letters but
barred further submissions.
Discussion
A. The Court Denies Defendants' Motion to Dismiss for Lack of
Subject Matter Jurisdiction
The Defendants first argue that the Complaint must be dismissed
under Federal Rule of Civil Procedure 12(b)(1) because the
Plaintiff lacks Article III standing. They argue that "the
Complaint contains no allegation that the Plaintiff suffered any
actual present injury whatsoever as a result of the Breach," and
that "because none of his sensitive financial or other information
was impacted, the Plaintiff does not and cannot allege that the
risk of future injury is 'certainly impending,' imminent, or
substantially likely."
The Plaintiff responds that he has adequately alleged an imminent
risk of identity theft as a result of the improper accessing of a
document containing his name, signature, email address, mailing
address, phone number, and employee identification number, which
information he claims is "precisely the type of information that
can be used to commit identity theft."
Judge Failla concludes that the Plaintiff has adequately
established his standing to sue. She concludes that the Plaintiff
has made a sufficient showing at this stage of the litigation to
establish his standing under Article III, based on the
circumstances of the Data Breach, the allegations regarding misuse
of PII exposed in the Data Breach, and the potential uses of the
PII to target Plaintiff and other class members for identity theft
or fraud. Accordingly, the Judge denies the Defendants' motion to
dismiss the Complaint under Rule 12(b)(1).
B. The Court Grants in Part and Denies in Part Defendants' Motion
to Dismiss for Failure to State a Claim
The Plaintiff's Complaint asserts claims for negligence, negligence
per se, breach of express contract, breach of implied contract,
violation of New York's General Business Law ("GBL") Section 349,
and breach of fiduciary duty. The Defendants move to dismiss each
of these claims under Federal Rule of Civil Procedure 12(b)(6).
Judge Failla denies the Defendants' motion to dismiss the
Plaintiff's negligence claim, but grants the motion as to his
negligence per se claim. She concludes that the Plaintiff has
sufficiently alleged the elements of a negligence claim -- a duty
of care, a breach of that duty, and cognizable damages resulting
from the breach -- to survive the Defendants' motion to dismiss
under Rule 12(b)(6). She, however, agrees with the Defendants that
the Plaintiff's negligence per se claim is not viable under New
York law because Section 5 does not provide a private right of
action; instead, the FTCA confers exclusive enforcement authority
on the Federal Trade Commission. Accordingly, the Judge dismisses
the Plaintiff's claim for negligence per se.
The Judge grants the Defendants' motion to dismiss the Plaintiff's
claim for breach of express contract, but denies the motion as to
the Plaintiff's claim for implied breach of contract. She finds
that GE's policy documents create implied contracts. She
additionally finds that the Plaintiff has adequately alleged the
remaining elements of his breach of implied contract claim, i.e.,
adequate performance of the contract by the Plaintiff, breach of
contract by GE, and damages.
Because the Plaintiff has not adequately pleaded facts showing
cognizable deceptive conduct in New York, the Judge need not
address the other aspects of a Section 349 claim, i.e.,
consumer-oriented conduct and injury to the Plaintiff and the
proposed class members. She grants the Defendants' motion to
dismiss the Plaintiff's claim under GBL Section 349. The Judge is
unable to discern from the Complaint "the strength of New York's
connection" to the allegedly deceptive conduct at issue. The
conduct could have occurred in New York -- the state of which GE is
a citizen and where Canon has its principal place of business --
but it also could have occurred at GE's headquarters in
Massachusetts or in any number of other locations, e.g., where the
Defendants maintain servers, where employees responsible for human
resource management and/or information technology work, or where
those involved in the Data Breach notification processes work.
Finally, the Judge concludes that the Plaintiff's breach of
fiduciary claim must be dismissed for a different reason: The claim
is duplicative of his breach of implied contract claim, which
survives the Defendants' motion to dismiss." The Judge holds that
the allegations in support of the Plaintiff's breach of implied
contract claim and breach of fiduciary duty claim are identical in
all meaningful respects. Accordingly, he grants the Defendants'
motion to dismiss the Plaintiff's breach of fiduciary duty claim.
Conclusion
For the foregoing reasons, Judge Failla denied the Defendants'
motion to dismiss under Federal Rule of Civil Procedure 12(b)(1).
She granted the Defendants' motion to dismiss under Federal Rule of
Civil Procedure 12(b)(6) with respect to the Plaintiff's claims for
negligence per se, breach of express contract, violation of GBL
Section 349, and breach of fiduciary duty. The Defendants' motion
is denied with respect to the Plaintiff's claims for negligence and
breach of implied contract.
In his opposition brief, the Plaintiff makes a cursory request for
leave to amend should the Court "grant the motion in any respect."
Although Judge Failla acknowledges that Federal Rule of Civil
Procedure 15(a)(2) embodies a liberal policy with respect to
amendments, she denies the request because the Plaintiff has
offered no indication as to how he would correct the deficiencies
in the claims the Court now dismisses.
The Defendants are ordered to file a responsive pleading by Aug.
27, 2021. Further, the parties are ordered to submit a proposed
case management plan to the Court by Sept. 3, 2021. The Clerk of
Court is directed to terminate the motion at docket entry 57.
A full-text copy of the Court's Aug. 4, 2021 Opinion & Order is
available at https://tinyurl.com/63wjtr9x from Leagle.com.
GENERAL MOTORS: Chism Sues Over Defective Airbag Control Units
--------------------------------------------------------------
JAMAR CHISM; ASHLEY DEGRUY; KISSY ELLIOTT; WILLIAM GARRISON;
MATTHEW MASTRACCI; ARTHUR RAY; MARK SILVER; and KENITH YATES,
individually and on behalf of all others similarly situated,
Plaintiffs v. GENERAL MOTORS LLC, Defendant, Case No.
3:21-cv-11802-RHC-APP ECF (E.D. Mich., Aug. 5, 2021) alleges that
the Defendant's motor vehicles contains defective airbag control
unit.
According to the complaint, the defect is contained in the
Defendant's vehicles airbag control unit, which is referred to by
the Defendant and herein as an "SDM" or "Sensing and Diagnostic
Module." The defect itself is referred to as the "SDM Calibration
Defect."
Despite its knowledge of the alleged defect and its impact on
safety, the Defendant has concealed the defect and failed to recall
or repair its motor vehicles, presumably to avoid the significant
costs and inconveniences of recalling millions of vehicles. The
Defendant has hidden the defect in spite of its obligation to
disclose it, misrepresented the vehicles to be safe, and continued
to sell them to consumers.
Because of the Defendant's failure to disclose the truth, consumers
continue to purchase and drive its motor vehicles with the SDM
Calibration Defect every day, on road trips, commutes, and weekend
errands alike -- unaware that their airbags and seatbelts may not
operate in a prolonged frontal crash, says the suit.
General Motors LLC designs, builds, and sells cars, trucks,
crossovers, and automobile parts. The Company offers vehicle
protection, parts, accessories, maintenance, satellite radio, and
automotive financing services. [BN]
The Plaintiffs are represented by:
E. Powell Miller, Esq.
Sharon S. Almonrode, Esq.
Dennis A. Lienhardt, Esq.
William Kalas, Esq.
THE MILLER LAW FIRM, P.C.
950 West University Drive, Suite 300
Rochester, MI 48307
Telephone: (248) 841-2200
Facsimile: (248) 652-2852
E-mail: epm@millerlawpc.com
ssa@millerlawpc.com
dal@millerlawpc.com
wk@millerlawpc.com
-and-
David S. Stellings, Esq.
Katherine I. McBride, Esq.
Jessica A. Moldovan, Esq.
LIEFF CABRASER HEIMANN &
BERNSTEIN, LLP
250 Hudson Street, 8th Floor
New York, NY 10013
Telephone: (212) 355-9500
Facsimile: (212) 355-9592
E-mail: dstellings@lchb.com
kmcbride@lchb.com
jmoldovan@lchb.com
-and-
Richard Heimann, Esq.
Nimish R. Desai, Esq.
LIEFF CABRASER HEIMANN &
BERNSTEIN, LLP
275 Battery St., 29th Fl
San Francisco, CA 94111-3339
Telephone: (415) 956-1000
Facsimile: (415) 956-1008
E-mail: rheimann@lchb.com
ndesai@lchb.com
-and-
Roland Tellis, Esq.
David Fernandes, Esq.
Adam Tamburelli, Esq.
BARON & BUDD, P.C.
15910 Ventura Boulevard, Suite 1600
Encino, CA 91436
Telephone: (818) 839-2333
Facsimile: (214) 520-1181
E-mail: rtellis@baronbudd.com
dfernandes@baronbudd.com
atamburelli@baronbudd.com
-and-
David M. Birka-White, Esq.
BIRKA-WHITE LAW OFFICES
178 E. Prospect Avenue
Danville, CA 94526
Telephone: (925) 362-9999
E-mail: dbw@birka-white.com
GLOBAL CONTACT: Court Dismisses NYLL Claim From Thompson Class Suit
-------------------------------------------------------------------
In the case, STEPHANIE THOMPSON, on behalf of herself and others
similarly situated, Plaintiff v. GLOBAL CONTACT SERVICES, LLC,
EUGENE OHEMENG, FRANK CAMP, ANTOINETTE CURRIE, and JAMIE HOFFMAN,
Defendants, Case No. 20-CV-651 (MKB) (E.D.N.Y.), Judge Margo K.
Brodie of the U.S. District Court for the Eastern District of New
York grants the Defendants' motion for partial judgment on the
pleadings and dismisses the Plaintiff's the New York Labor Law
claim.
Plaintiff Thompson, on behalf of herself and others similarly
situated, commenced the action against Defendants Global Contact
Services, LLC ("GCS"), Eugene Ohemeng, Frank Camp, Antoinette
Currie, and Jamie Hoffman on Feb. 5, 2020, asserting claims for
recovery of unpaid wages, overtime wages, liquidated damages,
interest, and reasonable attorneys' fees and costs pursuant to the
Fair Labor Standards Act, 29 U.S.C. Section 201, et seq. ("FLSA")
and New York Labor Law ("NYLL") against GCS and Individual
Defendants, and claims for discrimination in violation of New York
State Human Rights Law, N.Y. Exec. Law Section 290 et seq.
("NYSHRL"), and New York City Human Rights Law, N.Y.C. Admin. Code
Section 8-101 et seq. ("NYCHRL") against all the Defendants. The
Plaintiff also asserted claims for battery and intentional
infliction of emotional distress against Ohemeng.
GCS owns and operates a call center that "contracts with
Access-A-Ride, a program that provides transportation services to
individuals with disabilities or health problems" who cannot use
public transportation. The Plaintiff was employed as a call center
representative at GCS from Jan. 7, 2019, until Sept. of 2019, and
was regularly required to work "in excess of 10 hours per day and
40 hours per week" without being paid regular, overtime, and
spread-of-hours pay. The Plaintiff usually worked eleven hours per
day, four days a week. The Plaintiff was typically required to work
Friday through Monday from approximately 6:55 a.m. until 6:00 p.m.
The Plaintiff contends that GCS's "timekeeping and payroll
policies" resulted in a reduction of her paid hours. As a result of
the complexities of logging into both systems, GCS' policies, and
defective equipment used for clocking in and out, the Plaintiff was
not paid for a "significant amount of time worked" per week. GCS
did not record the unpaid time the Plaintiff worked nor did they
provide the Plaintiff with "accurate wage notices and wage
statements." To date, GCS continues to employ these timekeeping
measures and fails to provide employees with the required wages and
preserve payroll records.
During the Plaintiff's employment at GCS, the Plaintiff worked on
the same floor as Ohemeng, another call center representative.
Ohemeng frequently teased, made "sexual comments" toward, and made
"physical contact in a sexual manner" with the Plaintiff. The
Plaintiff "pushed Ohemeng's hand away and told him to stop, but
Ohemeng repeated this behavior on several occasions in spite of
Plaintiff's protests." She complained to supervisors and management
about Ohemeng's comments and behavior and her supervisors accused
her of being a "troublemaker and problematic employee." As
Ohemeng's behavior continued, other co-workers were hostile toward
the Plaintiff for reporting Ohemeng.
On Aug. 29, 2019, the Plaintiff emailed the New York City Transit
Authority, who contracted with GCS, to inform them that she did not
feel comfortable going to work due to Ohemeng and her other
co-workers' behavior. On Aug. 30, 2019, Hoffman called the
Plaintiff and told her she would be fired if she did not return to
work at GCS. After learning from former coworkers that Ohemeng was
still employed at GCS, the Plaintiff never returned to work. The
Plaintiff alleges that she was employed at GCS "until her
constructive termination in September of 2019." GCS fired Ohemeng
in September of 2019. The Plaintiff contends that she was
traumatized by her experiences at GCS and suffers from "extreme
stress and depression" as a result.
On Feb. 5, 2020, the Plaintiff filed the suit in federal court. She
seeks designation as representative of the FLSA collective
plaintiffs, designation of the action as a class action pursuant to
Rule 23 of the Federal Rules of Civil Procedure, designation of the
Plaintiff as representative of the class, unpaid wages, liquidated
and punitive damages, statutory penalties, interest, attorneys'
fees and other costs related to the action, and any other relief
the Court deems just and proper.
On Oct. 1, 2019, a class action suit was filed in the New York
Supreme Court, Kings County ("State Court") in which the plaintiffs
sought to recover "unpaid spread-of-hours premium pay" and
liquidated damages under the NYLL and supporting New York State
Department of Labor regulations ("State Court Class Action"). The
two named plaintiffs were employed by GCS from approximately from
Feb. 25, 2017, until on May 30, 2017, and from Jan. 7, 2019, until
on March 8, 2019.
While employed with GCS, the plaintiffs alleged that they were
required to work over 10 hours per shift and were not provided
spread-of-hours premium pay. The State Court plaintiffs sought to
bring a class claim pursuant to Article 9 of the New York Civil
Practice Law and Rules ("CPLR") and defined the class as including
"all current and former hourly customer service employees who work
or worked at GCS's Long Island City location between March 1, 2017
through Aug. 6, 2019."
On Aug. 6, 2019, the plaintiffs and GCS reached a settlement. On
Dec. 6, 2019, the State Court so ordered the notice of the class
action settlement and fairness hearing. The Order Notice stated
that class members could opt out of the settlement or submit
written objections to the settlement by sending a signed letter to
GCS to be received by Jan. 20, 2020. The Order Notice also stated
that the fairness hearing regarding the settlement would be held on
March 26, 2020.
On March 17, 2020, a fully executed settlement agreement was filed
with the State Court. The Settlement Agreement defines the class as
"all current and former customer service representatives who were
employed by GCS" from March 1, 2017, through Aug. 6, 2019, "who
worked at least one shift of 10 hours or more when paid at the
minimum wage rate and who did not opt-out of the litigation"
("State Court Class").
Under the Settlement Agreement, "released claims" included: "any
and all claims, causes of actions, demands, debts, obligations,
damages or liability pursuant to the New York Labor Law and the
regulations of the New York State Department of Labor, as well as
liquidated damages, interest, attorneys' fees, expenses, and costs
related to all such claims."
On May 27, 2020, the State Court granted the unopposed motion for
settlement approval and dismissed the lawsuit with prejudice.
Discussion
A. The Court considers the State Court Class Action Complaint, the
Settlement Agreement, the Notice, the Order Notice, and the related
State Court orders
Judge Brodie takes judicial notice of the State Court Class Action
Complaint, Settlement Agreement, Notice, Order Notice, and State
Court orders granting preliminary and final approval of the
Settlement Agreement but declines to take judicial notice of the
remaining documents submitted by the parties. The State Court
Class Action Complaint, Notice, Order Notice, and State Court
orders granting preliminary and final approval of the Settlement
Agreement can be considered on this motion because they are public
court records routinely considered on motions to dismiss.
The Judge also takes judicial notice of the State Court Settlement
Agreement because it was filed on the public docket. However, he
does not take judicial notice of the motion papers submitted in
support of the motions for approval of the Settlement Agreement
because they are not necessary to determine whether the Plaintiff's
NYLL claim is barred. He also declines to consider any factual
allegations in the affidavits submitted by the parties on this
motion because these affidavits are outside of the pleadings in
this case and are not subject to judicial notice.
Accordingly, Judge Brodie considers the State Court Complaint,
Settlement Agreement, Notice, Order Notice, and State Court orders
granting preliminary and final approval of the Settlement Agreement
on this motion.
B. Plaintiff's NYLL Claim is Barred by Res Judicata
The Defendants argue that the Plaintiff's NYLL claim regarding the
Defendants' alleged failure to pay the Plaintiff the required
regular, overtime, and spread-of-hours wages as well as the
Defendants' failure to provide accurate wage statements is barred
by the Settlement Agreement. They contend that the Plaintiff is
"estopped from asserting all of her NYLL claims in the Complaint"
because she "failed to opt out of the Settlement Agreement and is
bound by her waiver of NYLL claims under the State Court Settlement
Agreement." The Defendants also argue that the Plaintiff is
estopped from contesting the fairness and scope of the Settlement
Agreement because the fairness issue was already adjudicated by the
State Court.
The Plaintiff argues that her claim is not barred because (1) her
NYLL claim does not arise out of an identical factual predicate to
the State Court Class Action, (2) the scope of release in the
Settlement Agreement is disproportionately broad, and (3) claims
arising under the Wage Theft Prevention Act (the "WTPA") may not be
released in a state court class action. She contends that her NYLL
claim is premised on the off-the-clock hours "that were unpaid, not
for the on-the-clock hours that revealed employees were not paid
their spread of hours premium."
To prove claim preclusion under New York law, a defendant must show
that "(1) the previous action involved an adjudication on the
merits; (2) the previous action involved the same adverse parties
or those in privity with them; and (3) the claims asserted in the
subsequent action were, or could have been raised, in the prior
action."
First, Judge Brodie holds that the State Court Class Action
resulted in a decision on the merits because the State Court
dismissed the action with prejudice based on the Settlement
Agreement. Accordingly, the Defendants satisfy the first factor.
Second, the Defendants have satisfied the second factor because
privity exists between the State Court Class Action plaintiffs and
the Plaintiff in the instant action. Third, the Defendants also
satisfy the third factor because the Plaintiff's NYLL claim was
among those contemplated in the Settlement Agreement. Because the
Defendants satisfy all three factors, the Plaintiff's NYLL claim is
barred under res judicata.
Conclusion
For the foregoing reasons, Judge Brodie grants the Defendants'
motion for partial judgment on the pleadings and dismisses the
Plaintiff's NYLL claim.
A full-text copy of the Court's Aug. 4, 2021 Memorandum & Order is
available at https://tinyurl.com/tv33pmwu from Leagle.com.
GOLDMAN SACHS: Dismissal of XP IPO-Related Suit Under Appeal
------------------------------------------------------------
The Goldman Sachs Group, Inc. said in its Form 10-Q Report filed
with the Securities and Exchange Commission on August 4, 2021, for
the quarterly period ended June 30, 2021, that plaintiffs in the
district court action in the putative securities class action suit
related to XP Inc.'s $2.3 billion December 2019 initial public
offering, has appealed to the Second Circuit Court of Appeals the
grant of the defendants' motion to dismiss.
Goldman Sachs & Co. LLC (GS&Co.) is among the underwriters named as
defendants in putative securities class actions pending in New York
Supreme Court, County of New York, and the U.S. District Court for
the Eastern District of York, filed beginning March 19, 2020,
relating to XP Inc.'s (XP) $2.3 billion December 2019 initial
public offering. In addition to the underwriters, the defendants
include XP, certain of its officers and directors and certain of
its shareholders.
GS&Co. underwrote 19,326,218 shares of common stock in the December
2019 initial public offering representing an aggregate offering
price of approximately $522 million.
On August 5, 2020, defendants' motion to stay the state court
action in favor of the federal court action was denied.
On February 8, 2021, the state court granted the defendants' motion
to dismiss the state court action, and on March 7, 2021, the
district court granted the defendants' motion to dismiss the
federal court action.
On April 7, 2021, plaintiffs in the district court action appealed
to the Second Circuit Court of Appeals.
The Goldman Sachs Group, Inc. operates as an investment banking,
securities, and investment management company worldwide. It
operates in four segments: Investment Banking, Institutional Client
Services, Investing & Lending, and Investment Management. The
Goldman Sachs Group, Inc. was founded in 1869 and is headquartered
in New York, New York.
GOLDMAN SACHS: Loses Appeal in Alnylam-Related Suit
----------------------------------------------------
The Goldman Sachs Group, Inc. said in its Form 10-Q Report filed
with the Securities and Exchange Commission on August 4, 2021, for
the quarterly period ended June 30, 2021, that the Appellate
Division of the Supreme Court of the State of New York for the
First Department denied defendants' appeal of the New York Supreme
Court's denial of the defendants' motion to dismiss the amended
complaint in the putative securities class action suit related to
Alnylam Pharmaceuticals, Inc.'s $805 million November 2017 public
offering of common stock.
Goldman Sachs & Co. LLC (GS&Co.) is among the underwriters named as
defendants in a putative securities class action filed on September
12, 2019 in New York Supreme Court, County of New York, relating to
Alnylam Pharmaceuticals, Inc.'s (Alnylam) $805 million November
2017 public offering of common stock. In addition to the
underwriters, the defendants include Alnylam and certain of its
officers and directors. GS&Co. underwrote 2,576,000 shares of
common stock representing an aggregate offering price of
approximately $322 million.
On October 30, 2020, the court denied the defendants' motion to
dismiss the amended complaint filed on November 7, 2019.
On February 22, 2021, the plaintiffs moved for class certification.
On April 29, 2021, the Appellate Division of the Supreme Court of
the State of New York for the First Department denied defendants'
appeal of the New York Supreme Court's denial of the defendants'
motion to dismiss the amended complaint, except with respect to one
of the plaintiffs' claims against Alnylam's officers and
directors.
The Goldman Sachs Group, Inc. operates as an investment banking,
securities, and investment management company worldwide. It
operates in four segments: Investment Banking, Institutional Client
Services, Investing & Lending, and Investment Management. The
Goldman Sachs Group, Inc. was founded in 1869 and is headquartered
in New York, New York.
GOLDMAN SACHS: Root IPO Related Suit Voluntarily Dismissed
----------------------------------------------------------
The Goldman Sachs Group, Inc. said in its Form 10-Q Report filed
with the Securities and Exchange Commission on August 4, 2021, for
the quarterly period ended June 30, 2021, that plaintiffs in the
putative securities class action suit related to Root, Inc.'s $724
million October 2020 initial public offering of common stock,
voluntarily dismissed their claims without prejudice.
Goldman Sachs & Co. LLC (GS&Co.) is among the underwriters named as
defendants in a putative securities class action filed on March 25,
2021 in the U.S. District Court for the Southern District of Ohio,
relating to Root, Inc.'s (Root) $724 million October 2020 initial
public offering of common stock.
In addition to the underwriters, the defendants include Root and
certain of its officers and directors.
GS&Co. underwrote 9,406,891 shares of common stock representing an
aggregate offering price of approximately $254 million.
On May 12, 2021, plaintiffs voluntarily dismissed their claims
without prejudice.
The Goldman Sachs Group, Inc. operates as an investment banking,
securities, and investment management company worldwide. It
operates in four segments: Investment Banking, Institutional Client
Services, Investing & Lending, and Investment Management. The
Goldman Sachs Group, Inc. was founded in 1869 and is headquartered
in New York, New York.
GOLDMAN SACHS: Settlement Reached in Altice USA IPO-Related Suit
----------------------------------------------------------------
The Goldman Sachs Group, Inc. said in its Form 10-Q Report filed
with the Securities and Exchange Commission on August 4, 2021, for
the quarterly period ended June 30, 2021, that a settlement has
been reached in the putative securities class action suit related
to Altice USA, Inc.'s $2.15 billion June 2017 initial public
offering.
Goldman Sachs & Co. LLC (GS&Co.) is among the underwriters named
as defendants in putative securities class actions pending in New
York Supreme Court, County of Queens, and the U.S. District Court
for the Eastern District of New York beginning in June 2018,
relating to Altice USA, Inc.'s $2.15 billion June 2017 initial
public offering. In addition to the underwriters, the defendants
include Altice and certain of its officers and directors.
GS&Co. underwrote 12,280,042 shares of common stock representing an
aggregate offering price of approximately $368 million.
On June 26, 2020, the court dismissed the amended complaint in the
state court action, and on September 4, 2020, plaintiffs moved for
leave to file a consolidated amended complaint. Plaintiffs in the
district court action filed a second amended complaint on October
7, 2020.
On February 16, 2021, the parties reached a settlement in
principle.
Under the terms of the settlement in principle, the firm will not
be required to contribute to the settlement.
The Goldman Sachs Group, Inc. operates as an investment banking,
securities, and investment management company worldwide. It
operates in four segments: Investment Banking, Institutional Client
Services, Investing & Lending, and Investment Management. The
Goldman Sachs Group, Inc. was founded in 1869 and is headquartered
in New York, New York.
GOLDMAN SACHS: Suit Over 1MDB Scandal Underway
----------------------------------------------
The Goldman Sachs Group, Inc. said in its Form 10-Q Report filed
with the Securities and Exchange Commission on August 4, 2021, for
the quarterly period ended June 30, 2021, that the company
continues to defend a putative securities class action suit related
to to 1MDB.
On December 20, 2018, a putative securities class action lawsuit
was filed in the U.S. District Court for the Southern District of
New York against Group Inc. and certain former officers of the firm
alleging violations of the anti-fraud provisions of the Exchange
Act with respect to Group Inc.'s disclosures and public statements
concerning 1MDB and seeking unspecified damages.
The plaintiffs filed the second amended complaint on October 28,
2019.
On June 28, 2021, the court dismissed the claims against one of the
individual defendants but denied the defendants' motion to dismiss
with respect to the firm and the remaining individual defendants.
The Goldman Sachs Group, Inc. operates as an investment banking,
securities, and investment management company worldwide. It
operates in four segments: Investment Banking, Institutional Client
Services, Investing & Lending, and Investment Management. The
Goldman Sachs Group, Inc. was founded in 1869 and is headquartered
in New York, New York.
HARRIMAN UTILITY: Discovery in Hackworth Suit Stayed for 30 Days
----------------------------------------------------------------
In the case, JOSHUA HACKWORTH, individually and on behalf of those
similarly-situated, Plaintiff v. HARRIMAN UTILITY BOARD, Defendant,
Case No. 3:21-CV-114-CLC-HBG (E.D. Tenn.), Judge H. Bruce Guyton of
the U.S. District Court for the Eastern District of Tennessee,
Knoxville, grants the Defendant's Motion to Stay Discovery or in
the Alternative Motion for Protective Order, and the Second Motion
for Protective Order.
Positions of the Parties
The Defendant seeks a stay of discovery or an order quashing the
Plaintiff's written discovery requests pursuant to Federal Rule of
Civil Procedure 26. In the alternative, it seeks a protective order
protecting it from responding to discovery while the Plaintiff's
motion for conditional certification is pending.
For grounds, the Defendant states that the Plaintiff has filed a
motion requesting that the Court allow the case to proceed as a
collective action pursuant to the Fair Labor Standards Act ("FLSA")
and as a class action based on Plaintiff's state law claims. The
Plaintiff's motion is pending before the Court. The Defendant
states that the Plaintiff has served it with discovery requests
that are premature absent a decision on how the case will proceed.
It requests that the Court exercises its discretion under Rule 26
to stay discovery until the Court determines whether the case
should proceed as a collective action, class action, or both.
In the alternative, the Defendant asserts that good cause exists
under Rule 26(c)(1) for a protective order. It states that
participating in discovery at this stage constitutes an undue
burden because Plaintiff's conditional certification motion remains
unresolved. It maintains that the case should not proceed as a
collective action and asserts that the amount and nature of opt-ins
will change its responses to Plaintiff's discovery requests.
The Defendant argues that responding to discovery at this stage
will likely result in unnecessary work and expense. It states that
Plaintiff's discovery requests target the ultimate merits of the
claim, as opposed to any issues relating to conditional
certification. It states that responding to such discovery, which
may be rendered moot pending the Court's ruling on how the case
will proceed, is burdensome. The Defendant relies on the decision
in Loomis v. Unum Grp., Corp., 338 F.R.D. 225 (E.D. Tenn. 2021), in
support of its arguments. Finally, the Defendant asserts that if
the Plaintiff wants to conduct broader discovery prior to the
adjudication of the issue of conditional certification, he may
unwittingly subject himself to a heightened standard of scrutiny.
The Plaintiff responds in opposition to the Motion. He argues that
the Defendant did not meet and confer with him prior to filing its
Motion and that the Defendant filed its Motion before its response
time for the discovery requests began to elapse. In addition, the
Plaintiff states that the Defendant relies on cases where a
plaintiff requested a stay of discovery in response to a
defendant's request for discovery in relation to a motion for
conditional certification. The Plaintiff states that the Court
should not tolerate delays in the conditional certification process
because the statute of limitations continues to run against
putative plaintiffs' claims. He asserts that the Defendant does not
identify a particular request that is overly burdensome and
otherwise objectionable. The Plaintiff argues that discovery is
necessary because the employees do not have possession of the
documents that will quantify the scope of Defendant's violations.
He summarizes the allegations in the case and states that his
discovery requests are directed to establish the Defendant's
violations.
Further, the Plaintiff states that even if the Court concludes
discovery should be stayed until the identity of the putative
plaintiffs is known, other discovery should proceed. He explains,
for instance, discovery with respect to his claims and other
employees who have already affirmatively consented to join the
lawsuit should proceed. Finally, the Plaintiff states that
discovery relating to his state law claims should not be stayed and
that Defendant's status as a governmental entity mitigates against
the Defendant's requested relief.
The Defendant replies that despite its pending Motion to Stay, the
Plaintiff has served additional discovery requests. The Defendant
states that courts that have been confronted with similar motions
have consistently determined that a stay of discovery is
appropriate pending resolution of whether this case should be
conditionally certified. It maintains that staying discovery will
conserve the parties' time and expense and avoid wasteful and
duplicative discovery efforts. It states that its Motion is
appropriate because the parties are not required to meet and confer
on this issue. The Defendant also argues that discovery should not
proceed in a piecemeal fashion.
In addition, the Defendant filed a Second Motion for Protective
Order, stating that the Plaintiff served ten additional requests
for production of documents and 13 requests for admissions. It
adopts and incorporates its Motion to Stay in support of its Second
Motion for Protective Order. In response, Plaintiff relies on his
previous filings but adds the following arguments: (1) the
Defendant's reliance on cases granting plaintiffs a stay of
discovery pending a ruling on a plaintiff's motion for conditional
certification should be rejected, and (2) the discovery subject to
the Second Motion for Protective Order illustrates why a stay is
not necessary.
The Defendant replies that the precedent in this Circuit draws no
distinction between the parties seeking relief and that its not
practical or economical to attempt to server discovery on the
Plaintiff's individual and state law claims from discovery on the
collective FLSA claims.
Analysis
Judge Guyton has considered the parties' positions, and he finds
that the Defendant's requests are well taken. The Judge has
reviewed the Plaintiff's discovery requests and finds staying
discovery is appropriate because the burden of proceeding with
discovery outweighs the Plaintiff's hardship, if any, of delaying
discovery at this time.
In addition, the Judge finds that staying discovery at this time to
be appropriate in light of the discovery requests in the case,
coupled with the fact that the Court has not adjudicated how the
case will proceed. The Plaintiff's Request for Production ("RFP")
seeks documents relating to him and each person that has joined the
litigation. Given that the potential opt-ins have not received
notice of the action, the Judge says, the Defendant cannot fully
respond at this time and any response will likely be incomplete if
the Plaintiff's motion for conditional certification is granted. In
the event the Court denies the Plaintiff's motion for conditional
certification, the Plaintiff's discovery requests may be rendered
moot.
Judge Guyton has also reviewed the parties' Rule 26(f) report,
wherein the parties describe several disagreements relating to how
discovery should proceed in the case. He finds that it is in the
parties' interests for the Court to adjudicate the motion for
conditional certification prior to discovery so that the parties
can engage in meaningful conversations about how discovery should
proceed, what appropriate limits may be necessary, and whether the
parties can agree to representational proof if the motion is
granted.
As mentioned, the Court has not adjudicated the motion for
conditional certification, meaning that the Plaintiff's discovery
requests could be rendered moot and outside the permissible scope
of Rule 26(c)(1). If the motion for conditional certification is
granted, the Defendant will have to supplement most of its
responses depending on who files a consent. Accordingly, Jude
Guyton finds the burden of responding to the discovery requests
outweighs the harm, if any, of delaying discovery.
While he has considered the Plaintiff's arguments, the Judge finds
that the Defendant's concerns regarding piecemeal discovery are
reasonable. He agrees that avoiding such piecemeal discovery will
conserve the time and expense of the parties and avoid duplicative
discovery efforts. As mentioned, the Court also finds that staying
discovery will allow the parties time to discuss how discovery
should proceed in light of the Court's ruling on the motion for
conditional certification.
Conclusion
Accordingly, Judge Guyton finds the Defendant's Motion to Stay
Discovery or in the Alternative Motion for Protective Order and the
Defendant's Second Motion for Protective Order to be well taken,
and they are granted. Discovery is stayed until 30 days after the
completion of the opt-in period.
A full-text copy of the Court's Aug. 4, 2021 Memorandum & Order is
available at https://tinyurl.com/hh2a9c4z from Leagle.com.
HARVARD BUSINESS: Faces Hamilton Suit Over Information Disclosure
-----------------------------------------------------------------
SHARON HAMILTON, individually and on behalf of all others similarly
situated, Plaintiff v. HARVARD BUSINESS PUBLISHING CORPORATION,
Defendant, Case No. 2:21-cv-11808-SDD-CI (E.D. Mich., Aug. 5, 2021)
alleges violation of the Michigan's Preservation of Personal
Privacy Act.
The Plaintiff alleges in the complaint that the Defendant rented,
exchanged, and otherwise disclosed detailed information about the
Plaintiff's Harvard Business Review magazine subscription to data
aggregators, data appenders, data cooperatives, and list brokers,
among others, which in turn disclosed her information to aggressive
advertisers, political organizations, and non-profit companies. As
a result, the Plaintiff has received a barrage of unwanted junk
mail.
By renting, exchanging, or otherwise disclosing - rather than
selling - its customers' Private Reading Information, HBP is able
to disclose the information time and time again to countless third
parties. The Defendant's disclosure of Private Reading Information
and other individualized information is not only unlawful, but also
dangerous because it allows for the targeting of particular members
of society, says the suit.
Harvard Business School Publishing Corporation operates as a
non-profit organization. The Organization offers press books,
newsletters, white papers, articles, videos, and virtual seminars.
[BN]
The Plaintiff is represented by:
Philip L. Fraietta, Esq.
BURSOR & FISHER, P.A.
888 Seventh Avenue
New York, NY 10019
Telephone: (646) 837-7150
Facsimile: (212) 989-9163
E-mail: pfraietta@bursor.com
HEARING HELP: Class Settlement in Hoffman Suit Has Prelim. Approval
-------------------------------------------------------------------
In the case, MARK HOFFMAN, on behalf of himself and all others
similarly situated, Plaintiff v. HEARING HELP EXPRESS, INC.,
TRIANGULAR MEDIA CORP., LEADCREATIONS.COM, LLC, LEWIS LURIE,
INTRICON, INC., and INTRICON CORPORATION, Defendants, Case No.
3:19-cv-05960-MJP (W.D. Wash.), Judge Marsha J. Pechman of the U.S.
District Court for the Western District of Washington grants the
motion for preliminary approval of class settlement, including the
Settlement Agreement and Release.
The Judge preliminarily approves the Settlement Agreement and the
terms and conditions of settlement set forth therein, subject to
further consideration at the Final Approval Hearing. She has
conducted a preliminary assessment of the fairness, reasonableness,
and adequacy of the Agreement and finds that the settlement falls
within the range of reasonableness meriting possible final
approval.
For purposes of settlement only, and to certify the class for
purposes of judgment on the settlement under Rule 23(e)(1)(B)(ii),
the Judge preliminarily finds that the proposed Settlement Class
satisfies the prerequisites under Fed. R. Civ. P. 23(a) and
23(b)(3), and she conditionally certifies the Settlement Class.
The Settlement Agreement, including the Long-Form Notice, Email
Notice, Postcard Notice, Claim Form, and Opt-Out Form attached to
the Settlement Agreement as Exhibits 2-6 are preliminarily
approved.
AB Data, Ltd. is appointed as the Settlement Administrator. The
Settling Defendants and the Settlement Administrator will notify
the Settlement Class Members of the settlement in the manner
specified under Section 4 of the Settlement Agreement.
Settlement Class Members who want to receive an award under the
Settlement Agreement must accurately complete and deliver a Claim
Form to the Settlement Administrator no later than 90 calendar days
after the entry of the Order. Any Settlement Class Member who has
not submitted a valid written exclusion request and who wishes to
object to the fairness, reasonableness, or adequacy of the
Settlement Agreement, the Fees, Costs, and Expenses Award, or the
Service Payment must deliver written objections to the Settlement
Administrator (by postal mail or email) or the Court no later than
90 calendar days after the entry of the Order.
Settlement Class Members may elect not to be part of the Class and
not to be bound by the Settlement Agreement. Individual requests
for exclusion may be submitted to the Settlement Administrator
electronically through the Settlement Website, by email or by
postal mail, but if submitted by postal mail, each Settlement Class
Member must pay for postage. No mass opt-outs are allowed. A
request for exclusion must be submitted no later than 90 calendar
days after entry of the Order.
The Settlement Class is provisionally certified as: All persons or
entities within the United States who received, on or after Oct. 9,
2015, a non-emergency telephone call from or on behalf of Hearing
Help Express, Inc. and whose contact information was received
either directly or indirectly from ByteSuccess (including its
related entity and/or successor, Andrews Wharton) and Triangular
Media Corp. (including, LeadCreations), promoting goods or
services: (i) to a cellular telephone number through the use of an
automatic telephone dialing system; (ii) to a cellular or
residential telephone number using an artificial or prerecorded
voice; or (iii) to a cellular or residential telephone number that
has been registered on the national Do Not Call Registry for at
least 31 days and who received more than one such call within any
12-month period.
The Plaintiff is conditionally certified as the class
representative to implement the Parties' settlement in accordance
with the Settlement Agreement. The law firms of Paronich Law, P.C
Terrell Marshall Law Group, PLLC are conditionally appointed as
Settlement Class Counsel. The Plaintiff and the Settlement Class
Counsel must fairly and adequately protect the Settlement Class'
interests.
Judge Pechman orders that any Action or proceedings in any court in
the United States involving any Released Claims asserted by any
Releasing Parties, except any matters necessary to implement,
advance, or further the approval of the Settlement Agreement are
stayed pending the Final Approval Hearing and issuance of any Final
Order and Judgment. All discovery and pretrial proceedings and
deadlines are stayed and suspended until further notice from the
Court, except for such Action as are necessary to implement the
Settlement Agreement and the Order.
The Counsel for the Parties are authorized to utilize all
reasonable procedures in connection with the administration of the
settlement which are not materially inconsistent with either the
Order or the terms of the Agreement. The Parties may further modify
the Settlement Agreement prior to the Final Approval Hearing so
long as such modifications do not materially change the terms of
the settlement provided therein. The Court may approve the
Settlement Agreement with such modifications as may be agreed to by
the Parties, if appropriate, without further notice to the
Settlement Class Members.
On Jan. 5, 2022, at 10:00 a.m., the Court will hold a Fairness
Hearing. The Plaintiff's motion in support of the Final Judgment
will be filed 14 calendar days before the Final Approval Hearing.
Any brief Settling Defendants may choose to file will be filed on
or before seven calendar days before the Final Approval Hearing.
The Agreement and the Order provide for the following timeline
dates and deadlines related to the provision of notice and the
Final Approval Hearing:
a. Deadline for Settling Defendants to provide Settlement
Administrator the Class List - 10 calendar days after entry of the
Order
b. Deadline for Settlement Administrator to publish Settlement
Website and begin operating toll-free telephone line, email
address, and P.O. Box to accept inquiries from Settlement Class
Members - 30 days after entry of the Order
c. Deadline for sending Email Notice and Postcard Notice to
Settlement Class Members Class - 30 days after entry of the Order
d. Counsel's Fee Motion - Submitted 21 days before the
Response Deadline
e. Deadline to Submit a Claim, Request Exclusion or Object -
90 days after the Order is entered
f. Brief and Response Deadline - 14 days prior to the Final
Approval
g. Final Approval Hearing set for Jan. 5, 2022, at 10:00 a.m.
A full-text copy of the Court's Aug. 4, 2021 Preliminary Approval
Order is available at https://tinyurl.com/46d6rzwr from
Leagle.com.
HONOLULU, HI: First Responders File Suit Over Vaccine Requirements
------------------------------------------------------------------
Diane Ako, writing for KITV, reports that that a class action
lawsuit was filed by 1,200 first responders against Honolulu and
Maui Counties because they feel a vaccine requirement at work
violates their constitutional rights.
The three lawyers representing the plaintiffs filed the complaint
on Aug. 13. The defendants - the county mayors, the Governor, and
others - were set to be served on Aug. 16. The legal team told
KITV4 tonight, since this hit the news, another 800 city workers
asked to join the lawsuit.
And they've taken what they say are "thousands" of requests from
private sector workers and students to open up other class action
lawsuits. Michael Green, Kristina Coccaro, and Shawn Luiz -- who
work at different firms but joined forces for this case -- say they
are planning to do that. [GN]
HYATT HOTELS: Putative Class Suit in Illinois Dismissed
-------------------------------------------------------
Hyatt Hotels Corporation said in its Form 10-Q Report filed with
the Securities and Exchange Commission on August 4, 2021, for the
quarterly period ended June 30, 2021, that the putative class
action suit filed in the federal district court in Illinois with
Case No. 1:18-cv-01959, had been dismissed.
In March 2018, a putative class action was filed against the
Company and several other hotel companies in federal district court
in Illinois, Case No. 1:18-cv-01959, seeking an unspecified amount
of damages and equitable relief for an alleged violation of the
federal antitrust laws.
In July 2021, the parties involved in this litigation entered into
a confidential settlement agreement, and on July 26, 2021, the
parties filed a Joint Stipulation of Dismissal With Prejudice
dismissing the claims in that action.
The settlement amount attributed to Hyatt is not considered
material to the Company.
Hyatt Hotels Corporation, a hospitality company, develops, owns,
operates, manages, franchises, licenses, or provides services to
hotels, resorts, residential, and other properties. It operates
through four segments: Owned and Leased Hotels, Americas Management
and Franchising, ASPACManagement and Franchising, and EAME/SW Asia
Management and Franchising. The company was formerly known as
Global Hyatt Corporation and changed its name to Hyatt Hotels
Corporation in June 2009. Hyatt Hotels Corporation was founded in
1957 and is headquartered in Chicago, Illinois.
ILLINOIS: Judge Notes Violations to Transgender Inmates' Rights
---------------------------------------------------------------
The Associated Press reports that a federal judge has noted
"serious ongoing" violations to the rights of transgender prison
inmates in Illinois which must be "immediately addressed."
Chief Judge Nancy J. Rosenstengel in southern Illinois said in a
memorandum and order earlier this month that the Illinois
Department of Corrections has made some changes ordered in 2019
following a class-action lawsuit. But correctional officers and
other staff have not had any training in new procedures regarding
transgender inmates.
"There are still serious violations of Plaintiffs' constitutional
rights happening every day," Rosenstengel said. That includes
delays in treating inmates and a failure to monitor the health of
inmates receiving hormone therapy and properly adjusting the
dosage.
Rosenstengel also noted a lack of appropriate medical are and more
suicide attempts, more threats of suicide and ongoing harassment.
"Our clients have endured years of suffering, waiting for IDOC to
simply provide basic health care," said inmates' attorney attorney
John Knight, LGBTQ & HIV Project Director at the ACLU of Illinois.
An Illinois Department of Corrections spokeswoman said the agency
has "implemented a number of initiatives to improve the quality of
transgender care" and "is committed to ensuring world class care
for transgender individuals in custody." [GN]
IVERIC BIO: Settlement Reached in New York Consolidated Class Suit
------------------------------------------------------------------
IVERIC bio, Inc. said in its Form 10-Q Report filed with the
Securities and Exchange Commission on August 4, 2021, for the
quarterly period ended June 30, 2021, that the parties in the
consolidated class action suit have notified the court that they
had reached an agreement in principle to settle the class action.
On January 11, 2017, a putative class action lawsuit was filed
against the Company and certain of its current and former executive
officers in the United States District Court for the Southern
District of New York, captioned Frank Micholle v. IVERIC bio, Inc.,
et al., No. 1:17-cv-00210.
On March 9, 2017, a related putative class action lawsuit was filed
against the Company and the same group of its current and former
executive officers in the United States District Court for the
Southern District of New York, captioned Wasson v. IVERIC bio,
Inc., et al., No. 1:17-cv-01758.
These cases were consolidated on March 13, 2018. On June 4, 2018,
the lead plaintiff filed a consolidated amended complaint (the
CAC). The CAC purports to be brought on behalf of shareholders who
purchased the Company's common stock between March 2, 2015 and
December 12, 2016.
The CAC generally alleges that the Company and certain of its
officers violated Sections 10(b) and/or 20(a) of the Securities
Exchange Act of 1934 and Rule 10b-5 promulgated thereunder by
making allegedly false and/or misleading statements concerning the
results of the Company's Phase 2b trial and the prospects of the
Company's Phase 3 trials for Fovista in combination with anti-VEGF
agents for the treatment of wet AMD. The CAC seeks unspecified
damages, attorneys' fees, and other costs.
The Company and individual defendants filed a motion to dismiss the
CAC on July 27, 2018. On September 18, 2019, the court issued an
order dismissing some, but not all, of the allegations in the CAC.
On November 18, 2019, the Company and the individual defendants
filed an answer to the complaint. On June 12, 2020, the lead
plaintiff filed a motion for class certification. On August 11,
2020, the defendants filed a notice of non-opposition to lead
plaintiff's motion for class certification.
On April 23, 2021, the court issued an order staying the action
until July 1, 2021, 10 days after a mediation scheduled for June
21, 2021.
On July 1, 2021, following the June 21, 2021 mediation, the parties
notified the court that they had reached an agreement in principle
to settle the class action. Discovery remains stayed while the
parties negotiate the terms of the settlement agreement. The
Company does not expect this settlement, if finalized as currently
contemplated, to have a material impact on its financial
condition.
IVERIC bio, Inc., a biopharmaceutical company, develops novel
therapies to treat ophthalmic diseases with a focus on age-related
and orphan retinal diseases. The company was formerly known as
Ophthotech Corporation and changed its name to IVERIC bio, Inc. in
April 2019. IVERIC bio, Inc. was founded in 2007 and is
headquartered in New York, New York.
JPMORGAN CHASE: Bid to Vacate July 29 Order in Dill Suit Denied
---------------------------------------------------------------
In the case, HAROLD R. DILL and EDWARD M. APPLEBY, Plaintiffs v.
JPMORGAN CHASE BANK, N.A., Defendant, Case No. 19 Civ. 10947 (KPF)
(S.D.N.Y.), Judge Katherine Polk Failla of the U.S. District Court
for the Southern District of New York entered an Opinion and Order
denying both the Plaintiffs':
(i) motion, pursuant to 28 U.S.C. Section 1292(b), for
certification of an interlocutory appeal of the July 29
Order; and
(ii) motion to vacate the July 29 Order pursuant to Rule 54(b)
of the Federal Rules of Civil Procedure, citing the Second
Circuit's recent decision in Cooper v. Ruane Cunnif &
Goldfarb Inc., 990 F.3d 173 (2d Cir. 2021).
On Nov. 26, 2019, Plaintiffs Dill and Appleby commenced the action
with the filing of their initial Complaint. The Plaintiffs asserted
claims against Defendant JPMorgan for conversion, negligence,
negligence per se, and unjust enrichment on behalf of themselves
and various putative classes of plaintiffs.
In broad summary, the Plaintiffs alleged that: (i) they had
purchased cashier's checks from Defendant, using funds from their
accounts with the Defendant; (ii) the Checks eventually became
abandoned property subject to applicable state and federal laws of
escheatment; and (iii) the Defendant failed to follow the
applicable escheatment laws and to provide the Plaintiffs with
proper notice that the Checks had been deemed abandoned.
On Jan. 31, 2020, the Defendant filed a motion to compel
arbitration of the Plaintiffs' claims pursuant to the Federal
Arbitration Act, 9 U.S.C. Sections 1-16 ("FAA"), and to stay the
case pending the outcome of that arbitration. In particular, the
Defendant argued that the Plaintiffs' claims were governed by the
arbitration provision of the Defendant's Account Rules &
Regulations ("Deposit Account Agreement," or "DAA"). The Plaintiffs
opposed the motion on April 27, 2020, arguing that the parties'
dispute fell outside the scope of the DAA's arbitration provision.
The motion became fully briefed and ripe for review when the
Defendant filed its reply brief on May 26, 2020.
On June 26, 2020, prior to resolving the Defendant's motion to
compel arbitration, the Court granted the Plaintiffs' motion to add
Kari Garber as a party plaintiff and the Defendant's cross-motion
for an extension of time to file its responsive pleading. The
Plaintiffs' Amended Comp
On July 29, 2020, the Court issued an Opinion and Order granting
Defendant JPMorgan's motion to compel arbitration of the claims of
the Plaintiffs and staying the action as to those Plaintiffs
pending the outcome of arbitration. The Court's decision to stay
the action, implemented in accordance with Second Circuit
precedent, effectively prevented the parties from appealing the
July 29 Order.
On Sept. 1, 2020, the Plaintiffs moved to certify the July 29 Order
for interlocutory appeal. The Court approved the parties' proposed
briefing schedule, pursuant to which the Defendant's opposition
brief was filed on Sept. 22, 2020, and the Plaintiffs' reply brief
was filed on Oct. 9, 2020. The Defendant subsequently filed a
letter regarding cases brought by the Plaintiffs' counsel in state
courts in California and Illinois, in further opposition to the
Plaintiffs' motion, on Jan. 8, 2021. The Plaintiffs responded to
the Defendant's letter on Jan. 11, 2021, and the Court issued a
memorandum endorsement on Jan. 14, 2021, indicating that it
considered briefing on the issue to be closed. Accordingly, the
motion for certification of the July 29 Order for interlocutory
appeal is fully briefed and ripe for review.
Separately, on Sept. 15, 2020, the Plaintiffs filed a Second
Amended Complaint that added Laura Stanczyk as a party plaintiff.
The Defendant subsequently filed a motion to dismiss the Second
Amended Complaint on Nov. 5, 2020. On Dec. 10, 2020, Kari Garber
and Laura Stanczyk voluntarily dismissed their claims, and the
Court subsequently denied the Defendant's motion to dismiss as
moot.
Shortly after issuance of the Ruane decision, on March 12, 2021,
the Plaintiffs moved to vacate the July 29 Order in light of the
new decision. The Defendant filed an opposition brief on March 26,
2021, and briefing was completed with the submission of the
Plaintiffs' reply brief on April 2, 2021.
Discussion
A. Plaintiffs' Motion to Certify the July 29 Order for
Interlocutory Appeal
The Plaintiffs seek to appeal the Court's ruling on the
arbitrability of their claims. Judge Failla concludes that the
Plaintiffs have not demonstrated that the July 29 Order meets the
statutory requirements for certification for interlocutory appeal.
a. The July 29 Order Did Not Involve a Controlling Question of Law
The Plaintiffs argue that the Court's decision on the arbitrability
of their claims would have "a significant effect on the conduct of
the action." They express concern that should either of them appeal
an unfavorable arbitration decision to the Court, and then the
Second Circuit, "all" prior arbitration awards would be at risk of
being vacated in the event the Second Circuit reaches a different
conclusion on the issue of arbitrability.
In sum, Judge Failla holds that the Plaintiffs have not
demonstrated that the July 29 Order raises either a controlling or
a pure question of law. First, the July 29 Order addresses the
availability of arbitration, rather than what form the arbitration
will take, and reversal of the order "would not terminate the
action, but rather would return the action to the Court. Second,
the Judge is unable to find that the July 29 Order's potential
impact on putative class members provides a basis for
certification. Third, the Plaintiffs fail to cite cases in which
courts have considered the impact on putative class members in
conducting the inquiry. Finally, the Judge disagrees with the
Plaintiffs that the July 29 Order presents a "pure" question of
law. The question of "the applicability of a foreseeability test to
the DAA" necessarily requires knowledge of the underlying record.
b. There Is Not Substantial Ground for Difference of Opinion
Concerning the Arbitrability of Plaintiffs' Claims
The Plaintiffs next fail to demonstrate that the July 29 Order
presents "substantial ground for difference of opinion," Judge
Failla opines. To do so, they must establish either that "[i] there
is conflicting authority on the issue, or [ii] the issue is
particularly difficult and of first impression for the Second
Circuit." The July 29 Order satisfies neither of these
requirements. The Judge rejects the efforts by the Plaintiffs to
concoct a legal dispute worthy of interlocutory appeal. The mere
presence of a disputed issue that is a question of first
impression, standing alone, is insufficient to demonstrate a
substantial ground for difference of opinion.
c. An Immediate Appeal Will Not Materially Advance the Ultimate
Termination of the Litigation
Lastly, Judge Failla considers whether immediate appeal will
materially advance the ultimate termination of the litigation. An
immediate appeal is considered to advance the ultimate termination
of the litigation if that appeal promises to advance the time for
trial or to shorten the time required for trial.
In sum, as the Plaintiffs have met none of the requirements of
Section 1292(b), the Judge declines to grant certification. First,
courts in the Circuit have declined to certify decisions compelling
class arbitration. Second, the Plaintiffs' arguments regarding the
need to determine the scope of the class are premature at this
point in the litigation, given that no class has yet been
certified. Third, the Plaintiffs refer the Court to cases that have
no precedential value. Finally, the Judge finds that allowing
certification of the July 29 Order "would be inconsistent with the
'national policy favoring arbitration,' and the Second Circuit's
distaste for delaying 'the arbitral process through appellate
review."
B. Plaintiffs' Motion to Vacate the July 29 Order Under Fed. R.
Civ. P. 54(b)
The Plaintiffs argue that the Court should vacate the July 29 Order
in light of the Second Circuit's decision in Ruane. In Ruane, the
Second Circuit reversed a district court order compelling
arbitration, concluding that the parties' dispute fell outside the
scope of the relevant arbitration provision. The Ruane plaintiff
was pursuing an action under Section 502(a)(2) of the Employee
Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. Section
1132(a)(2), against the investment advisor for his employer's
profit-sharing plan. The district court concluded that the
defendant could compel the plaintiff to arbitrate his ERISA
fiduciary claims under his employment agreement's arbitration
provision, pursuant to which he agreed to arbitrate "all legal
claims arising out of or relating to employment." The Second
Circuit disagreed, and instead found that the plaintiff's claims
did not "relate to" his employment.
The Plaintiffs submit that Ruane requires the Court to reconsider
its determination that the parties' dispute falls within the scope
of the DAA's arbitration provision. The Defendant unsurprisingly
offers a different interpretation of Ruane, and argues that the
Second Circuit (i) considered an entirely distinguishable
arbitration provision1), and (ii) merely synthesized the law
applied in the Court's July 29 Order.
Judge Failla finds that Ruane does not compel a different finding
as to the scope of the DAA's arbitration provision. First, she
disagrees with the Plaintiffs that the Ruane Court rejected the
notion of "reliance on the presumption of arbitrability and the
presence of a broad clause to compel arbitration." Second, the
Ruane Court's agreement with the Ninth Circuit's decision in United
States ex rel. Welch v. My Left Foot Children's Therapy, LLC, 871
F.3d 791, 799 (9th Cir. 2017), and its discussion of other
out-of-Circuit cases, do not change the Court's views on the
applicability of the DAA's arbitration provision to the instant
dispute.
Conclusion
For the reasons stated in her Opinion, Judge Failla denied the
Plaintiffs' motions. The Clerk of Court is directed to terminate
the motions at docket entries 58 and 91. The stay imposed by the
Court's July 29 Order remains in place pending further order of the
Court. The parties are further ordered to update the Court by Nov.
5, 2021, regarding the status of any arbitration.
A full-text copy of the Court's Aug. 4, 2021 Opinion & Order is
available at https://tinyurl.com/uzhye43r from Leagle.com.
KFORCE INC: Final Settlement Approval Hearing Set for Sept. 30
--------------------------------------------------------------
Kforce Inc. said in its Form 10-Q Report filed with the Securities
and Exchange Commission on August 4, 2021, for the quarterly period
ended June 30, 2021, that the final settlement approval hearing in
Hope Gofton and Adam Kimbrel, et al. v. Kforce Inc., Case No.:
2:20-cv-04886 has been scheduled for September 30, 2021.
On October 13, 2020, Kforce Inc. was served with a complaint
brought in the U.S. District Court, Eastern District of
Pennsylvania. Hope Gofton and Adam Kimbrel, et al. v. Kforce Inc.,
Case No.: 2:20-cv-04886 on behalf of themselves and other similarly
situated current and former employees.
The plaintiffs purport to bring a collective action for alleged
violations of the Fair Labor Standards Act, 29 U.S.C. Section 201,
et seq., and a class action for alleged violations of the
Pennsylvania Minimum Wage Act, 43 P.S. Sections 333.101, et seq.,
based upon the defendant's purported failure to pay federal and
state overtime wages.
The plaintiffs allege that the defendant improperly classified as
exempt the plaintiffs and other putative collective and class
members, and allegedly failed to pay overtime wages.
The plaintiffs seek payment of unpaid overtime wages, liquidated
damages, interest, attorney's fees, costs and other relief deemed
equitable by the Court.
On April 22, 2021, the parties reached a preliminary settlement of
the case.
The Court approved the preliminary settlement on June 22, 2021 and
scheduled a final fairness hearing for September 30, 2021.
Kforce said, "We believe that this matter is unlikely to have a
material adverse effect on our business, consolidated financial
position, results of operations, or cash flows."
Kforce Inc. provides professional staffing services and solutions
in the United States and internationally. It operates through
Technology and Finance and Accounting (FA) segments. Kforce Inc.
was founded in 1962 and is headquartered in Tampa, Florida.
KFORCE INC: Parties in Cook Suit Files Stipulation for Dismissal
----------------------------------------------------------------
Kforce Inc. said in its Form 10-Q Report filed with the Securities
and Exchange Commission on August 4, 2021, for the quarterly period
ended June 30, 2021, that the parties in Jessica Cook, et. al. v.
Kforce Inc., case no. 2:21-cv-02453, filed a Joint Stipulation for
Dismissal Without Prejudice
On March 19, 2021, a complaint was filed against Kforce Inc. in the
United States District Court, Central District of California, and
served on March 25, 2021.
Jessica Cook, et. al. v. Kforce Inc., case no. 2:21-cv-02453. On
behalf of herself and all others similarly situated, the plaintiff
purports to bring a collective action challenging the exempt
classification of a select class of recruiters.
Plaintiff alleges that due to the misclassification of the
recruiter class Kforce violated the Fair Labor Standards Act by
failing to pay overtime and failing to make, keep, and preserve
records with respect to each employee sufficient to determine their
wages. The class action is brought pursuant to California state
law, on behalf of the same class of California recruiters, and
alleges: (i) classification and overtime violations under
California law; (ii) untimely payment of wages; (iii) legally
deficient wage statements; (iv) violations of meal and rest period
requirements; and (v) violation of California's Unfair Competition
Law. Plaintiff, on behalf of herself and the class and/or
collective, seeks damages in the amount of unpaid overtime
compensation, double time pay as applicable (for the California
class), liquidated damages, attorney's fees, interest, and other
relief.
The parties reached an agreement to attempt resolution by
mediation, and as a result, filed a Joint Stipulation for Dismissal
Without Prejudice on June 28, 2021.
Kforce said, "If mediation is unsuccessful, it is expected that
Plaintiff will re-file her class and collective action claims in a
subsequent action. At this stage in the litigation, it is not
feasible to predict the outcome of this matter or reasonably
estimate a range of loss, should a loss occur, from this
proceeding."
Kforce Inc. provides professional staffing services and solutions
in the United States and internationally. It operates through
Technology and Finance and Accounting (FA) segments. Kforce Inc.
was founded in 1962 and is headquartered in Tampa, Florida.
KFORCE INC: Smith Purported Class Suit Dismissed with Prejudice
---------------------------------------------------------------
Kforce Inc. said in its Form 10-Q Report filed with the Securities
and Exchange Commission on August 4, 2021, for the quarterly period
ended June 30, 2021, that the court has granted final approval of
the settlement in Maurcus Smith, Alvin Hodge and David Kortright,
et al. v. Kforce Inc., Case No.: 8:19-cv-02068-CEH-CPT and
dismissed the action with pejudice.
On August 23, 2019, Kforce Inc. was served with a complaint, as
amended, brought in the U.S. District Court, Middle District of
Florida, Tampa Division. Maurcus Smith, Alvin Hodge and David
Kortright, et al. v. Kforce Inc., Case No.: 8:19-cv-02068-CEH-CPT.
The plaintiffs purport to bring claims on their own behalf and on
behalf of a putative class of consumers/applicants who were the
subject of consumer reports used for employment purposes for
alleged violations of the Fair Credit Reporting Act of 1970, as
amended, ("FCRA"), 15 U.S.C. Section 1681 et seq. based upon the
defendant's purported failure to provide stand-alone FCRA
disclosures and obtain valid authorizations.
The plaintiffs seek statutory damages, punitive damages, costs,
attorney's fees and other relief under the FCRA.
On February 10, 2020, the parties reached a preliminary settlement
of the case. The Court entered a Final Approval Order on June 28,
2021 approving the settlement agreement and dismissing the action
with prejudice.
Kforce said, "We believe that this matter is unlikely to have a
material adverse effect on our business, consolidated financial
position, results of operations, or cash flows."
Kforce Inc. provides professional staffing services and solutions
in the United States and internationally. It operates through
Technology and Finance and Accounting (FA) segments. Kforce Inc.
was founded in 1962 and is headquartered in Tampa, Florida.
KONINKLIJKE PHILIPS: Faces Anthony Suit Over Defective Ventilators
------------------------------------------------------------------
JOHN ANTHONY, individually and on behalf of all others similarly
situated, Plaintiff v. KONINKLIJKE PHILIPS N.V.; PHILIPS NORTH
AMERICA LLC; and PHILIPS RS NORTH AMERICA LLC, Defendants, Case No.
2:21-cv-01034-MRH (W.D. Pa., Aug. 4, 2021) alleges that the
Defendants manufacture and sell defective Continuous Positive
Airway Pressure ("CPAP") and Bilevel Positive Airway Pressure
("BiPAP") machines, which are commonly used to treat sleep apnea,
and ventilators, which treat respiratory failure.
According to the complaint, on June 14, 2021, Philips announced a
recall of many of its CPAP/BiPAP machines and its ventilators
because they suffer from a defect which could result in serious
injury, permanent impairment, and even be life-threatening.
These products contain polyester-based polyurethane ("PE-PUR") foam
which is used to minimize the sound produced by the devices.
According to Philips, this PE-PUR foam can deteriorate over time,
causing it to break down. When the foam breaks down, small foam
particles and gases can be inhaled or ingested though use of the
devices which assist patients with respiration. The foam may emit
volatile organic compounds, which when inhaled, can result in
serious adverse health effects, including cancer, the suit says.
Unfortunately for patients, Philips has known about these dangers
for years but did nothing to warn patients or doctors until
recently.
Furthermore, despite the recall, Philips is still not actually
repairing or replacing affected devices, which many patients rely
upon on a daily basis to treat serious medical conditions. Since
Philips is now telling patients it is not safe to use these
devices, but many patients rely on them to treat serious health
conditions, Philips leaves many patients with no safe option but to
pay full price for a newer version, added the suit.
Koninklijke Philips NV is a health technology company focused on
improving people's health across the health continuum from healthy
living and prevention, to diagnosis, treatment, and home care. The
Company offers products and services in diagnostic imaging,
image-guided therapy, patient monitoring and health informatics, as
well as in consumer health and home care. [BN]
The Plaintiff is represented by:
Steven A. Schwartz, Esq.
Benjamin F. Johns, 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
amk@chimicles.com
-and-
Natalie Finkelman Bennett, Esq.
James C. Shah, Esq.
MILLER SHAH LLP
1845 Walnut Street, Suite 806
Philadelphia, PA 19103
Telephone: (610) 891-9880
Facsimile: (866) 300-7367
E-mail: nfinkelman@millershah.com
jcshah@millershah.com
KRAFT HEINZ: Osborne Suit v. Employee Benefits Board Underway
-------------------------------------------------------------
The Kraft Heinz Company said in its Form 10-Q Report filed with the
Securities and Exchange Commission on August 4, 2021, for the
quarterly period ended June 30, 2021, that the company's Employee
Benefits Administration Board continues to defend a class action
suit entitled, Osborne v. Employee Benefits Administration Board of
Kraft Heinz, et al.
The company's Employee Benefits Administration Board and certain of
The Kraft Heinz Company's current and former officers and employees
are currently defendants in an Employee Retirement Income Security
Act ("ERISA") class action lawsuit, Osborne v. Employee Benefits
Administration Board of Kraft Heinz, et al., which is pending in
the United States District Court for the Northern District of
Illinois.
Plaintiffs in the lawsuit purport to represent a class of current
and former employees who were participants in and beneficiaries of
various retirement plans which were co-invested in a commingled
investment fund known as the Kraft Foods Savings Plan Master Trust
during the period of May 4, 2017 through February 21, 2019. An
amended complaint was filed on June 28, 2019.
The amended complaint alleges violations of Section 502 of ERISA
based on alleged breaches of obligations as fiduciaries subject to
ERISA by allowing the Master Trust to continue investing in the
company's common stock, and alleges additional breaches of
fiduciary duties by current and former officers for their purported
failure to monitor Master Trust fiduciaries.
The plaintiffs seek damages in an unspecified amount, attorneys'
fees, and other relief.
The Kraft Heinz Company manufactures and markets food and beverage
products in the United States, Canada, Europe, and internationally.
Its products include condiments and sauces, cheese and dairy
products, meals, meats, refreshment beverages, coffee, and other
grocery products. The company was formerly known as H.J. Heinz
Holding Corporation and changed its name to The Kraft Heinz Company
in July 2015. The Kraft Heinz Company was founded in 1869 and is
headquartered in Pittsburgh, Pennsylvania.
KRAFT HEINZ: Union Asset Management Class Suit Underway
-------------------------------------------------------
The Kraft Heinz Company said in its Form 10-Q Report filed with the
Securities and Exchange Commission on August 4, 2021, for the
quarterly period ended June 30, 2021, that the company continues to
defend a securities class action suit entitled, Union Asset
Management Holding AG, et al. v. The Kraft Heinz Company, et al.
The Kraft Heinz Company and certain of its current and former
officers and directors are currently defendants in a consolidated
securities class action lawsuit pending in the United States
District Court for the Northern District of Illinois, Union Asset
Management Holding AG, et al. v. The Kraft Heinz Company, et al.
The consolidated amended class action complaint, which was filed on
August 14, 2020 and also names 3G Capital, Inc. and several of its
subsidiaries and affiliates ("3G Entities") as defendants, asserts
claims under Sections 10(b) and 20(a) of the Securities Exchange
Act of 1934, as amended, and Rule 10b-5 promulgated thereunder,
based on allegedly materially false or misleading statements and
omissions in public statements, press releases, investor
presentations, earnings calls, Company documents, and SEC filings
regarding the Company's business, financial results, and internal
controls, and further alleges the 3G Entities engaged in insider
trading and misappropriated the Company's material, non-public
information.
The plaintiffs seek damages in an unspecified amount, attorneys'
fees, and other relief.
The Kraft Heinz Company manufactures and markets food and beverage
products in the United States, Canada, Europe, and internationally.
Its products include condiments and sauces, cheese and dairy
products, meals, meats, refreshment beverages, coffee, and other
grocery products. The company was formerly known as H.J. Heinz
Holding Corporation and changed its name to The Kraft Heinz Company
in July 2015. The Kraft Heinz Company was founded in 1869 and is
headquartered in Pittsburgh, Pennsylvania.
KWONG MING: Faces Almendares Suit Over Failure to Pay Wages
-----------------------------------------------------------
MANUEL ALMENDARES, individually and on behalf of all others
similarly situated, Plaintiff v. KWONG MING RESTAURANT, INC. and
BARRY LEE and GREOGORY G. TON, as individuals, Defendants, Case No.
1:21-cv-04507 (E.D.N.Y., August 11, 2021) is a collective action
complaint brought against the Defendants for their alleged
violations of the Fair Labor Standards Act and the New York Labor
Law.
The Plaintiff was employed by the Defendants from in or around July
2013 until in or around October 2020 to perform his primary duties
as a dishwasher, cook, and kitchen worker, and to perform other
miscellaneous duties.
According to the complaint, although the Plaintiff worked
approximately 66 hours or more hours per week, the Defendants did
not pay him his lawfully earned overtime compensation at the rate
of one and one-half times his regular rates of pay for all hours he
worked in excess of 40 per week. The Defendants also failed to pay
him the legally prescribed minimum wage for his hours worked from
in or around July 2015 until in or around October 2020, as well as
the spread-of-hours pay at the legally prescribed minimum wage for
each day worked over 10 hours. Moreover, the Defendants failed to
keep accurate payroll records and to post notices of the minimum
wage and overtime wage requirements in a conspicuous place at the
location of their employment as required by both the FLSA and NYLL,
says the suit.
Kwong Ming Restaurant, Inc. is a restaurant co-owned and operated
by Barry Lee and Greogory G. Ton. [BN]
The Plaintiff is represented by:
Roman Avshalumov, Esq.
HELEN F. DALTON & ASSOCIATES, P.C.
80-02 Kew Gardens Road, Suite 601
Kew Gardens, NY 11415
Tel: (718) 263-9591
LA ESQUINITA: Fails to Pay Overtime Wages, Reyes Suit Claims
------------------------------------------------------------
ROCIO REYES, individually and on behalf of all others similarly
situated, Plaintiffs v. LA ESQUINITA DELI CORP. and YONY D
RODRIGUEZ ZAVALA and RONNY ACOSTA, as individuals, Defendants, Case
No. 2:21-cv-04520 (E.D.N.Y., August 11, 2021) brings this
collective action complaint against the Defendants to recover
damages for its alleged egregious violations of the Fair Labor
Standards Act and the New York Labor Law.
The Plaintiff has worked for the Defendants from in or around
December 2020 until in or around April 2021 as a cook, cleaner,
counter person, and other miscellaneous duties.
The Plaintiff claims that he worked approximately 98 hours or more
per week during her employment with the Defendants. However, the
Defendants did not pay him overtime compensation at the rate of one
and one-half times his regular rates of pay for all hours he worked
in excess of 40 per workweek. The Defendants also failed to pay him
an extra hour or a spread-of-hours pay at the legally prescribed
minimum wage for each day worked over 10 hours. Additionally, the
Defendants willfully failed to keep payroll records and to post
notices of the minimum wage and overtime wage requirements in a
conspicuous place at the location of their employment as required
by the FLSA and NYLL, alleges the Plaintiff.
La Esquinita Deli Corp. is a restaurant co-owned and operated by
Yony D. Rodriguez Zavala and Ronny Acosta. [BN]
The Plaintiff is represented by:
Roman Avshalumov, Esq.
HELEN F. DALTON & ASSOCIATES, P.C.
80-02 Kew Gardens Road, Suite 601
Kew Gardens, NY 11415
Tel: (718) 263-9591
LENDINGCLUB CORP: Continues to Defend Erceg Putative Class Suit
---------------------------------------------------------------
LendingClub Corporation said in its Form 10-Q Report filed with the
Securities and Exchange Commission on August 4, 2021, for the
quarterly period ended June 30, 2021, that the company continues to
defend a putative class action suit entitled, Erceg v. LendingClub
Corporation, No. 3:20-cv-01153.
In February 2020, a putative class action lawsuit was filed against
the Company in the U.S. District Court for the Northern District of
California (Erceg v. LendingClub Corporation, No. 3:20-cv-01153).
The lawsuit alleges violations of California and Massachusetts law
based on allegations that LendingClub recorded a call with
plaintiff without notifying him that it would be recorded.
Plaintiff seeks to represent a purported class of similarly
situated individuals who had phone calls recorded by LendingClub
without their knowledge and consent.
LendingClub filed a motion to dismiss certain of plaintiff's
claims, strike nationwide class allegations, and, alternatively, to
stay the litigation. Rather than oppose that motion, plaintiff
filed an amended complaint. The Company again filed a motion to
stay, or alternatively to dismiss certain of the claims in the
amended complaint and to strike nationwide class allegations. That
motion was heard by the Court on July 9, 2020.
On July 28, 2020, the Court entered an order granting the Company's
motion to stay plaintiff's California claims pending a decision by
the California Supreme Court in a case involving the California
Invasion of Privacy Act (Smith v. LoanMe, Inc.), dismissing with
prejudice plaintiff's claim under Massachusetts law, and denying
the Company's motion to strike plaintiff's nationwide class
allegations.
In April 2021, the California Supreme Court issued a decision in
the LoanMe case in a manner that permits plaintiff's claims in the
company's case to continue.
The Company has since filed its answer to plaintiff's complaint and
discovery has begun. No assurances can be given as to the timing,
outcome or consequences of this matter.
LendingClub Corporation operates an online lending marketplace
platform that connects borrowers and investors in the United
States. The company's marketplace facilitates various types of loan
products for consumers and small businesses, including unsecured
personal loans, unsecured education and patient installment loans,
auto refinance loans, and small business loans. It also enables
investors to invest in a range of loans based on term and credit.
The company was founded in 2006 and is headquartered in San
Francisco, California.
LENDINGCLUB CORP: Oral Arguments in Veal Appeal Set for Sept. 2
---------------------------------------------------------------
LendingClub Corporation said in its Form 10-Q Report filed with the
Securities and Exchange Commission on August 4, 2021, for the
quarterly period ended June 30, 2021, that the Court has scheduled
oral arguments for the appeal in Veal v. LendingClub Corporation
et.al., No. 5:18-cv-02599, on September 2, 2021.
In 2016, the Company received a formal request for information from
the Federal Trade Commission (FTC). The FTC commenced an
investigation concerning certain of the Company's policies and
practices and related legal compliance.
On April 25, 2018, the FTC filed a complaint in the Northern
District of California (FTC v. LendingClub Corporation, No.
3:18-cv-02454) alleging causes of action for violations of the FTC
Act, including claims of deception in connection with disclosures
related to the origination fee associated with loans available
through the Company's platform, and in connection with
communications relating to the likelihood of loan approval during
the application process, and a claim of unfairness relating to
certain unauthorized charges to borrowers' bank accounts.
In May 2018, following the announcement of the FTC's litigation
against the Company, putative shareholder class action litigation
was filed in the U.S. District Court of the Northern District of
California (Veal v. LendingClub Corporation et.al., No.
5:18-cv-02599) against the Company and certain of its current and
former officers and directors alleging violations of federal
securities laws in connection with the Company's description of
fees and compliance with federal privacy law in securities filings.
On January 7, 2019, the lead plaintiffs filed a consolidated
amended class action complaint which asserts the same causes of
action as the original complaint and adds additional allegations.
That complaint was subsequently dismissed by the Court with leave
to amend. Plaintiff filed a Second Amended Complaint on December
19, 2019, which modified and added certain allegations and dropped
one of the former officer defendants as a defendant in the case,
but otherwise advanced the same causes of action.
On June 12, 2020, the Court issued an order granting a motion to
dismiss by defendants without leave to amend, in part, and with
leave to amend, in part. On July 27, 2020, the lead plaintiffs
filed a notice with the Court indicating their intention not to
file a Third Amended Complaint and requesting that the Court enter
judgment. The Court entered judgment and dismissed all claims in
the case the same day.
The lead plaintiffs have appealed the judgment to the U.S. Court of
Appeals for the Ninth Circuit. The Court has scheduled oral
arguments for the appeal for September 2, 2021.
The Company denies and will vigorously defend against the
allegations in the case. No assurances can be given as to the
timing, outcome or consequences of this matter.
LendingClub Corporation operates an online lending marketplace
platform that connects borrowers and investors in the United
States. The company's marketplace facilitates various types of loan
products for consumers and small businesses, including unsecured
personal loans, unsecured education and patient installment loans,
auto refinance loans, and small business loans. It also enables
investors to invest in a range of loans based on term and credit.
The company was founded in 2006 and is headquartered in San
Francisco, California.
LENDINGCLUB CORP: Trial in Bradford Suit Set for September 2022
---------------------------------------------------------------
LendingClub Corporation said in its Form 10-Q Report filed with the
Securities and Exchange Commission on August 4, 2021, for the
quarterly period ended June 30, 2021, that Court has called the
Bradford v. Lending Club Corporation, No. 4:21-cv-00588 matter to
trial in September 2022.
In February 2021, a putative class action lawsuit was filed against
the Company in the U.S. District Court for the Southern District of
Texas (Bradford v. Lending Club Corporation, No. 4:21-cv-00588).
The lawsuit asserts a cause of action under the Fair Credit
Reporting Act (FCRA) based on allegations that the Company obtained
plaintiff's credit report without his consent or authorization and
without a permissible purpose under the FCRA.
Plaintiff seeks to represent a class of allegedly similarly
situated persons in the case and seeks monetary, injunctive, and
declaratory relief, among other relief.
Plaintiff has amended the complaint to assert additional
allegations regarding the Company's purported requests for
plaintiff's credit report from another credit reporting agency.
The Company has since filed its answer to plaintiff's complaint and
discovery has begun. The Court has called this matter to trial in
September 2022. No assurances can be given as to the timing,
outcome or consequences of this matter.
LendingClub Corporation operates an online lending marketplace
platform that connects borrowers and investors in the United
States. The company's marketplace facilitates various types of loan
products for consumers and small businesses, including unsecured
personal loans, unsecured education and patient installment loans,
auto refinance loans, and small business loans. It also enables
investors to invest in a range of loans based on term and credit.
The company was founded in 2006 and is headquartered in San
Francisco, California.
LIBERTY LATIN: Suits Against VTR Finance Consolidated
-----------------------------------------------------
Liberty Latin America Ltd. said in its Form 10-Q Report filed with
the Securities and Exchange Commission on August 4, 2021, for the
quarterly period ended June 30, 2021, that the Court of Appeals of
Santiago issued a ruling joining the four class action complaints
filed against VTR Finance N.V. into one legal procedure.
On August 25, 2020, VTR Finance N.V. (VTR) was notified that
Chilean National Consumer Authority (SERNAC) had filed a class
action complaint against VTR in the 14th Civil Court of Santiago.
The complaint relates to consumer complaints regarding VTR's
broadband service and capacity during the pandemic and raises
claims regarding, among other things, VTR's disclosure of its
broadband speeds and aggregate capacity availability and VTR's
response to address the causes of service instability during the
pandemic.
VTR was also notified in August about two additional class action
complaints filed by consumer associations La Organizacion de
Consumidores y Usuarios de Chile and Asociacion Gremial de
Consumidores Y Usuarios de Chile (ODECU and AGRECU) making similar
claims and allegations.
The class action complaint of ODECU was filed in the 21st Civil
Court of Santiago, and the class action complaint of AGRECU was
filed in the 26th Civil Court of Santiago. The complaint of SERNAC
and ODECU seeks (i) the Court declare that VTR has infringed the
rules of the Consumer Protection Law; (ii) the responsibility of
VTR for such infractions and, if so, establish the corresponding
fines; and (iii) compensatory damages. In the case of AGRECU, the
complaint only seeks compensatory damages.
On October 22, 2020, VTR was notified of a fourth class action
complaint filed by Conadecus in the 16th Civil Court of Santiago
alleging that VTR did not adhere to certain call center, technical
visit and service level requirements under applicable law.
On April 21, 2021, the Court of Appeals of Santiago issued a ruling
joining the four class action complaints into one legal procedure.
Liberty Latin said, "We believe that the allegations contained in
the complaints are without merit, in particular as it relates to
VTR's service and response during the pandemic and intend to defend
the complaints vigorously. We cannot predict at this point the
length of time that these actions will be ongoing. Additionally, a
liability, if any, or a reasonable range of loss is not currently
determinable based upon the current facts and circumstances of
these claims."
Liberty Latin America Ltd. provides various telecommunications
services. Its services primarily include video, broadband Internet,
fixed-line telephony, and mobile services. Liberty Latin America
Ltd. was incorporated in 2017 and is based in Denver, Colorado.
LIVE OAK BANCSHARES: Faces McAlear Purported Class Suit
-------------------------------------------------------
Live Oak Bancshares, Inc. said in its Form 10-Q Report filed with
the Securities and Exchange Commission on August 4, 2021, for the
quarterly period ended June 30, 2021, that the company is facing a
purported class action suit entitled, Joseph McAlear, individually
and on behalf of all others similarly situated v. Live Oak
Bancshares, Inc. et al.
On March 12, 2021, a purported class action was filed against the
Company in the United States District Court for the Eastern
District of North Carolina, Joseph McAlear, individually and on
behalf of all others similarly situated v. Live Oak Bancshares,
Inc. et al.
The complaint alleges the existence of an agreement between the
Company, nCino, Inc. and Apiture, LLC in which those companies
purportedly sought to restrain the mobility of employees in
violation of antitrust laws by agreeing not to solicit or hire each
other's employees.
The complaint alleges violations of Section 1 of the federal
Sherman Act (15 U.S.C. Section 1) and violations of Sections 75-1
and 75-2 of the North Carolina General Statutes.
The plaintiff seeks monetary damages, including treble damages,
entitlement to restitution, disgorgement, attorneys' fees, and pre-
and post-judgment interest.
Live Oak Bancshares, Inc. is a financial holding company and a bank
holding company headquartered in Wilmington, North Carolina
incorporated under the laws of the state of North Carolina in
December 2008. The Company conducts business operations primarily
through its commercial bank subsidiary, Live Oak Banking Company.
LUMBER LIQUIDATORS: Steele Class Action Ongoing in Canada
---------------------------------------------------------
Lumber Liquidators Holdings, Inc. said in its Form 10-Q Report
filed with the Securities and Exchange Commission on August 4,
2021, for the quarterly period ended June 30, 2021, that the
company continues to defend a class action lawsuit in Canada
initiated by Sarah Steele.
On or about April 1, 2015, Sarah Steele filed a purported class
action lawsuit in the Ontario, Canada Superior Court of Justice
against the Company.
In the complaint, Steele's allegations include strict liability,
breach of implied warranty of fitness for a particular purpose,
breach of implied warranty of merchantability, fraud by
concealment, civil negligence, negligent misrepresentation and
breach of implied covenant of good faith and fair dealing relating
to the Company's Chinese-manufactured laminate flooring products.
Steele did not quantify any alleged damages in her complaint, but
seeks compensatory damages, punitive, exemplary and aggravated
damages, statutory remedies, attorneys' fees and costs.
Lumber Liquidators said, "While the Company believes that a further
loss associated with the Steele litigation is reasonably possible,
the Company is unable to reasonably estimate the amount or range of
possible loss."
No further updates were provided in the Company's SEC report.
Lumber Liquidators Holdings, Inc., together with its subsidiaries,
operates as a multi-channel specialty retailer of hard-surface
flooring, and hard-surface flooring enhancements and accessories.
The company also offers its products through its Website, catalogs,
and call center. Lumber Liquidators Holdings, Inc. was founded in
1994 and is headquartered in Toano, Virginia.
LUMBER LIQUIDATORS: Visnack Purported Class Suit Underway
---------------------------------------------------------
Lumber Liquidators Holdings, Inc. said in its Form 10-Q Report
filed with the Securities and Exchange Commission on August 4,
2021, for the quarterly period ended June 30, 2021, that the
company continues to defend a purported class action suit initiated
by Michael Visnack.
On June 29, 2020, Michael Visnack, on behalf of himself and all
others similarly situated filed a purported class action lawsuit in
the Superior Court of California, County of San Diego, on behalf of
all current and former store managers, and others similarly
situated.
The Complaint alleges violation of the California Labor Code
including, among other items, failure to pay wages and overtime,
wage statement violations, meal and rest break violations, unpaid
reimbursements and waiting time, and engaging in unfair business
practices.
The Visnack Plaintiffs seek certification of a class period
beginning September 20, 2019, through the date of Notice of Class
Certification, if granted. The Visnack Plaintiffs did not quantify
any alleged damages but, in addition to attorneys' fees and costs,
they seek unspecified amounts for each of the causes of action such
as unpaid wages and overtime wages, failure to provide meal periods
and rest breaks, payroll record and wage statement violations,
failure to reimburse expenses and waiting time, liquidated and/or
punitive damages, declaratory relief, restitution, statutory
penalties, injunctive relief and other damages.
On December 14, 2020, the court ruled in favor of a motion by the
Company to compel arbitration for Michael Visnack under the
existing agreement between the Company and Mr. Visnack.
The court declined to outright dismiss the putative class claims
but stayed the putative class claims and Private Attorneys General
Act claims pending arbitration. The court denied plaintiff's
request to conduct discovery.
In the first quarter of 2021, the Company received notice that Mr.
Visnack has filed an arbitration claim, which the Company intends
to defend. Mr. Visnack is a Collective Member of the Mason Putative
Class and will have the opportunity to decide whether to
participate in the Mason settlement and release his claims against
the Company, in which case he would be removed as the lead
Plaintiff in the Visnack matter.
In December 2020, the Company began contacting individuals who
constitute the purported class in the Visnack matter and has
offered individual settlements in satisfaction of their claims. To
the extent individuals accepted these settlement offers, they have
released the Company from the claims and been removed from the
purported class.
As of March 31, 2021, the Company had reached an agreement with a
portion of the purported class incurring less than $50 thousand in
fees, taxes, and other costs.
The Company is evaluating the Visnack Putative Class Employees'
claims and intends to defend itself vigorously in this matter.
Given the uncertainty of litigation, the preliminary stage of the
case and the legal standards that must be met for, among other
things, class certification and success on the merits, the Company
cannot estimate the reasonably possible loss or range of loss, if
any, that may result from this action and therefore no accrual has
been made related to this. Any such losses could, potentially, have
a material adverse effect, individually or collectively, on the
Company's results of operations, financial condition and
liquidity.
Lumber Liquidators Holdings, Inc., together with its subsidiaries,
operates as a multi-channel specialty retailer of hard-surface
flooring, and hard-surface flooring enhancements and accessories.
The company also offers its products through its Website, catalogs,
and call center. Lumber Liquidators Holdings, Inc. was founded in
1994 and is headquartered in Toano, Virginia.
LUMEN TECHNOLOGIES: Dismissal of Houser Putative Suit Under Appeal
------------------------------------------------------------------
Lumen Technologies, Inc. said in its Form 10-Q Report filed with
the Securities and Exchange Commission on August 4, 2021, for the
quarterly period ended June 30, 2021, that the appeal in the order
of dismissal in Houser et al. v. CenturyLink, et al., is pending.
Lumen and certain Lumen Board of Directors members and officers
were named as defendants in a putative shareholder class action
lawsuit filed on June 12, 2018 in the Boulder County District Court
of the state of Colorado, captioned Houser et al. v. CenturyLink,
et al. The complaint asserts claims on behalf of a putative class
of former Level 3 shareholders who became CenturyLink, Inc.
shareholders as a result of our acquisition of Level 3.
It alleges that the proxy statement provided to the Level 3
shareholders failed to disclose various material information of
several kinds, including information about strategic revenue,
customer loss rates, and customer account issues, among other
items. The complaint seeks damages, costs and fees, rescission,
rescissory damages, and other equitable relief.
In May 2020, the court dismissed the complaint.
Plaintiffs appealed that decision, and the appeal is pending.
Lumen Technologies, Inc., headquartered in Monroe, Louisiana, is an
integrated communications company that provides an array of
communications services to residential, business, governmental and
customers. In October of 2017, Lumen acquired Level 3, an
international communications company with one of the world's
largest long-haul communications and optical internet backbones.
The company generated approximately $21.2 billion in revenue over
the last 12 months ended September 30, 2020.
LUMEN TECHNOLOGIES: Settlement in Sales Practices Suit Approved
---------------------------------------------------------------
Lumen Technologies, Inc. said in its Form 10-Q Report filed with
the Securities and Exchange Commission on August 4, 2021, for the
quarterly period ended June 30, 2021, that the shareholder class
settlement in the consolidated action entitled, In Re: CenturyLink
Sales Practices and Securities Litigation., was approved by the
Court in July 2021.
In June 2017, a former employee filed an employment lawsuit against
the company claiming that she was wrongfully terminated for
alleging that the company charged some of its retail customers for
products and services they did not authorize.
Thereafter, based in part on the allegations made by the former
employee, several legal proceedings were filed, including consumer
class actions in federal and state courts, a series of securities
investor class actions in federal courts and several shareholder
derivative actions in federal and Louisiana state courts.
The derivative cases were brought on behalf of CenturyLink, Inc.
against certain current and former officers and directors of the
Company and seek damages for alleged breaches of fiduciary duties.
The consumer class actions, the securities investor class actions,
and the federal derivative actions were transferred to the U.S.
District Court for the District of Minnesota for coordinated and
consolidated pretrial proceedings as In Re: CenturyLink Sales
Practices and Securities Litigation.
The company had settled the consumer and securities investor class
actions. The consumer class settlement was previously approved by
the Court and is final.
The shareholder class settlement was approved by the Court in July
2021.
Lumen said, "Approximately 12,000 potential class members elected
to opt out of the consumer class settlement, and we have settled
the claims of approximately 11,000 such class members asserted by
one law firm subject to certain conditions. The derivative actions
remain pending."
Lumen Technologies, Inc., headquartered in Monroe, Louisiana, is an
integrated communications company that provides an array of
communications services to residential, business, governmental and
customers. In October of 2017, Lumen acquired Level 3, an
international communications company with one of the world's
largest long-haul communications and optical internet backbones.
The company generated approximately $21.2 billion in revenue over
the last 12 months ended September 30, 2020.
MDL 2836: Class Certification Order in Zetia Antitrust Suit Vacated
-------------------------------------------------------------------
In the case, In re: ZETIA (EZETIMIBE) ANTITRUST LITIGATION. FWK
HOLDINGS, LLC; CESAR CASTILLO, INC., individually and on behalf of
all those similarly situated; ROCHESTER DRUG COOPERATIVE, INC.,
Plaintiffs-Appellees v. MERCK & COMPANY, INC.; MERCK SHARP & DOHME
CORPORATION; SCHERING PLOUGH CORPORATION; SCHERING CORPORATION; MSP
SINGAPORE CO. LLC; GLENMARK PHARMACEUTICALS, LTD.; GLENMARK
GENERICS INC., USA, Defendants-Appellants, Case No. 20-2184 (4th
Cir.), the U.S. Court of Appeals for the Fourth Circuit vacates the
district court's class certification order and remands for further
proceedings.
The underlying multidistrict litigation is captioned as In re:
ZETIA (EZETIMIBE) ANTITRUST LITIGATION, MDL No. 2:18-md-02836.
A group of pharmaceutical buyers brought the class action against
two manufacturers who allegedly reached an anticompetitive
settlement in a patent dispute.
In the 1980s, Merck began developing a cholesterol-lowering drug.
Eventually, Merck invented ezetimibe, patented and marketed under
the name Zetia. Merck's patent was exclusive through April 2017,
meaning that Merck had the exclusive right to develop ezetimibe
through that date. In 2006, Glenmark sought FDA approval to market
a generic version of Zetia, claiming that Merck's Zetia patent was
"invalid or w[ould] not be infringed by the manufacture, use, or
sale of" Glenmark's generic.
As required by law, Glenmark notified Merck of its generic drug
application. Merck promptly sued Glenmark for patent infringement.
Glenmark did not contest that its proposed generic infringed on
Merck's patent. Instead, Glenmark argued that Merck's patent was
invalid. In 2010, Merck and Glenmark settled the patent dispute.
The settlement agreement allowed Glenmark to launch its generic in
December 2016 -- over four months before the expiration of Merck's
exclusivity period.
The Plaintiffs, on behalf of a small group of drug wholesalers that
purchased Zetia directly from Merck, sued Merck and Glenmark under
federal antitrust law, alleging that the two companies conspired to
inflate the drug's price. The Plaintiffs' case drew parallels to
the Supreme Court's decision in FTC v. Actavis, Inc., 570 U.S. 136
(2013), which concerned the anticompetitive settlement of a patent
case. In Actavis, a brand-name manufacturer sued generic
manufacturers for patent infringement. Under the parties'
settlement agreement, the brand-name manufacturer agreed to a
reverse payment in which it agreed to pay the generic manufacturers
between $240 and $342 million to delay the launch of their generic
products. The FTC then sued both parties, alleging that the reverse
payment was anticompetitive and therefore in violation of federal
antitrust law. The Supreme Court agreed, holding that a "large and
unjustified" reverse payment made "in return for staying out of the
market" may give rise to antitrust liability.
In the case, the Plaintiffs allege that Merck made a "reverse
payment" by giving up its right to sell a generic version of
ezetimibe for the six-month period after Glenmark introduced its
own generic. Because Glenmark was the first to seek FDA approval
for a generic ezetimibe, it had the near-exclusive right to sell a
generic for 180 days after launching it. The right is
near-exclusive because the brandname manufacturer can market a
competing generic, called an "authorized generic," by essentially
rebranding its brand-name drug and selling it at a lower price
point.
In the case, Merck chose to discount its branded drug rather than
launch an authorized generic. Based on that decision, the
Plaintiffs allege that Merck must have agreed not to launch any
authorized generic in exchange for ending the patent litigation
between Merck and Glenmark. According to them, this agreement
constitutes an anticompetitive "reverse payment." Without such an
agreement, Merck and Glenmark would have settled the case by
allowing Glenmark to launch its generic at least two years earlier
than it actually did in December 2016. Had Glenmark's less
expensive generic been available for those two years, the class
would have spent billions less acquiring the generic ezetimibe
instead of Merck's brand-name version.
Three entities sought to represent a class of all direct Zetia
purchasers: FWK Holdings, LLC, Rochester Drug Co-Operative, Inc.,
and Cesar Castillo, Inc. The thirty-two absent class members are
all sophisticated companies with purportedly large claims,
including the "Big Three" wholesalers -- McKesson,
AmerisourceBergen, and Cardinal Health -- "who account for 97% of
all class purchases."
The Plaintiffs moved for class certification in November 2019.
Merck and Glenmark opposed the motion, contending that the proposed
class did not satisfy the requirements of Federal Rule of Civil
Procedure 23. A magistrate judge issued a report and recommendation
to certify the class in June 2020, to which Merck and Glenmark
objected. In August 2020, the district court adopted the report,
overruled all objections, and certified the class. Merck and
Glenmark timely appealed.
Discussion
The district court determined that the putative class of 35
purchasers satisfied the class certification requirements set forth
in Federal Rule of Civil Procedure 23. The Fourth Circuit holds
that the district court's numerosity analysis fell short in several
respects. It commends the magistrate judge and district court for
their careful and thorough adjudication of the class certification
motion. But the Fourth Circuit it compelled to conclude that the
court rested its numerosity analysis on faulty logic.
For starters, the district court appears to have based its
numerosity determination on its reasoning that "multiple individual
trials" would result if the case proceeded without class status.
But "the text of Rule 23(a)(1) refers to whether 'the class is so
numerous that joinder of all members is impracticable,' not whether
the class is so numerous that failing to certify presents the risk
of many separate lawsuits." The district court's numerosity
analysis ran afoul of this important principle in two critical
ways.
First, given the district court's conclusion that "judicial economy
is the most persuasive of the numerosity factors," the Fourth
Circuit is left in the dark as to whether this faulty logic played
into the district court's numerosity analysis. When analyzing the
judicial-economy factor on remand, the district court should
consider whether judicial economy favors either a class action or
joinder. Otherwise, the judicial-economy factor would always favor
class certification, which is simpler to manage than individual
lawsuits. In fact, even compared to joinder, class certification
will often be preferable from a judicial economy perspective.
Second, in analyzing the class members' ability and motivation to
litigate, the Fourth Circuit holds that the district court again
focused its analysis on the economics of individual suits. In
considering the feasibility of pursing individual claims, the
magistrate judge and district court seem to acknowledge yet adopt
the Plaintiffs' "assumption, without any evidence, that absent a
class action, the smaller claimants would sue individually and thus
bear the entire cost of litigation." This misconstrues the
standard. Indeed, "there has been no showing that it would be
uneconomical for smaller claimants to be individually joined as
parties in a traditional lawsuit." The Plaintiffs must bring to
bear some evidence to this effect -- and the district court may not
consider the economics of individual suits in analyzing this
factor.
To be sure, the Fourth Circuit gives "district courts considerable
discretion in making numerosity determinations." But district
courts must provide a "rigorous analysis" to allow for meaningful
appellate review on the numerosity factor. And that "rigorous
analysis" must be premised on a correct understanding of Rule
23(a)(1). Because the district court's numerosity analysis
improperly looked to the impracticability of individual suits
rather than joinder, the Fourth Circuit is compelled to conclude
that legal error infected the court's class-certification decision.
It therefore vacates the district court's class-certification
order.
Merck and Glenmark raise two additional arguments related to class
certification, which the Fourth Circuit can quickly resolve. First,
Merck and Glenmark challenge the district court's adequacy
determination, arguing that none of the named Plaintiffs can
adequately represent the class.
The Fourth Circuit sees no abuse of discretion. The court did not
abuse its discretion in finding that "the record in the case
satisfactorily demonstrates FWK's adequacy to serve as class
representative." The Fourth Circuit also finds no abuse of
discretion in the decision that named Plaintiff Rochester, despite
its current Chapter 11 bankruptcy proceedings, still "shares common
objectives and the same factual and legal positions" as the other
class members. Accordingly, it rejects Merck's and Glenmark's
contention that the district court abused its discretion in finding
the named Plaintiffs adequate class representatives.
Second, Merck and Glenmark challenge the district court's
predominance determination. They argue that the district court
erred in permitting the Plaintiffs to use industry- and class-wide
averages to prove injury for the purposes of Article III and
antitrust standing.
The Fourth Circuit agrees with the district court's explaination
that a reasonable jury could find that all class members would have
purchased some generic form of the drug -- rather than the more
expensive brand -- had a generic been available earlier. In
addition, it finds no issue with the practice of proving injury by
class-wide averages, which the district court correctly
characterized as "common." Moreover, even if some
individualized-injury inquiry is ultimately required at trial for
some defendants, common issues will still predominate. The Fourth
Circuit therefore affirms the district court's predominance
finding.
The Plaintiffs invite the Fourth Circuit to review the district
court's dismissal of 23 companies. But the Plaintiffs never filed a
cross-petition raising the issue. And "the failure to file a
petition for permission to cross-appeal is a jurisdictional defect,
barring" consideration of any issue that may have been raised.
Accordingly, the Fourth Circuit declines the Plaintiffs' invitation
to exercise pendant appellate jurisdiction.
In light of the foregoing, the Fourth Circuit affords district
courts substantial deference in certifying classes. Its Opinion
does not change that deference. Rather, it simply requires that the
district court considers only those factors permitted by Rule
23(a)'s numerosity requirement and that the court conducts the
requisite full-throated analysis. The judgment of the district
court is vacated and remanded with instructions.
A full-text copy of the Court's Aug. 4, 2021 Order is available at
https://tinyurl.com/2renp3yv from Leagle.com.
ARGUED: Theodore J. Boutrous, Jr. -- tboutrous@gibsondunn.com --
GIBSON, DUNN & CRUTCHER LLP, in Los Angeles, California, for
Appellants.
Thomas M. Sobol -- tom@hbsslaw.com -- HAGENS BERMAN SOBOL SHAPIRO
LLP, in Cambridge, Massachusetts, for Appellee.
ON BRIEF: Eric J. Stock -- estock@gibsondunn.com -- New York, New
York, Veronica S. Lewis, Ashley Johnson -- ajohnson@gibsondunn.com
-- in Dallas, Texas, Samuel J. Liversidge --
sliversidge@gibsondunn.com -- Christopher D. Dusseault --
cdusseault@gibsondunn.com -- Bradley J. Hamburger --
bhamburger@gibsondunn.com -- Daniel R. Adler --
dadler@gibsondunn.com -- GIBSON, DUNN & CRUTCHER LLP, Los Angeles,
California; Stephen E. Noona, KAUFMAN & CANOLES, P.C., Norfolk,
Virginia, for Appellants Merck & Co., Inc.; Merck Sharp & Dohme
Corp.; Schering-Plough Corp.; Schering Corp.; and MSP Singapore Co.
LLC, Steven A. Reed, R. Brendan Fee, Zachary M. Johns, Jessica J.
Taticchi, Philadelphia, Pennsylvania, Stacey Anne Mahoney, MORGAN,
LEWIS & BOCKIUS LLP, New York, New York; Richard H. Ottinger,
Dustin M. Paul, Jennifer L. Eaton, VANDEVENTER BLACK LLP, Norfolk,
Virginia, for Appellants Glenmark Pharmaceuticals Ltd. and Glenmark
Pharmaceuticals Inc., USA. Erin C. Burns, Hannah Schwarzchild,
Bradley J. Vettraino, HAGENS BERMAN SOBOL SHAPIRO LLP, Cambridge,
Massachusetts, for Appellee FWK Holdings, LLC and the Direct
Purchaser Class. William H. Monroe, Jr., Marc C. Greco, Kip A.
Harbison, Michael A. Glasser, GLASSER & GLASSER, P.L.C., Norfolk,
Virginia, for Appellees FWK Holdings, LLC; Cesar Castillo, Inc.;
and Rochester Drug Co-Operative, Inc. John D. Radice, RADICE LAW
FIRM, P.C., Princeton, New Jersey; Paul E. Slater, Joseph M. Vanek,
David P. Germaine, Alberto Rodriguez, SPERLING & SLATER, P.C.,
Chicago, Illinois; Michael Roberts, Stephanie Smith, Karen Halbert,
Will Wilson, ROBERTS LAW FIRM, P.A., Little Rock, Arkansas; Sharon
K. Robertson, Donna M. Evans, COHEN MILSTEIN SELLERS & TOLL PLLC,
New York, New York; Steve D. Shadowen, Matthew C. Weiner, HILLIARD
& SHADOWEN LLP, Austin, Texas; Joseph H. Meltzer, Terence S.
Ziegler, KESSLER TOPAZ MELTZER & CHECK LLP, Radnor, Pennsylvania,
for Appellee FWK Holdings, LLC and the Direct Purchaser Class.
Linda P. Nussbaum, NUSSBAUM LAW GROUP, P.C., New York, New York;
Jayne A. Goldstein, SHEPHERD, FINKELMAN, MILLER & SHAH, LLP, Fort
Lauderdale, Florida, for Appellee Cesar Castillo and the Direct
Purchaser Class. David F. Sorensen, Ellen T. Noteware, Nicholas
Urban, BERGER MONTAGUE PC, Philadelphia, Pennsylvania; Barry Taus,
Archana Tamoschunas, Kevin Landau, TAUS, CEBULASH & LANDAU, LLC,
New York, New York; Peter R. Kohn, Joseph T. Lukens, Philadelphia,
Pennsylvania, Bradley J. Demuth, FARUQI & FARUQI, LLP, New York,
New York, for Appellee Rochester Drug Co-Coperative, Inc. and the
Direct Purchaser Class.
MGP INGREDIENTS: Bid to Nix Suit Over Sales of Aged Whiskey Pending
-------------------------------------------------------------------
MGP Ingredients Inc. said in its Form 10-Q Report filed with the
Securities and Exchange Commission on August 4, 2021, for the
quarterly period ended June 30, 2021, that the motion to dismiss
the complaint in the consolidated putative class action suit
entitled, In re MGP Ingredients, Inc. Securities Litigation, is
pending.
In 2020, two putative class action lawsuits were filed in the
United States District Court for District of Kansas, naming the
Company and certain of its current and former executive officers as
defendants, asserting claims under Sections 10(b) and 20(a) of the
Securities Exchange Act of 1934.
The plaintiffs seek to pursue claims on behalf of a class
consisting of purchasers or acquirers of the Company's Common Stock
during certain specified periods (the "Class Periods").
On May 28, 2020, the two lawsuits were consolidated and the Court
appointed City of Miami Fire Fighters' and Police Officers'
Retirement Trust as lead plaintiff. The consolidated action is
captioned In re MGP Ingredients, Inc. Securities Litigation and the
file is maintained under Master File No. 2:20-cv-2090-DDCJPO.
On July 22, 2020, the Retirement Trust filed a consolidated Amended
Complaint. The Consolidated Complaint alleges that the defendants
made false and/or misleading statements regarding the Company's
forecasts of sales of aged whiskey, and that, as a result the
Company's Common Stock traded at artificially inflated prices
throughout the Class Periods.
The plaintiffs seek compensatory damages, interest, attorneys'
fees, costs, and unspecified equitable relief, but have not
specified the amount of damages being sought.
On September 8, 2020, defendants filed a Motion to Dismiss the
Consolidated Amended Complaint. The Motion has been fully briefed
and remains pending.
Discovery is stayed while the motion is pending.
The Company intends to continue to vigorously defend itself in this
action.
MGP Ingredients Inc. develops and produces natural grain-based
products in the United States. The Company is based in Atchison,
Kansas.
MICHIGAN: District Court Dismisses Catlett Class Suit v. MDOC
-------------------------------------------------------------
In the case, JULIA CATLETT, TRACEY WHITE, SEMERIA GREENE and JAMIA
ROBINSON, Plaintiffs v. HEIDI WASHINGTON, STEVEN ADAMSON, JEREMY
HOWARD and ANNETTE TELLAS in their individual and official
capacities, Defendants, Case No. 20-13283 (E.D. Mich.), Judge Paul
D. Borman of the U.S. District Court for the Eastern District of
Michigan, Southern Division, granted the Defendants' Motion to
Dismiss Plaintiffs' Amended Complaint.
Plaintiffs Jamia Robinson, Julia Catlett, Tracy White, and Semeria
Greene, are female inmates within the Michigan Department of
Corrections ("MDOC"). Each Plaintiff wears a hijab or turban-style
hijab pursuant to their Muslim or Moorish faith. The Plaintiffs
bring claims under the First Amendment to the U.S. Constitution, 42
U.S.C. Section 1983, the Religious Land Use and Institutionalized
Persons Act (RLUIPA), 41 U.S.C. Section 2000, et seq., and the
Michigan State Constitution, Art. I Sec. 4, alleging that the
MDOC's Prisoner Photographic Identification Policy "forces
prisoners who wear religious head coverings to remove those head
coverings for a photograph, even when doing so violates the
sincerely held religious beliefs of those prisoners." MDOC permits
the wearing of hijabs within its facilities.
On May 16, 2011, MDOC implemented the Prisoner Photographic
Identification Policy to establish protocols for taking photographs
of prisoners for their processing and identification. Section
04.04.133(B) of the Photographic Identification Policy states that
when an individual is processed into the MDOC that a photo will be
taken of a prisoner's face and directs that "headgear will not be
worn."
The Plaintiffs also allege that these identification photos are
maintained in the prisoner files, in the Counselor's office, and in
the Offender Management Network Information system, which creates a
"permanent public record" of a prisoner's identification
photograph. Further, the photographs are published on a public
website known as the Offender Tracking Information System ("OTIS"),
which is available for search by the public. The Plaintiffs allege
that they were each subjected to the photographic policy and were
forced to remove their religious head coverings for those pictures
in violation of their sincerely held religious beliefs.
The Plaintiffs filed a Class Action Complaint on Dec. 14, 2020,
against Defendants Heidi Washington, Director of MDOC, Steven
Adamson, Special Activities Coordinator at MDOC, Jeremy Howard,
acting Warden of Women's Huron Valley Correctional Facility
("WHV"), and Annette Tellas, Chaplain at WHV. Each Defendant is
sued in their individual and official capacities. Plaintiffs filed
an Amended Class Action Complaint on Jan. 25, 2021, adding
Plaintiff Jamia Robinson.
The Defendants filed a Motion to Dismiss Plaintiffs' Amended
Complaint on Feb. 17, 2021.
Analysis
A. 42 U.S.C. Section 1983 and RLUIPA Claims against Defendants
Jeremy Howard, Annette Tellas, and Steven Adamson in their
Individual Capacities
In order to state a claim against individual officers under both 42
U.S.C. Section 1983 and the RLUIPA, a plaintiff must allege facts
in the complaint, taken as true, which demonstrate the personal
involvement of each individual defendant in the alleged violation.
1. Defendant Jeremy Howard
The only specific allegations in the Amended Complaint against
Defendant Jeremy Howard, the WHV Warden, are allegations that
Plaintiffs Catlett and Greene wrote to Defendant Howard regarding
the Photographic Policy and obtained no relief. Specifically, they
did not receive a written or oral response to their writings.
In the Sixth Circuit, Judge Borman finds that solely alleging that
an official failed to respond to grievances has been held to be
insufficient to state a claim against a prison official in their
individual capacity under 42 U.S.C. Section 1983. In Shehee v.
Luttrell, the Sixth Circuit reversed a denial of summary judgment
to prison officials whose only involvement in the alleged
constitutional violation was the denial of administrative
grievances. It reasoned that denying administrative grievances did
not amount to participating in or otherwise acting to violate the
plaintiff's rights.
In the case, there is no other specific allegation, beyond a
failure to respond to written grievances, that Defendant Howard
acted to deprive the Plaintiffs of their constitutional rights or
substantially burdened their religious exercise under the RLUIPA.
Accordingly, the 42 U.S.C. Section 1983 and RLUIPA claims against
Defendant Jeremy Howard in his individual capacity for damages are
dismissed.
2. Defendant Annette Tellas
There are no specific allegations in the Amended Complaint against
Defendant Annette Tellas, the WHV Chaplain. Thus, there is no basis
for Judge Borman to conclude that Defendant Tellas personally acted
to deprive the Plaintiffs of their First Amendment rights or
substantially burdened their religious exercise under the RLUIPA.
Accordingly, the 42 U.S.C. Section 1983 and RLUIPA claims against
Defendant Annette Tellas in her individual capacity are dismissed
3. Defendant Steven Adamson
There are no specific allegations against Defendant Adamson in the
Amended Complaint. Accordingly, the 42 U.S.C. Section 1983 and
RLUIPA claims against Defendant Adamson in his individual capacity
are dismissed.
B. Michigan State Constitutional Claims Against All Defendants in
their Official Capacities
In Jones v. Powell, 462 Mich. 329, 337 (2000), the Michigan Supreme
Court held that there is no independent damages remedy against
individual government employees for violations of the Michigan
State Constitution. Citing to its prior opinion in Smith v. Dep't.
of Public Health, 428 Mich. 540 (1987), it recognized a claim for
monetary damages under the state constitution only in a narrow
category of cases where the State of Michigan is the party
defendant and other remedies are generally unavailable because the
state is immune from suit under the doctrine of sovereign immunity.
It emphasized, however, that "those concerns are inapplicable" to
actions such as this one, where an individual defendant is being
sued, because "a plaintiff may bring an action against an
individual defendant under 42 U.S.C. Section 1983 and common-law
tort theories."
In the case, Judge Borman holds that the Plaintiffs have several
potential avenues for monetary relief besides the alleged state
constitutional violation. Notably, they have sued the the
Defendants under 42 U.S.C. Section 1983 in their individual
capacities for money damages. Therefore, in light of Jones, the
Plaintiffs may not pursue damages against Defendant Washington on
claims arising under the Michigan State Constitution. Accordingly,
the individual capacity claims against all the Defendants for
damages under the Michigan Constitution are dismissed.
C. 42 U.S.C. Section 1983 and RLUIPA Official Capacity Claims for
Damages
The Defendants move to dismiss the 42 U.S.C. Section 1983 and
RLUIPA claims for damages against each Defendant in their official
capacities. The Plaintiffs clarify in their Response that they are
bringing individual capacity claims against the Defendants for
damages and official capacity claims for injunctive and declaratory
relief. Because this distinction was not clear from the Amended
Complaint, Judge Borman addresses the issue.
The Judge explains that generally, claims against defendants in
their official capacities, i.e, in their capacity as agents of the
state under 42 U.S.C. Section 1983, are subject to dismissal on the
basis that "the United States Supreme Court has specifically held
that a State is not a 'person' against whom a Section 1983 claim
for money damages might be asserted," citing Price v. Caruso, 451
F.Supp.2d 889, 902 (E.D. Mich. 2006); Will v. Michigan Dept. of
State Police, 491 U.S. 58, 66 (1989).
The same is true for RLUIPA claims against officials in their
official capacities. Accordingly, because the 42 U.S.C. Section
1983 and RLUIPA official capacity claims for damages against each
Defendant are barred by sovereign immunity, those claims are
dismissed.
Conclusion
Judge Borman dismissed the claims for damages under 42 U.S.C.
Section 1983 and the RLUIPA against Defendants Jeremy Howard,
Annette Tellas, and Steven Adamson in their individual capacities
without prejudice. He dismissed the Michigan State Constitutional
claims against all the Defendants in their individual capacities
with prejudice. He also dismissed the 42 U.S.C. Section 1983 and
RLUIPA claims for damages against each Defendant in their official
capacities with prejudice.
The Order does not resolve all issues raised in the Defendants'
Motion to Dismiss. The Court will set a hearing for oral argument
regarding the 42 U.S.C. Section 1983 and RLUIPA claims against
Defendant Heidi Washington in her individual capacity, as well as
the claims under 42 U.S.C. Section 1983, the RLUIPA, and the
Michigan State Constitution against each Defendant in their
official capacities for injunctive and declaratory relief.
A full-text copy of the Court's Aug. 3, 2021 Opinion & Order is
available at https://tinyurl.com/5ydkxpdb from Leagle.com.
MIDLAND FUNDING: Can Compel Arbitration in Warner NCCAA-FDCPA Suit
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In the case, CURTIS WARNER, on behalf of himself and all others
similarly situated, Plaintiff v. MIDLAND FUNDING, LLC, MIDLAND
CREDIT MANAGEMENT, INC., and SMITH DEBNAM NARRON DRAKE SAINTSING &
MYERS, LLP, Defendants, Case No. 1:18CV727 (M.D.N.C.), Judge
Loretta C. Biggs of the U.S. District Court for the Middle District
of North Carolina granted Midland's Motion to Compel Arbitration
and to Dismiss Class Action Complaint Against Plaintiff Curtis
Warner, and granted in part and denied in part its Amended Motion
to Seal.
The case is a civil action arising from the debt collection and
solicitation activities of the Defendants Midland Funding, Midland
Credit Management, Inc. ("MCM"), and Smith Debnam. Plaintiff Warner
brings the action on behalf of himself, and others similarly
situated, alleging that the Defendants' debt collection activities
violated the North Carolina Collection Agency Act ("NCCAA"), N.C.
Gen. Stat. Section 58-70-1, et seq., and the federal Fair Debt
Collection Practices Act ("FDCPA"), 15 U.S.C. Section 1692, et
seq.
At some point in 2014, the Plaintiff obtained a J. Crew credit card
from Comenity Bank. According to his Complaint, the Plaintiff
became unable to make the minimum required payments on his credit
account, and his account was subsequently written off as a loss by
Comenity even though the debt was still owed, and the account was
then sold to Midland on or about June 22, 2017. In November of the
same year, MCM mailed the Plaintiff a "Pre-Legal Notification"
which stated that he had an outstanding balance and, if he did not
provide payment by Nov. 17, 2017, or MCM did not hear from him by
that date, it would forward the account to an attorney.
The following year, on June 7, 2018, Defendant Smith Debnam
contacted the Plaintiff with a notice that stated, among other
things, that if he did not dispute the account, legal action may
result. Subsequently, on July 12, 2018, Smith Debnam sent the
Plaintiff a letter entitled "Notice of Intent to File Legal Action"
regarding the alleged debt. Attached to the Notice of Intent was a
form cardmember agreement and a periodic credit card statement. In
response, the Plaintiff initiated the action seeking "declaratory
and injunctive relief as well as actual and statutory damages"
against all three named Defendants.
On Dec. 21, 2018, Midland filed a Motion to Compel Arbitration and
Dismiss, which requests that the Court orders the dispute to
binding arbitration for the individual claims asserted by the
Plaintiff and to dismiss his purported class action claims because
he waived the right to assert claims as a class or collective
action in a binding written contract. Midland has also moved to
seal certain attachments to their reply brief supporting their
Motion to Compel and Dismiss.
Motion to Compel Arbitration
According to Midland, the Plaintiff entered into a binding
arbitration agreement with Comenity, Midland's predecessor in
interest, and Comenity's right to compel arbitration transferred to
Midland upon assignment. In addition to its Memorandum in Support
of its Motion to Compel and Motion to Dismiss, Midland filed
declarations of Ms. Andrea Dent, senior paralegal with Comenity,
LLC, and Sean Mulcahy. Included with the Dent and Mulcahy
Declarations are four exhibits: (1) a Bill of Sale and a Portfolio
Level Affidavit of Sale; (2) a Copy of Plaintiff's Credit Card
Account Agreement; (3) a final copy of the billing statement sent
to the Plaintiff from Comenity Bank; and (4) a letter June 22, 2017
purporting to inform the Plaintiff that Comenity Bank had charged
off his account and sold it to Midland Funding.
Midland argues that Comenity Bank sold and assigned all rights,
title, and interest in the account to Midland, including its right
to arbitrate. In response, the Plaintiff does not contest the
validity of an arbitration agreement, rather challenges whether
Midland has the contractual authority to enforce the Credit Card
Agreement's Arbitration Provision. In furtherance of this
challenge, the Plaintiff offers three major arguments as to why the
Court should not compel arbitration: (1) the Defendants have not
demonstrated that the Credit Card Agreement provided applied to the
Plaintiff's account; (2) that the Defendants have not shown that
Comenity Bank assigned the right to invoke arbitration to Midland;
and (3) that the dispute does not fall within the scope of the
arbitration agreement the Defendants rely upon.
1. Whether the Terms of the Credit Card Agreement Apply to
Plaintiff's Account
Judge Biggs concludes that a document is not necessary to make a
showing that a party has agreed to arbitrate. Under Delaware law,
the sole act of making a purchase on a credit card account binds
the card holder to the cardmember agreement governing the account.
The Plaintiff states that he used the relevant account.
Additionally, the Defendants have provided a sworn affidavit
indicating that the Credit Card Agreement was mailed to the
Plaintiff.
Midland has also provided credible, admissible evidence to support
a finding that the Credit Card Agreement, and Arbitration Provision
therein, does apply to the Plaintiff's account. Moreover, the
Plaintiff has failed to produce any evidence to substantiate his
denial of the agreement to arbitrate.
2. Whether the rights under the Arbitration Agreement were assigned
to Midland
According to the Plaintiff, the Defendants have not demonstrated
that the rights under the Arbitration Agreement were assigned to
Midland and have failed to demonstrate that the scope of the
arbitration agreement extended to grant an assignee -- Midland --
the ability to elect arbitration. In support of his argument that
Midland has not provided evidence that Comenity assigned its
arbitration rights to them, he points to two unrelated agreements
between Midland and non-parties to show that "Midland sometimes
takes assignment of charged-off accounts from banks without taking
assignment of the banks' right to arbitrate."
Judge Biggs first considers whether Comenity's rights under the
Arbitration Agreement were assigned to Midland. She does not find
the unrelated agreements between Midland and entities that are not
a part of the suit germane to the matter. She will not engage in
further discussion related to these irrelevant agreements. The
Judge also finds that the Defendants have submitted sufficient
evidence to establish that Midland is indeed the assignee of
Comenity's rights under the Credit Card Agreement.
3. Whether an Assignee can Elect Arbitration
The Plaintiff argues that "the proper analysis for determining the
scope of Midland's arbitration right is not to strike out the words
'Comenity Bank' in the Credit Card Agreement and replace them with
'Midland.'" To that end, he argues that the words "we," "us," and
"our" in that Arbitration Provision are not defined to include
assignees of Comenity.
Judge Biggs opines that Midland has presented sufficient evidence
to establish that they may enforce the arbitration agreements
entered between the Plaintiffs and the Midland's predecessors in
interest. As Comenity's assignee, Midland enjoys the same rights
that were enjoyed by Comenity, including its right to elect
arbitration. Moreover, to conclude otherwise would render other
parts of the Credit Card Agreement surplusage. It is a fundamental
principle of contract law that a contract should be read as a
whole.
Because all of the Plaintiff's claims in the instant matter arise
from a dispute subject to the arbitration agreement, dismissal of
the action is appropriate. Judge Biggs now moves to Midland's
Amended Motion to Seal.
Motion to Seal
Midland has moved this Court to seal portions of Exhibits 1 and 2
to the Mulcahy Declaration that were filed in connection to the
reply in support of to their Motion to Compel Arbitration and to
Dismiss Class Action Complaint. Exhibit 1 to the Mulcahy
Declaration is a copy of the Purchase Agreement between Midland
Funding and Comenity Bank. Exhibit 2 is a portion of the sale file
of the portfolio sale ("Sale File").
According to Midland, the exhibits "contain confidential,
competitively sensitive business information regarding Midland
Funding's acquisition of a portfolio of credit card accounts,
including the Plaintiff's, from Comenity Bank." The Defendants
argue that sealing the exhibits is necessary to protect Midland
from significant competitive harm. The Plaintiff also asserts that
certain contents of the exhibits are not relevant to the Court's
determination of whether Comenity Bank excluded the right to
arbitrate from the assignment. He opposes Midland's motion and
argues that their motion does not comply with the Court's Local
Rules and have failed to provide specific reasons to keep the two
exhibits from public view.
Judge Biggs finds that the notice requirements have been satisfied.
Public notice of the instant request to seal was given in February
2019 when the Defendants initially moved to seal and filed their
accompanying brief. The Judge permits the sealing of the Purchase
Agreement and certain portions of the Sale File. The remaining
portions of the Purchase Agreement are not germane to the Court's
determination of Defendants' motion to compel.
Therefore, Judge Biggs grants Midland's motion to seal as it
relates to all personal identifying information related to the
Plaintiff that was previously redacted and information that was not
relevant to the Court decision to compel arbitration. However,
information the Court used to reach its determination to compel
arbitration should not be redacted. Specifically, the Judge does
not grant the sealing of the following columns: (i) Division Name
(DIV-NAME); (ii) Open Date (OPEN-DATE); and (iii) Last Purchase
Date (LAST-PRCH-DATE).
Order
Judge Biggs granted the Defendants' Motion to Compel Arbitration
and to Dismiss Class Action Complaint. She granted in part and
denied in part Midland Defendants' Amended Motion to Seal.
Specifically, Midland is directed to file a public version of the
Sale File that does not redact the Division Name, the Open Date,
and the Last Purchase date.
The Judge denied as moot (i) Midland Defendants' initial Motion to
Seal and (ii) the Plaintiff's Motion to Certify Class and Motion
for Preliminary Injunction, currently stayed pursuant to an Order
of the Court.
Upon the filing of the Order, the action will be dismissed.
A full-text copy of the Court's Aug. 4, 2021 Memorandum Opinion &
Order is available at https://tinyurl.com/2d2b34wz from
Leagle.com.
MIDLAND FUNDING: Md. App. Affirms Judgments in Cain and Gambrell
----------------------------------------------------------------
In the cases, CLIFFORD CAIN, et al. v. MIDLAND FUNDING, LLC, and
TASHA GAMBRELL v. MIDLAND FUNDING, LLC, Case Nos. 38 & 39,
September Term, 2020 (Md. App.), the Court of Appeals of Maryland:
(i) affirms the decision of the Court of Special Appeals in
part, and reverses it in part, in the case of Cain; and
(ii) affirms the decision of the Court of Special Appeals in
the case of Gambrell in its entirety.
In the instant cases, the Court of Appeals must decide the
applicable statute of limitations for claims filed by consumer
debtors against a consumer debt buyer, Midland, alleging improper
debt collection activities in connection with money judgments that
Midland obtained against the Plaintiffs at a time when Midland was
not licensed as a collection agency under Maryland law.
These matters originated as two separate putative class action
cases that were filed against Midland in Maryland circuit courts.
Petitioner Clifford Cain, Jr. filed a putative class action against
Midland in the Circuit Court for Baltimore City on July 30, 2013.
Petitioner Tasha Gambrell filed a putative class action against
Midland in the Circuit Court for Anne Arundel County on Sept. 28,
2015. In both cases, the Petitioners allege that Midland obtained
judgments against the named plaintiffs and similarly situated
members of the putative classes for consumer debts during a time
period when Midland did not have a collection agency license under
the Maryland Collection Agency Licensing Act ("MCALA"). Both
putative class actions included counts for declaratory judgment
(seeking a declaration that the judgments obtained by Midland were
void), injunctive relief preventing Midland from collecting on the
judgments in the future, and money damages arising from claims for
unjust enrichment and violations of the Maryland Consumer Debt
Collection Act ("MCDCA")2 and the Maryland Consumer Protection Act
("MCPA").
In both cases, the circuit courts resolved the cases by motion. In
Mr. Cain's case, the circuit court entered an order granting
summary judgment to each party in part, and a separate declaratory
judgment declaring the rights of the parties. In Ms. Gambrell's
case, the circuit court granted Midland's motion to dismiss.
Both cases were appealed to the Court of Special Appeals. That
court issued an unreported opinion in each case. With respect to
Mr. Cain's case, the Court of Special Appeals determined that it
had jurisdiction to consider Mr. Cain's appeal, concluding that the
circuit court's summary judgment order and declaratory judgment
constituted a final judgment. Aside from that procedural issue,
which was unique to Mr. Cain's case, the Court of Special Appeals
resolved Mr. Cain's and Ms. Gambrell's claims in the same manner.
In each instance, the intermediate appellate court held that our
decision in LVNV Funding LLC v. Finch, 463 Md. 586 (2019) ("Finch
III") resolved the Petitioners' declaratory judgment counts and
that under Finch III, the judgments obtained when Midland was
unlicensed were not void. The court also held that, since
Petitioners' judgments had been satisfied, they were not entitled
to injunctive relief because Midland was no longer collecting on
them. With respect to the remaining claims seeking restitution
under an unjust enrichment theory and money damages for the
statutory claims, the Court of Special Appeals held that the claims
were barred by the general three-year statute of limitations
codified at Maryland Code, Courts and Judicial Proceedings Article
("CJ") Section 5-101.
The court rejected the Petitioners' argument that the claims
constituted "actions on a judgment" and were therefore subject to a
12-year statute of limitations applicable to specialties actions
under CJ Section 5-102(a)(3). It similarly rejected the
Petitioners' assertion that the continuing harm doctrine applied to
change the accrual date for their unjust enrichment claims.
Finally, the court rejected Petitioners' argument that the statute
of limitations was tolled under the class action tolling doctrine
based upon Mr. Cain's earlier participation as a putative class
member in a federal class action case, and in Ms. Gambrell's case,
based upon two would-be class action cases pending against Midland
in Maryland state courts.
The Court of Appeals granted Mr. Cain's and Ms. Gambrell's
petitions for writ of certiorari. Because the cases involve the
same questions of law, it issues one opinion to answer the
following questions, which it has rephrased for clarity:
1. Whether the Petitioners' claims for unjust enrichment and
money damages under the MCPA and MCDCA are subject to the
three-year general statute of limitations under CJ Section 5-101?
2. Whether the continuing harm doctrine applies to change the
accrual date for the Petitioners' claims for unjust enrichment and
statutory money damages because Midland garnished the Petitioners'
wages over a period of time after it obtained the judgment?
3. Whether the statute of limitations period on Mr. Cain's
individual claims was tolled under Maryland's class action tolling
doctrine?
4. Whether 28 U.S.C. Section 1367(d) tolled the statute of
limitations on Mr. Cain's claims asserted in his state court class
action based upon his earlier participation as a putative class
member of a federal class action?
5. Whether a final judgment was entered by the circuit court in
Mr. Cain's action that was therefore reviewable by the Court of
Special Appeals?
The Court of Appeals answers yes to questions one, three and five,
and no to question two. Given its holding that Maryland recognizes
cross-jurisdictional class action tolling, the Court of Appeals
determines that it is unnecessary to answer question four. In Ms.
Gambrell's case, it affirms the judgment entered by the Court of
Special Appeals in both cases in its entirety. In Mr. Cain's case,
pertaining to Mr. Cain's individual claims, it affirms the judgment
of the Court of Special Appeals in part, and reverses it in part.
Discussion
As discussed, the Court of Special Appeals correctly determined
that our holding in Finch III applies to the Petitioners' claims
seeking a declaratory judgment that Midland's judgments against
them are void. The Court of Special Appeals also held that the
circuit court correctly dismissed the injunctive relief claims
because the judgments were paid and orders of satisfaction were
filed, and accordingly, there was no basis upon which to grant
injunctive relief. The Petitioners did not seek its review of these
holdings.
The only issues before the Court of Appeals involve whether the
Petitioners' claims for unjust enrichment and for statutory damages
under the MCDCA and the MCPA are time barred, and whether a final
appealable judgment was entered in Mr. Cain's case.
A. Accrual of Claims
The Court of Appeals finds that as of the date that they made
payments on their judgments, the Petitioners had the ability to
ascertain, through due diligence and based upon matters of public
record, whether Midland was licensed at the time that it obtained
the judgments. Given that the Petitioners' claims were filed more
than three years after their respective accrual, they are barred by
the three-year statute of limitations unless: (1) an alternative
limitations period applies; (2) it was extended under a continuing
harm theory; or (3) it was tolled.
B. The Default - Three-Year Statute of Limitations
The Petitioners' claims are for unjust enrichment and money damages
for violations of the MCPA and MCDCA. The Court of Appeals has
previously held that a claim for unjust enrichment that seeks the
remedy of restitution of money is subject to the general three-year
statute of limitations. It has also held that a claim for money
damages under the MCPA is subject to the three-year statute of
limitations. Notwithstanding the Court of Appeals' application of
the three-year statute of limitations to similar claims for money
damages, the Petitioners assert that their claims fall within the
12-year statute of limitations applicable to specialties actions
because their claims constitute an "action on a judgment" under CJ
Section 5-102(a)(3). The Court of Appeals disagrees.
C. 12-Year Statute for Specialties Actions "On" a Judgment
The General Assembly has legislated several exceptions to the
three-year limitations period. One such exception is the statute of
limitations that is applicable to specialties actions, set forth in
CJ Section 5-102.
The Court of Appeals concludes that the Petitioners' interpretation
would create illogical results. In other contexts, the Court of
Appeals has rejected arguments that statutory claims for money
damages fall within other categories of the 12-year specialties
statute instead of the three-year default statute. It would be
illogical to apply a strained interpretation to the specialties
statute and hold that a 12-year limitations period applies to
claims under the MCPA for unlicensed collection activities that
result in the entry of a judgment, but only apply a three-year
limitations period to claims for similar conduct that by
happenstance, does not result in the entry of a judgment.
In summary, the Court of Appeals holds that the 12-year statute of
limitations under CJ Section 5-102(a)(3) is intended to apply to an
action to enforce a judgment. Because the Petitioners are not
seeking to enforce a judgment, but rather, are seeking money
damages resulting from Midland's efforts to collect the judgment,
the Court of Appeals holds that CJ Section 5-102(a)(3) does not
apply and such claims are subject to the default three-year statute
of limitations under CJ Section 5-101.
D. Continuing Harm Doctrine
To avoid the three-year limitations bar to their claims, the
Petitioners also contend that the continuing harm doctrine applies
to change the accrual date for their claims since they made
multiple payments to Midland over a period of time. To support
their argument, the Petitioners rely upon the Court's application
of the continuing harm doctrine in Litz v. Maryland Department of
Environment, 434 Md. 623 (2013). Midland argues that the Court
should not apply the continuing harm doctrine in these cases,
pointing out that the Court has not applied the doctrine outside of
the context of claims for nuisance and trespass where the conduct
was continuing in nature.
The Court of Appeals is not persuaded to apply the continuing harm
doctrine under the facts of this case to extend the accrual date
for the Petitioners' claims based upon payments that they made to
Midland during the period after which Midland became licensed. As
discussed, it h only applied the doctrine in limited contexts
involving ongoing wrongful conduct -- in the case of Shell Oil,
which involved an ongoing fraud arising from a false statement
erected on a billboard, and in the case of Liz, involving an
ongoing trespass and nuisance.
In the case, the wrongful conduct that forms the basis of the
Petitioners' claims is Midland's unlicensed status when it filed
the collection actions and obtained the judgments against the
Petitioners. Although Midland was unlicensed at the time that it
obtained judgments against Mr. Cain and Ms. Gambrell, Midland
subsequently entered into the settlement agreement with the
Licensing Board on Dec. 17, 2009, whereby Midland agreed to stay
all collection-related actions until it was issued a license. The
Licensing Board issued Midland a collection agency license on Jan.
15, 2010. The collection activities upon which the Petitioners seek
to extend their accrual date for limitations purposes occurred
after Midland became licensed. The Court of Appeals declines to
apply the continuing harm doctrine where the alleged continuing
harm is Midland's attempts to collect on the judgments after it
became licensed.
E. Class Action Tolling
Mr. Cain's next argument requires that the Court of Appeals decides
whether the limitations period was tolled during the pendency of
class action cases that were filed prior to the cases that are the
subject of the appeal. Mr. Cain contends that it should apply its
class action tolling rule to toll the applicable statute of
limitations on his claims filed in the instant case for a time
period equal in duration to the pendency of the federal Johnson
case (wherein he was a putative class member).
Midland asserts that the class action tolling doctrine does not
apply to toll claims filed by a former member of a putative class
action who files a successive class action, as opposed to an action
for individual claims. It also points out that the Court of Appeals
has not adopted cross-jurisdictional class action tolling -- in
other words, the tolling of individual claims that are filed in a
Maryland court by a former putative member of a class action that
was pending in federal court or another state court.
The Court of Appeals determines that the three-year statute of
limitations was tolled from the filing of the Johnson case on Sept.
10, 2009 until March 10, 2011 -- the date that the federal district
court approved the settlement of the limited class and entered an
order dismissing the claims that were not part of the settlement.
Mr. Cain's individual claims were tolled during the pendency of the
Johnson action, or for 546 days. The circuit court determined that
Mr. Cain's claim started to accrue when Midland received its first
payment on the judgment on Sept. 25, 2009.
Mr. Cain filed the present action 1,404 days later -- on July 30,
2013 -- which is beyond the three-year statute of limitations.
However, if the three-year statute is tolled during the pendency of
the Johnson action for a period of 546 days, Mr. Cain's individual
claims are not barred by the three-year limitations period (1,404
days - 546 days = 858 days). Applying cross-jurisdictional tolling
to Mr. Cain's individual claims, the Court of Appeals determines
that the claims were timely filed.
F. Given its Holding on Cross-Jurisdictional Class Action Tolling,
the Court of Appeals Do Not Determine Whether 28 U.S.C. Section
1367(d) Applies in the Context of the Dismissal of a Class Action
Certification
Finally, Mr. Cain argues that under 28 U.S.C. Section 1367(d), the
Supreme Court's decision in Artis v. District of Columbia, ___ U.S.
___, 138 S.Ct. 594 (2018) and Maryland Rule 2-101, his limitations
period was tolled during the pendency of Johnson v. Midland
Funding, LLC, D. Md. Civil. No. 09-2391 plus 30 days for his
putative class action.
Although the federal supplemental jurisdiction statute includes
"claims that involve the joinder or intervention of additional
parties," it is silent as to its application to putative class
action claims. Given its holding that Maryland recognizes
cross-jurisdictional class action tolling, the Court of Appeals
does not need to determine whether the federal supplemental
jurisdiction statute, Section 1367(d), applies to later filed
individual claims after a non-merits dismissal of class action
certification.
G. The Finality of the Circuit Court Judgment
In his last argument, Mr. Cain alleges that the Court of Special
Appeals did not have jurisdiction to review the circuit court's
decision because the September 21 opinion and order and the
associated declaratory judgment did not constitute a "final
judgment." A "judgment" is defined under Maryland Rule 1-202(o) as
an "order of court final in nature entered pursuant to these
rules." A judgment is "rendered" when a court has "clearly
indicated that the issue submitted has been adjudicated completely
and it has reached a final decision on the matter," citing Hiob v.
Progressive Am. Ins. Co., 440 Md. 466, 485 (2014) (citation and
quotation marks omitted). The circuit court in this case rendered a
final judgment on Sept. 21, 2017. The orders issued on that date
disposed of Midland's motion to dismiss and granted Mr. Cain's
motion for summary judgment -- constituting an unqualified decision
as to all claims in Mr. Cain's complaint.
As of Sept. 21, 2017, there were no issues remaining between Mr.
Cain and Midland for adjudication and Mr. Cain had no active
complaint that could be amended. The Court of Appeals concludes
that the September 21 orders were an unqualified final disposition
of all claims in the complaint and had the effect of putting Mr.
Cain -- the only named plaintiff at that time -- out of court.
The Court of Appeals similarly rejects Mr. Cain's assertion that
the September 21 orders did not constitute a final judgment because
the lawsuit was filed as a putative class action, and motions for
class certification and to compel discovery were outstanding.
Federal courts that have interpreted Federal Rule 23(c) have
similarly held that a trial court is not required to resolve a
plaintiff's class certification motion before ruling on a
dispositive challenge to the class representative's claims.
Similarly, the Court of Appeals is not aware of any authority to
support the notion that an outstanding discovery motion can prevent
a dispositive ruling from becoming a final, appealable judgment.
Conclusion
For the reasons set forth in the opinion, the Court of Appeals
holds as follows:
(A) The Petitioners' claims for unjust enrichment and
statutory claims for money damages are subject to the three-year
statute of limitations established by CJ Section 5-101.
(B) The statute of limitations governing specialties actions
"on a judgment" established under CJ Section 5-102(a)(3) applies to
actions to enforce a judgment and has no application.
(C) It declines to apply the continuing harm theory to extend
the accrual date for the Petitioners' claims.
(D) It declines to expand the American Pipe class action
tolling rule to successive class action cases.
(E) Maryland recognizes the American Pipe class action
tolling rule for absent members of putative class actions filed in
other state and federal courts. The same factors that the Court of
Appeals articulated in Christensen for intra-jurisdictional tolling
also apply to cross-jurisdictional class action tolling.
Specifically, in order for the plaintiff to claim the benefit of
class action tolling in a later-filed individual claim, the
plaintiff must show that the class action complaint: (1) notified
the defendants of not only of the substantive claims being brought
against them, but also of the number and generic identities of the
potential plaintiffs; and (2) the individual suit must concern the
same evidence, memories, and witnesses as the subject matter of the
original class suit.
(F) Cross-jurisdictional class action tolling ends when there
is a clear dismissal of a putative class action, including a
dismissal for forum non conveniens, or a denial of class action for
any reason.
(G) Applying the American Pipe class action tolling rule to
Mr. Cain's individual claims, the Court of Appeals determines that
the claims were timely filed.
(H) A final, appealable judgment was entered in Mr. Cain's
case and that the Court of Special Appeals had jurisdiction to
consider the appeal.
For the reasons set forth, the Court of Appeals agrees with the
Court of Special Appeals' conclusion that the blanket three-year
statute of limitations applies to such claims. It agrees that Ms.
Gambrell's claims are time-barred. As set forth, it recognizes
cross-jurisdictional class action tolling with respect to Mr.
Cain's individual claims. Based upon the application of class
action tolling, the Court of Appeals determines that Mr. Cain's
claims are not time-barred.
The Court of Appeals, therefore, affirms the decision of the Court
of Special Appeals in part, and reverses it in part, in the case of
Cain. It affirms the decision of the Court of Special Appeals in
the case of Gambrell in its entirety.
In Case No. 38, the judgment of the Court of Special Appeals is
affirmed in part and reversed in part. Case remanded to the Court
of Special Appeals with instructions to remand the case to the
circuit court for Baltimore City with further instructions to
dismiss the putative class action claims, and for further
proceedings on Mr. Cain's individual claims consistent with the
Opinion. Costs in the Court to be paid by the Respondent.
In Case No. 39, the judgment of the Court of Special Appeals is
affirmed. Costs in the Court to be paid by the Petitioner.
A full-text copy of the Court's Aug. 4, 2021 Opinion is available
at https://tinyurl.com/y3et3mwm from Leagle.com.
MISTRAS GROUP: $2.3 Million Settlement Reached in Price Suit
------------------------------------------------------------
Mistras Group, Inc. said in its Form 10-Q Report filed with the
Securities and Exchange Commission on August 4, 2021, for the
quarterly period ended June 30, 2021, that a settlement whereby the
Company will pay $2.3 million has been reached in Justin Price v.
Mistras Group, Inc.
Two proceedings have been filed in California Superior Court for
the County of Los Angeles regarding alleged violations of the
California Labor Code.
Both cases are captioned Justin Price v. Mistras Group, Inc., one
being a purported class action lawsuit on behalf of current and
former Mistras employees in California and the other was filed on
behalf of the State of California under the California Private
Attorney General Act on the basis of the same alleged violations.
Both cases are requesting payment of all damages, including unpaid
wages, and various fines and penalties available under California
law.
On May 4, 2021, the Company agreed to a settlement whereby the
Company will pay $2.3 million to resolve the allegations in these
proceedings and will be responsible for the employer portion of
payroll taxes on the amount of the settlement allocated to wages.
The settlement is subject to court approval and will cover claims
for the period from June 2016 through July 31, 2021.
The Company recorded expense of approximately $1.6 million during
the three months ended March 31, 2021 related to this settlement,
which is in addition to expense of $0.8 million the Company
recorded during the three months ended December 31, 2020.
Mistras Group, Inc. develops asset protection solutions. The
Company provides acoustic, ultrasonic, thermography, radiography,
and non-destructive testing platforms used to evaluate the
structural and mechanical integrity of critical energy, industrial,
and public infrastructure. Mistras Group serves customers
worldwide. The company is based in Princeton Junction, New Jersey.
MOMO INC: Court Awards Attorneys' Fees & $48K in Costs in Rupp Suit
-------------------------------------------------------------------
In the case, RICHARD RUPP and RODRIGO LEAL, individually and on
behalf of all others similarly situated, Plaintiffs v. MOMO INC.,
YAN TANG, and JONATHAN XIAOSONG ZHANG, Defendants, Case No.
1:19-cv-04433-GBD (S.D.N.Y.), Judge George B. Daniels of the U.S.
District Court for the Southern District of New York issued an
Order awarding attorneys' fees, reimbursement of expenses, and
award to the Plaintiffs.
The Court has granted final approval of the Settlement of the class
action. The Lead Counsel has petitioned the Court for an award of
attorneys' fees in compensation for services provided to the
Plaintiffs and the Settlement Class, along with reimbursement of
expenses incurred in connection with prosecuting the Action, and an
award to the Plaintiffs, to be paid out of the Settlement Fund.
Judge Daniels has reviewed the fee application and the supporting
materials filed therewith and has heard the presentation made by
Lead Counsel during the Settlement Fairness Hearing on Aug. 4,
2021, and due consideration having been had thereon.
The Judge awarded the Lead Counsel attorneys' fees totaling 33 1/3%
of the Settlement Amount plus reimbursement of out-of-pocket
litigation expenses in the amount of $48,049.04, together with
interest earned thereon at the rate earned by the Settlement Fund
until paid. He finds that the amount of fees and expenses awarded
is fair and reasonable.
Lead Plaintiff Richard Rupp is awarded $10,000, and Named Plaintiff
Rodrigo Leal is awarded $5,000, as reimbursement for their lost
time and expenses in connection with the prosecution of the
Action.
Except as otherwise provided in the Order, the attorneys' fees, the
reimbursement of expenses, and the award to the Plaintiffs will be
paid in the manner and procedure provided for in the Settlement
Stipulation.
A full-text copy of the Court's Aug. 4, 2021 Order is available at
https://tinyurl.com/3bp9wsm6 from Leagle.com.
MOMO INC: New York Court Enters Final Judgment in Rupp Class Suit
-----------------------------------------------------------------
Judge George B. Daniels of the U.S. District Court for the Southern
District of New York entered Order and Final Judgment in the case,
RICHARD RUPP and RODRIGO LEAL, individually and on behalf of all
others similarly situated, Plaintiffs v. MOMO INC., YAN TANG, and
JONATHAN XIAOSONG ZHANG, Defendants, Case No. 9-cv-04433-GBD
(S.D.N.Y.).
On the 4th day of August 2021, a hearing having been held before
the Court to determine whether the terms and conditions of the
Stipulation of Settlement dated March 23, 2021, are fair,
reasonable and adequate for the settlement of all claims asserted
by the Settlement Class against the Defendants.
For purposes of the Settlement, it is a class action on behalf of
all Persons (including, without limitation, their beneficiaries)
who purchased Momo's American Depositary Shares ("ADSs") between
April 20, 2015, and May 10, 2019, both dates inclusive.
Having considered all matters submitted to it at the hearing and
otherwise, and pursuant to Rule 23 of the Federal Rules of Civil
Procedure, Judge Daniels finds that the Settlement Stipulation and
Settlement are, in all respects, fair, reasonable, and adequate and
in the best interests of the Settlement Class and each of the
Settlement Class Members. Accordingly, the Settlement embodied in
the Settlement Stipulation is finally approved in all respects, and
will be consummated in accordance with its terms and provisions.
The Parties are directed to perform the terms of the Settlement
Stipulation.
The Action and the Amended Class Action Complaint For Violations of
the Federal Securities Laws are dismissed with prejudice. The
Parties will bear their own costs and expenses, except as and to
the extent provided in the Settlement Stipulation and in the Order
and Final Judgment.
There is no just reason for delay in the entry of the Order and
Final Judgment and immediate entry by the Clerk of the Court is
directed pursuant to Rule 54(b) of the Federal Rules of Civil
Procedure.
The finality of the Order and Final Judgment will not be affected,
in any manner, by rulings that the Court may make with respect to
the Lead Counsel's application for an award of attorneys' fees and
expenses and/or case contribution awards to the Plaintiffs.
In the event that the Settlement does not become final and
effective in accordance with the terms and conditions set forth in
the Settlement Stipulation, then the Order and Final Judgment will
be rendered null and void and be vacated. The terms and conditions
of the Settlement Stipulation will govern any termination or the
effect of any termination thereof.
A full-text copy of the Court's Aug. 4, 2021 Order & Final Judgment
is available at https://tinyurl.com/4hm66jsu from Leagle.com.
MYRIAD GENETICS: Loses Bid to Nix Securities Class Suit in Utah
----------------------------------------------------------------
Myriad Genetics, Inc. said in its Form 10-Q Report filed with the
Securities and Exchange Commission on August 4, 2021, for the
quarterly period ended June 30, 2021, that the company's motion to
dismiss the purported class action suit entitled, In re Myriad
Genetics, Inc. Securities Litigation (No. 2:19-cv-00707-DBB), has
been denied.
On September 27, 2019, a purported class action complaint was filed
in the United States District Court for the District of Utah,
against the Company, its former President and Chief Executive
Officer, Mark C. Capone, and its Interim President and Chief
Executive Officer, Executive Vice President and Chief Financial
Officer, R. Bryan Riggsbee.
On February 21, 2020, the plaintiff filed an amended class action
complaint, which added the Company's Executive Vice President of
Clinical Development, Bryan M. Dechairo, as an additional
Defendant. This action, captioned In re Myriad Genetics, Inc.
Securities Litigation (No. 2:19-cv-00707-DBB), is premised upon
allegations that the Defendants made false and misleading
statements regarding our business, operations, and acquisitions.
The lead plaintiff seeks the payment of damages allegedly sustained
by it and the purported class by reason of the allegations set
forth in the amended complaint, plus interest, and legal and other
costs and fees.
On March 16, 2021, the United States District Court for the
District of Utah denied the Company's motion to dismiss.
The Company intends to vigorously defend against this action.
Myriad said, "Due to the nature of this matter and inherent
uncertainties, it is not possible to provide an evaluation of the
likelihood of an unfavorable outcome or an estimate of the amount
or range of potential loss, if any."
Myriad Genetics, Inc., a molecular diagnostic company, focuses on
developing and marketing novel predictive medicine, personalized
medicine, and prognostic medicine tests worldwide. Myriad Genetics,
Inc. was founded in 1991 and is headquartered in Salt Lake City,
Utah.
NCAA: Faces Bryson Suit Over Football Athletes' Injuries
--------------------------------------------------------
JUSTIN BRYSON, individually and on behalf of all others similarly
situated, Plaintiff v. NATIONAL COLLEGIATE ATHLETIC ASSOCIATION,
Defendant, Case No. 1:21-cv-02185-SEB-DML (S.D. Ind., Aug. 4, 2021)
seeks to obtain redress for injuries sustained a result of the
Defendant's reckless disregard for the health and safety of
generations of University of Mary Hardin-Baylor ("UMHB")
student-athletes.
The Plaintiff alleges in the complaint that for decades, the
Defendant knew about the debilitating long-term dangers of
concussions, concussion-related injuries, and sub-concussive
injuries (referred to as "traumatic brain injuries" or "TBIs") that
resulted from playing college football, but recklessly disregarded
this information to protect the very profitable business of
"amateur" college football. While in school, UMHB football players
were under the Defendant's care. Unfortunately, the Defendant did
not care about the off-field consequences that would haunt
students, like Plaintiff Bryson, for the rest of their lives, the
Plaintiff asserts.
Despite knowing for decades of a vast body of scientific research
describing the danger of traumatic brain injuries ("TBIs") like
those the Plaintiff experienced, the Defendant allegedly failed to
implement adequate procedures to protect Plaintiff and other UMHB
football players from the long-term dangers associated with them.
They did so knowingly and for profit. As a direct result of the
Defendant's acts and omissions, the Plaintiff and countless former
UMHB football players suffered brain and other neurocognitive
injuries from playing NCAA football.
The National Collegiate Athletic Association is a nonprofit
organization that regulates student athletes from up to 1,268 North
American institutions and conferences. [BN]
The Plaintiff is represented by:
Jeff Raizner, Esq.
RAIZNER SLANIA LLP
2402 Dunlavy Street
Houston, TX 77006
Telephone: (713) 554-9099
Facsimile: (713) 554-9098
E-mail: efile@raiznerlaw.com
-and-
Jay Edelson, Esq.
Benjamin H. Richman, Esq.
EDELSON PC
350 North LaSalle Street, 14th Floor
Chicago, IL 60654
Telephone: (312) 589-6370
Facsimile: (312) 589-6378
E-mail: jedelson@edelson.com
brichman@edelson.com
-and-
Rafey S. Balabanian, Esq.
EDELSON PC
123 Townsend Street, Suite 100
San Francisco, CA 94107
Telephone: (415) 212-9300
Facsimile: (415) 373-9435
E-mail: rbalabanian@edelson.com
NETFLIX INC: Longport Joins Class Action Over Franchise Fees
------------------------------------------------------------
Jim Walsh, writing for Cherry Hill Courier-Post, reports that a
South Jersey beach town wants to play a lead role in a Netflix
courtroom drama.
But upscale Longport doesn't see itself as the setting for a film
on the streaming service.
Instead, it's one of two New Jersey towns to sue Netflix and fellow
streamer Hulu.
The proposed class action suit contends the entertainment giants
fall under the provisions of the state's Cable Television Act --
and, consequently, must pay a portion of their revenues to the
municipalities.
Longport and Irvington, Essex County, are named plaintiffs in the
suit, filed on Aug. 13 in Camden federal court. But they seek to
represent hundreds of towns across the state -- essentially,
anywhere residents are streaming Netflix and Hulu programs.
The suit contends the streaming services reached customers through
"wireline facilities" that are "located at least in part in public
rights-of-way."
And it asserts their programs "are comparable to that provided by
traditional cable companies and television-broadcast stations."
So, the streaming services should similarly pay "franchise fees
equivalent to a percentage of their gross revenue, derived in each
municipality," the lawsuit says.
Representatives of Netflix and Hulu could not be reached for
immediate comment.
Companies that fall under the Cable Television Act must pay fees to
municipalities equal to 2 to 3.5 percent of their gross revenues in
those towns, the lawsuit says.
It describes gross revenues as "recurring charges in the nature of
subscription fees."
The suit contends Netflix and Hulu are currently providing cable TV
service in New Jersey "without authorization."
It asks a judge to find the firms must abide by the Cable
Television Act -- and must pay franchise fees to the state's
municipalities.
Longport and Irvington are very different communities located about
120 miles apart opposite ends of New Jersey.
Longport, an Atlantic County beach town, has fewer than 1,000
year-residents with a median income of $116,500, according to the
U.S. Census Bureau.
It says 91 percent of the borough's residents have a broadband
Internet subscription.
Irvington, in contrast, has about 54,000 residents and a median
household income of $45,176.
About 75 percent of its residents have broadband Internet
subscriptions.
James Cecchi, a Roseland attorney who filed the suit, also was not
available for comment. [GN]
NEW JERSEY: Settlement Reached in Prison Special Education Suit
---------------------------------------------------------------
NJ Spotlight News reports that the state's oversight of special
education in New Jersey has been contentious enough over the years,
subject to lawsuits and federal orders over how best to ensure that
students with special needs are getting served in schools.
Now the system is getting new court attention in how it serves
arguably its most precarious population: school-age prison
inmates.
The state and plaintiffs in an unusual class-action lawsuit
announced a preliminary settlement that will overhaul the existing
special-education system in the state's prisons.
The case before U.S. District Court was first brought four years
ago by three inmates in the state's adult jails who said their
civil right to an education and all its accommodations for those
with disabilities were infringed upon, some maintaining they were
receiving no educational services at all.
Landmark legislation
The settlement -- which could encompass hundreds of inmates and
former inmates -- seeks to provide comparable programs inside
prison as are available in public schools, as required by the
landmark federal Individuals with Disabilities Education Act
(IDEA).
The state's departments of corrections and education would agree to
establish and enforce protocols for identifying students and their
needs, to provide the instruction, counseling and other services
required and to continue, if needed, to provide services beyond the
students' time in state custody.
"After years of negotiations, special education services will now
be meaningfully accessible to people in New Jersey prisons," said
Jeanne LoCicero, legal director of the ACLU-NJ, which represented
the plaintiffs along with disabilities rights advocates.
"The changes achieved by this settlement drastically improve
special education services for students in prison and put in place
a comprehensive plan for monitoring the provision of those services
for years to come."
The proposed settlement still needs final approval by the court.
The case relates only to inmates 21 years old or younger who are
serving time or have served time in the state's adult prisons since
2015. It does not include the state's juvenile corrections
programs.
Corrections officials agreed the settlement will help bring further
improvements and said many were underway already.
"Since the litigation was first filed, the Department has partnered
with the [state education department] to help in the identification
of eligible students through obtaining student records and adapting
community school codes and statutes for a correctional setting,"
said Liz Velez, communications director for state Department of
Corrections.
She listed other changes as well, including the hiring of a school
psychologist and other specialists to oversee the individualized
programs and to train teachers.
"The Department remains steadfast in its commitment to expand its
offerings that support holistic rehabilitation for all," Velez
said.
Solitary confinement
Needless to say, education programs inside prisons face complicated
challenges already, and special education even more so.
Nonetheless, the allegations in the initial lawsuit were
eye-opening.
The initial plaintiffs were three men in their late teens who all
suffered mostly mental-health and behavioral disorders as they grew
up, and had been identified as such in their local school settings.
But once in jail, all related support stopped, they said. They
cited especially the almost draconian conditions during periods of
solitary confinement.
"Education in administrative segregation frequently consists of
worksheets dropped off at the student's cell, with no direct
instruction at all," read the lawsuit. "For young people with
disabilities, who struggle to read and grasp new concepts, this
educational method of providing worksheets without instruction
results in frustration rather than meaningful education."
The deficiencies weren't limited to solitary confinement, either,
it said.
"Other students leave their cell to attend classes in a structure
enclosed on all sides by bars, essentially a cage," read the
complaint. "The students sit in the center of the cage, while a
teacher stands outside of the cage and monitors the students while
they complete their worksheets."
After years of negotiations, the settlement includes more than a
dozen provisions that would otherwise be standard practice outside
of prison, including certified teachers in classrooms and programs
for those with limited English skills. And it includes a specific
prohibition against the use of worksheets as the primary means of
instruction.
"We know this is a small piece of the educational picture,"
LoCicero said on Aug. 12. "But these are people, and they have
their rights. The state owes that to them." [GN]
NEWCOMB OIL: Sixth Cir. Affirms Denial of Bid to Stay Southard Suit
-------------------------------------------------------------------
In the case, MICHAEL SOUTHARD, Plaintiff-Appellee v. NEWCOMB OIL
COMPANY, LLC, Defendant-Appellant, Case No. 20-5318 (6th Cir.), the
U.S. Court of Appeals for the Sixth Circuit affirms the district
court's order denying Newcomb's stay motion and its order remanding
the remaining claims to state court.
Mr. Southard worked as a convenience store attendant for Newcomb
Oil from 2017 to 2018. In November 2018, Southard filed a putative
class action in Kentucky state court alleging violations of the
Fair Labor Standards Act, 29 U.S.C. Sections 201, et seq., in
addition to a variety of state-law claims for failure to pay
overtime, failure to provide meal and rest periods, untimely
payment and withholding of wages, failure to provide statements of
wage deductions, as well as a common-law unjust enrichment claim.
Newcomb removed the case to federal court, and six days later
Southard amended his complaint to delete the lone federal claim
under the FLSA.
Because Newcomb's employee handbook and employment application
contained various alternative dispute resolution provisions,
Newcomb moved to dismiss Southard's complaint or, in the
alternative, to stay the action pending arbitration. The district
court concluded that the parties did not form an agreement to
arbitrate under the FAA and denied Newcomb's motion to dismiss or
stay. It then remanded Southard's remaining state-law claims to
state court.
Newcomb appeals, arguing that the provisions constituted an
agreement to arbitrate under the FAA, and in the alternative that
the district court abused its discretion by declining to exercise
supplemental jurisdiction over Southard's state-law claims.
As to the first argument, the Sixth Circuit evaluates whether an
agreement qualifies as FAA arbitration based on "how closely it
resembles classic arbitration." The common features of classic
arbitration include 1) "a final, binding remedy by a third party,"
2) "an independent adjudicator," 3) "substantive standards," and 4)
"an opportunity for each side to present its case."
The Sixth Circuit opines that the agreement (if any) between
Southard and Newcomb bears none of those hallmarks. Suffice it to
say, though, that the agreement does not resemble "classic
arbitration." Not all forms of ADR involve the hallmark of
arbitration: "a final, binding remedy by a third party." Most
notably, arbitration is juxtaposed with mediation, which, while
also overseen by a neutral third party, is non-binding in nature.
If anything, given that the final page of the employee handbook
specifies mediation, it seems most likely that the parties
contemplated mediation, not arbitration.
But the Sixth Circuit need not speculate further. Newcomb did not
draft an arbitration agreement. It cannot now turn to the FAA for
its arbitration-specific remedies.
As to Newcomb's second argument, the Sixth Circuit finds that the
district court had original jurisdiction over Southard's FLSA
claim. But when the complaint was amended, and that federal claim
deleted, the state-law claims necessarily predominated over the
(now non-existent) federal claim. Once a federal court no longer
has federal claims to resolve, it "should not ordinarily reach the
plaintiff's state-law claims." Were the district court to maintain
supplemental jurisdiction in the case, it would resolve exclusively
state-law wage and hour claims, and a common-law claim. It was not
an abuse of discretion to decline to do so.
For these reasons, the Sixth Circuit affirms the district court's
order denying Newcomb's stay motion and its order remanding the
remaining claims to state court.
A full-text copy of the Court's Aug. 4, 2021 Opinion is available
at https://tinyurl.com/4dsm2uxv from Leagle.com.
ARGUED: John O. Sheller -- john.sheller@skofirm.com -- STOLL KEENON
OGDEN PLLC, in Louisville, Kentucky, for Appellant.
Ori Edelstein -- oedelstein@schneiderwallace.com -- SCHNEIDER
WALLACE COTTRELL KONECKY LLP, in Emeryville, California, for
Appellee.
ON BRIEF: John O. Sheller, Jeffrey A. Calabrese --
jeff.calabrese@skofirm.com -- Steven T. Clark --
steven.clark@skofirm.com -- STOLL KEENON OGDEN PLLC, in Louisville,
Kentucky, for Appellant.
Ori Edelstein, Carolyn H. Cottrell --
ccottrell@schneiderwallace.com -- William Hogg --
whogg@schneiderwallace.com -- SCHNEIDER WALLACE COTTRELL KONECKY
LLP, in Emeryville, California, for Appellee.
NORTHLAND INSURANCE: Court Grants in Part Bid to Stay MSPRC Suit
----------------------------------------------------------------
In the case, MSP RECOVERY CLAIMS, SERIES LLC, et al., Plaintiffs v.
NORTHLAND INSURANCE COMPANY, et al., Defendants, Case No.
20-CV-24176-WILLIAMS/MCALILEY (S.D. Fla.), Magistrate Judge Chris
McAliley of the U.S. District Court for the Southern District of
Florida granted in part the Defendants' Motion to Stay.
I. The First Amended Complaint
The action is one of many putative class action lawsuits that
Plaintiff MSP Recovery Claims Series, LLC ("MSPRC") and/or its
designated series have filed against various insurance companies,
including the Defendants, seeking reimbursement pursuant to the
Medicare Secondary Payer Act, 42 U.S.C. Section 1395y, et seq.
("MSP Act"). The Plaintiffs allege that the Defendant insurers had
primary payor obligations under the MSP Act, and the Plaintiffs'
assignors, Medicare Advantage Plans ("MA Plans"), had secondary
payor status under the Act. The Plaintiffs allege that the MA Plans
conditionally paid accident-related medical expenses for Medicare
enrollees and Defendants are obligated to reimburse those funds to
the Plaintiffs.
The Plaintiffs' First Amended Complaint ("FAC"), asserts two causes
of action: (1) a private cause of action under Section
1395y(b)(3)(A) to recover double damages for the Defendants'
alleged failure "to make appropriate and timely reimbursement of
conditional payments for Medicare Enrollees' accident-related
medical expenses" and (2) breach of contract pursuant to 42 C.F.R.
Section 411.24(e).
The Plaintiffs seek to certify two classes, one of which is a class
of "MA Plans (or their assignees) that provide benefits under
Medicare Part C in the United States and its territories, who made
payments for a Medicare Enrollee's accident-related medical
expenses within the last six years from the filing of the
Complain."
The FAC includes eight representative sample claims, which the
Plaintiffs call "exemplars." The exemplars provide details about
each of those claims, such as the identity of the injured Medicare
beneficiary, the amount of the unreimbursed conditional payment,
and the insurance company allegedly responsible for payment under
the MSP Act. The Plaintiffs' claims for relief are not limited to
the exemplars. They also attach to the FAC a spreadsheet of more
than a thousand rows, each of which allegedly represents an
unreimbursed conditional payment for which the Plaintiffs seek
reimbursement ("Claims Spreadsheet"). The Plaintiffs sue to recover
not only the unreimbursed payments identified in the eight
exemplars, but also those funds referenced in the Claims
Spreadsheet.
Recently, the Court granted the Plaintiffs limited leave to file a
Second Amended Complaint, and on this basis denied as moot the
Defendants' motion to dismiss the FAC.
II. Prior Lawsuits
The Defendants' Motion to Stay rests, in part, on two prior similar
lawsuits MSPRC filed against insurers for reimbursement under the
MSP Act: (1) MSP Recovery Claims, Series LLC v. Travelers Casualty
and Surety Company, No. 17-cv-23883-Gayles (S.D. Fla.) ("Prior
Travelers Action"), and (2) MSP Recovery Claims, Series LLC, et al.
v. The Phoenix Insurance Company, No. 5:19-cv-436 (N.D. Ohio)
("Prior Phoenix Action").
In the Prior Travelers Action, MSPRC asserted the same causes of
action that it does in the instant case, and, like the suit, MSPRC
sought to certify a No Fault Class, the only difference being the
geographic limitation (rather than the nationwide class Plaintiffs
propose in the instant, the class there was limited to benefits
paid in Florida) and the time frame (2011-2017), which overlaps the
timeframe proposed in the class. MSPRC attached a Claims
Spreadsheet to its operative pleading in the Prior Travelers
Action, which includes 537 claims that are also included in the
Claims Spreadsheet attached to the FAC in the suit. Travelers
Casualty and Surety Company filed multiple motions to dismiss, none
of which the court ruled upon because MSPRC responded by amending
its complaint. Ultimately, MSPRC voluntarily dismissed the
Travelers Action.
In the Prior Phoenix Action, MSPRC, along with one of its
designated series entities, Series 16-11-509, LLC, asserted one
cause of action against The Phoenix Insurance Company for violation
of 42 U.S.C. Section 1395y(b)(3)(A). Like the instant suit, those
plaintiffs alleged that The Phoenix Insurance Company was liable
for reimbursement of accident-related medical expenses that MA
Plans conditionally paid on behalf of Medicare beneficiaries. They
also sought to certify a class, similar to one of the proposed
classes in instant case. The Phoenix Court granted the defendant's
motion to dismiss in part and dismissed MSPRC for lack of standing.
Series 16 thereafter voluntarily dismissed that lawsuit.
As mentioned, the Defendants ask the Court to stay: (1) discovery
pending resolution of the Defendants' Motion to Dismiss or,
alternatively, limit discovery to the exemplars and class
certification, and (2) the entire case under Rule 41(d) until MSPRC
pays the attorneys' fees and costs that Travelers and Phoenix
incurred defending the Prior Actions.
III. Rule 41(d)
One of the remedies the Defendants seek is an order, under Federal
Rule of Civil Procedure 41(d), that stays the case until MSPRC pays
the attorneys' fees and costs that Travelers and Phoenix incurred
defending the Prior Actions. To prevail, the Defendants "must show:
(1) that the Plaintiff dismissed a previous action, (2) that the
Plaintiff then commenced a second action that is based upon or
includes the same claim against the same Defendants, and (3) that
the Defendant incurred costs in the prior action that will not be
useful in the newly-filed litigation."
A. The Prior Phoenix Action
The parties in the Prior Phoenix Action were (i) MSPRC, a plaintiff
in the instant case, (ii) Plaintiff Series 16 and (iii) The Phoenix
Insurance Co., one of the Defendants. Although MSPRC is a common
plaintiff in both lawsuits, that alone does not satisfy the first
element of a Rule 41(d) analysis. As a common plaintiff, MSPRC must
have dismissed the prior action, and it did not do so. It was
Series 16 that voluntarily dismissed the Prior Phoenix Action, and
it is not a party in the instant case.
The Rule is clear: it applies to "a plaintiff who previously
dismissed an action in any court." Judge McAliley must "construe
rules of procedure by determining the rule's plain meaning" and
"are not permitted to add words to the rule." MSPRC is not a
plaintiff who previously dismissed an action against Phoenix and,
therefore, Rule 41(d) is inapplicable as between them.
B. The Prior Travelers Action
The first element of Rule 41(d) is clearly satisfied: MSPRC was a
plaintiff in the Prior Travelers Action and voluntarily dismissed
that lawsuit against Travelers Casualty and Surety Company, a
defendant in the instant case.
1. Same Claim
With respect to the second element, the Court must determine
whether the action "is based on or includes the same claim" as the
Prior Travelers Action. MSPRC argues that the lawsuit is materially
different than the Prior Travelers Action because "the current
exemplar claims arise from different assignors, pursuant to
different assignment chains, and concern different accidents,
insurance policies, and failures to reimburse.
Judge McAliley agrees with the analysis set out in MSP Recovery
Claims, Series LLC v. Hartford Financial Services, No. 3:20-CV-305
(JCH) (D. Conn. March 2, 2021), and concludes that the current case
"is based upon or includes the same claim against the same
defendant" as the Prior Travelers Action. The addition of new
claims to previously filed claims does not preclude an order under
Rule 41(d). Thus the second element of Rule 41(d) is satisfied.
2. Costs
The last element of Rule 41(d) considers whether the defendant
incurred costs in the prior action that will not be useful in the
newly filed litigation. The Rule provides that the Court "may order
the plaintiff to pay all or part of the costs of the previous
action ... and may stay the proceedings until the plaintiff has
complied." The Defendants request this relief and contend that the
term "costs" in Rule 41(d) include attorneys' fees.
It is undisputed that the statute upon which the action is based,
the MSP Act, does not authorize an award of attorneys' fees, much
less define costs to include attorneys' fees. From this, Judge
McAliley concludes that Travelers Surety and Casualty Company
cannot recover any attorneys' fees incurred in the Prior Travelers
Action under Rule 41(d). As for costs other than attorneys' fees,
the Defendants have not provided the Court with information to
determine the amount of costs that Travelers Surety and Casualty
Company previously incurred that will not be useful in the
litigation. The Judge thus reserves ruling on the amount of costs
the Court will award.
IV. Stay of Discovery
The Defendants ask the Court to stay discovery until resolution of
its Motion to Dismiss or, alternatively, to limit discovery to
class certification and the exemplar claims set forth in the First
Amended Complaint. The Court recently denied the Motion to Dismiss
as moot given its decision to grant the Plaintiffs leave to file a
second amended complaint. There is thus no basis to entirely stay
discovery. As for the Defendants' request to limit the scope of
discovery to the exemplars, Judge McAliley denies this without
prejudice. The Defendants may file a renewed motion after the
Plaintiffs file their second amended complaint.
V. Conclusion
For the foregoing reasons, Judge McAliley orders that the
Defendants' Motion to Stay is granted in part. The parties will
promptly meet and confer to agree on the amount of costs that MSPRC
must pay to Travelers Surety and Casualty Company pursuant to Rule
41(d). If the parties cannot reach agreement, then the Defendants
will submit, within 30 days from the date of the Order, proof of
the costs from the Prior Travelers Action that Travelers Surety and
Casualty Company is entitled to recover under Rule 41(d), along
with a memorandum that demonstrates that such costs will not be
useful in the litigation. Since the amount of costs to be awarded
remains pending, the Judge declines to exercise discretion at this
time to stay these proceedings until MSPRC makes full payment.
However, should MSPRC fail to timely pay the costs ultimately
agreed to or awarded, the Defendants may file a renewed motion for
stay.
A full-text copy of the Court's Aug. 4, 2021 Order is available at
https://tinyurl.com/27n7tee6 from Leagle.com.
OCUGEN INC: Gross Law Firm Announces Shareholder Class Action
-------------------------------------------------------------
The securities litigation law firm of The Gross Law Firm issues the
following notice on behalf of shareholders in the following
publicly traded companies. Shareholders who purchased shares in the
following companies during the dates listed are encouraged to
contact the firm regarding possible Lead Plaintiff appointment.
Appointment as Lead Plaintiff is not required to partake in any
recovery.
Ocugen, Inc. (NASDAQ:OCGN)
Investors Affected: February 2, 2021 - June 10, 2021
A class action has commenced on behalf of certain shareholders in
Ocugen, Inc. The filed complaint alleges that defendants 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.
Shareholders may find more information at
https://securitiesclasslaw.com/securities/ocugen-inc-loss-submission-form/?id=18552&from=1
AdaptHealth Corp. f/k/a DFB Healthcare Acquisitions Corp.
(NASDAQ:AHCO)
Investors Affected: November 11, 2019 - July 16, 2021
A class action has commenced on behalf of certain shareholders in
AdaptHealth Corp f/k/a DFB Healthcare Acquisitions Corp. The filed
complaint alleges that defendants made materially false and/or
misleading statements and/or failed to disclose that: (i)
AdaptHealth had misrepresented its organic growth trajectory by
retroactively inflating past organic growth numbers without
disclosing the changes, in violation of Securities and Exchange
Commission regulations; (ii) accordingly, the Company had
materially overstated its financial prospects; and (iii) as a
result, the Company's public statements were materially false and
misleading at all relevant times.
Shareholders may find more information at
https://securitiesclasslaw.com/securities/adapthealth-corp-f-k-a-dfb-healthcare-acquisitions-corp-loss-submission-form/?id=18552&from=1
Activision Blizzard, Inc. (NASDAQ:ATVI)
Investors Affected: August 4, 2016 - July 27, 2021
A class action has commenced on behalf of certain shareholders in
Activision Blizzard, Inc. The filed complaint alleges that
defendants made materially false and/or misleading statements
and/or failed to disclose that: (1) Activision Blizzard
discriminated against women and minority employees; (2) Activision
Blizzard fostered a pervasive "frat boy" workplace culture that
continues to thrive; (3) numerous complaints about unlawful
harassment, discrimination, and retaliation were made to human
resources personnel and executives which went unaddressed; (4) the
pervasive culture of harassment, discrimination, and retaliation
would result in serious impairments to Activision Blizzard's
operations; (5) as a result of the foregoing, the Company was at
greater risk of regulatory and legal scrutiny and enforcement,
including that which would have a material adverse effect; (6)
Activision Blizzard failed to inform shareholders that the
California Department of Fair Employment and Housing had been
investigating Activision Blizzard for harassment and
discrimination; and (7) as a result, Defendants' statements about
Activision Blizzard's business, operations, and prospects, were
materially false and misleading and/or lacked a reasonable basis at
all relevant times.
Shareholders may find more information at
https://securitiesclasslaw.com/securities/activision-blizzard-inc-loss-submission-form/?id=18552&from=1
The Gross Law Firm is committed to ensuring that companies adhere
to responsible business practices and engage in good corporate
citizenship. The firm seeks recovery on behalf of investors who
incurred losses when false and/or misleading statements or the
omission of material information by a Company lead to artificial
inflation of the Company's stock. Attorney advertising. Prior
results do not guarantee similar outcomes.
CONTACT:
The Gross Law Firm
15 West 38th Street, 12th floor
New York, NY, 10018
Email: dg@securitiesclasslaw.com
Phone: (212) 537-9430
Fax: (833) 862-7770 [GN]
ODONATE THERAPEUTICS: Bid to Toss 2nd Amended Kendall Suit Denied
-----------------------------------------------------------------
In the case, KEVIN KENDALL, individually and on behalf of all
others similarly situated, Plaintiff v. ODONATE THERAPEUTICS, INC.,
KEVIN C. TANG, MICHAEL HEARNE, and JOHN G. LEMKEY, Defendants, Case
No. 3:20-cv-01828-H-LL (S.D. Cal.), Judge Marilyn L. Huff of the
U.S. District Court for the Southern District of California denies
the Defendants' motion to dismiss the Plaintiff's Second Amended
Complaint for failure to state a claim.
On April 13, 2021, Plaintiff Kendall filed his SAC alleging the
Defendants had violated federal securities laws. The case is a
securities class action against Odonate and three of its officers
under Sections 10(b) and 20(a) of the Securities Exchange Act of
1934 and Rule 10b-5 promulgated thereunder. The case is brought on
behalf all persons and entities who purchased or otherwise acquired
the stock of Odonate between Dec. 7, 2017, and March 19, 2021.
Founded in 2013, Odonate is a pharmaceutical company formerly
focused on the development of therapeutics for the treatment of
cancer. Defendant Tang is Odonate's Chairman and CEO. Defendant
Hearne has served as Odonate's CFO since November 2018. Defendant
Lemkey served as Odonate's CFO until November 2018, when he was
promoted to COO.
The Plaintiff alleges Odonate's primary focus was developing its
sole drug candidate, tesetaxel -- an orally administered
chemotherapy agent -- to treat patients with locally advanced or
metastatic breast cancer ("MBC"). Odonate previously completed
Phase 1 and Phase 2 clinical trials of tesetaxel in patients with
MBC. In December 2017, Odonate announced it was initiating
CONTESSA, a multinational, multicenter, randomized Phase 3 study of
tesetaxel in combination with capecitabine (an existing approved
cancer drug) in approximately 600 patients with locally advanced or
MBC.
On Dec. 8, 2017, Odonate filed for an Initial Public Offering
("IPO") with the Securities and Exchange Commission ("SEC") for
6.25 million shares of common stock at a price of $24 per share.
The Plaintiff alleges the aggregate gross proceeds from the IPO
were $160.6 million, and net proceeds were $147.3 million. The
Plaintiff alleges that Odonate's value proposition to investors was
that tesetaxel, in combination with capecitabine or as a
monotherapy, was efficacious, convenient, and safe relative to
existing treatment options.
Odonate's Registration Statement, filed as part of its IPO, stated:
"CONTESSA is designed to evaluate whether tesetaxel plus a reduced
dose of capecitabine results in improved progression-free survival
("PFS") with manageable toxicity and favorable quality-of-life
compared to the approved dose of capecitabine alone." The
Registration Statement explained that Odonate expected to begin
enrolling patients in CONTESSA in the fourth quarter of 2017, and
to report top-line results from the study in 2020.
The Plaintiff alleges that significant safety concerns regarding
tesetaxel arose during CONTESSA, which the Defendants were aware of
but did not disclose to investors or the public. The Plaintiff's
allegations regarding the issues that arose during CONTESSA rely on
statements from five confidential witnesses: (1) CW1, an Associate
Director, Clinical Site Relationship Management at Odonate from May
2018 to December 2018; (2) CW2, a Director of Clinical Operations
at Odonate from June 2017 to September 2019; (3) CW3, an Executive
Assistant at Odonate from September 2017 to April 2019; (4) CW4, an
Associate Director, Site Management at Odonate from December 2017
to March 2019; and (5) CW5, an Associate Director, Clinical Site
Relationship Manager (May 2018 - February 2019), Regional Medical
Liaison (March 2019 - April 2019), and Regional Director, Clinical
Operations (May 2019 - mid-March 2021).
The first doses of tesetaxel in the CONTESSA trial were allegedly
administered sometime in early 2018. By at least August 2018, and
potentially as early as May 2018, the Plaintiff alleges that
CONTESSA trial sites were reporting to Odonate that they were
experiencing a higher-than-expected rate of neutropenia (abnormally
low number of neutrophils, a type of white blood cell, in the
blood) in patients. The Plaintiff alleges trial doctors expressed
concerns to Odonate about the unexpectedly high rate of
neutropenia, and that many patients began withdrawing from the
CONTESSA trial, either voluntarily or through removal by their
doctors, due to the rates of neutropenia and other adverse events
("AEs"). CONTESSA was not a double-blind trial, meaning that
Odonate knew which patients were given which dose, and had access
to the raw trial data and information throughout the trial. The
Plaintiff alleges Odonate's company leadership, including Defendant
Tang and Defendant Lemkey, received expedited reports of patients
being hospitalized for neutropenia in the first few months of the
CONTESSA trial.
In August 2018, Odonate's Chief Medical Officer Joseph O'Connell
("CMO O'Connell") and Vice President of Site Management Jill Krause
("VP Krause") allegedly held a teleconference call with the
clinical site management team about the higher-than-expected
neutropenia rates and related patient withdrawals. During the call,
CMO O'Connell and VP Krause allegedly stated that Odonate was
initiating an urgent "all-hands-on-deck" program to lower the rate
of patient withdrawals from CONTESSA. Presentations would be given
to clinical site investigators on how to identify early signs of
neutropenia (e.g., calling patients 3-4 days after receiving a dose
to inquire about fever or other neutropenia symptoms), and how to
treat it in ways permitted by the trial. The presentation was
allegedly intended to provide doctors with knowledge and options to
prevent patients from experiencing neutropenia within the trial,
such as by lowering the tesetaxel dose for a short time or
adjusting the pacing of blood draws in order to identify and treat
patients more quickly.
Within the following two weeks, all 100-120 trial sites allegedly
received the presentation on neutropenia. Subsequently, some trial
sites implemented the new recommended protocol, but approximately
ten trial sites, or roughly 10% of the total number of sites,
allegedly dropped out of the CONTESSA trial in the first few
months. The Plaintiff alleges this represented an unusually high
dropout rate for clinical trials, and that Odonate had to find new
sites as replacements. The Plaintiff alleges that the directive to
initiate the presentation and change in protocol came from
Defendant Tang, Defendant Lemkey, and CMO O'Connell, and that
Odonate's leadership regularly received communications about the
CONTESSA trial.
On June 27, 2019, Odonate held an underwritten public offering of
4.75 million shares of common stock at a price of $26 per share;
the Plaintiff alleges the aggregate gross proceeds were $142
million and net proceeds were $135.1 million. On Oct. 21, 2019,
Odonate announced completion of enrollment in the CONTESSA trial.
On Aug. 24, 2020, Odonate issued a press release announcing
top-line results from the CONTESSA trial. At this news, Odonate's
stock price fell $15.21 per share, or 45.35%, to close at $18.33
per share on Aug. 24, 2020.
On Sept. 1, 2020, Odonate held a public offering of 6,456,000
shares at $14.25 per share; the Plaintiff alleges the aggregate
gross proceeds were $92 million and net proceeds were $87.4
million. On March 22, 2021, Odonate issued a press release
announcing it was discontinuing tesetaxel's development following
feedback from the U.S. Food and Drug Administration ("FDA") that
the clinical data package for tesetaxel was unlikely to support FDA
approval. At this news, Odonate's stock price fell $15.07 per
share, or 79%, to close at $3.96 per share on March 22, 2021. On
March 25, 2021, Odonate filed a Form 8-K with the SEC providing
more details about Odonate's discontinuation of tesetaxel's
development, and the wind-down of Odonate's operations. At this
news, Odonate's stock price fell $0.52, or 14.4%, to close at $3.09
per share on March 26, 2021.
On Sept. 16, 2020, the Plaintiff filed a class action complaint
against the Defendants. On May 13, 2021, the Plaintiff filed the
operative SAC against the Defendants. The Plaintiff alleges that
during the Class Period, the Defendants concealed material, adverse
facts from investors regarding the negative results and necessary
changes to protocol in the CONTESSA trial. The Plaintiff alleges
that throughout the Class Period, the Defendants made misleading
statements containing misrepresentations and omissions regarding
the CONTESSA trial, patient outcomes and experiences while using
tesetaxel, and the likelihood of tesetaxel's approval by the FDA.
The SAC alleges that Defendants violated Sections 10(b) and 20(a)
of the Exchange Act, 15 U.S.C. Sections 78j(b) and 78t(a), and Rule
10b-5 promulgated thereunder, 17 C.F.R. Section 240.10b-5. By the
present motion, the Defendants move to dismiss the Plaintiff's SAC
for failure to state a claim upon which relief can be granted.
Analysis
To plead a claim under Section 10(b) and Rule 10b-5, a plaintiff
must allege (1) a material misrepresentation or omission; (2)
scienter; (3) a connection between the misrepresentation or
omission and the purchase or sale of a security; (4) reliance; (5)
economic loss; and (6) loss causation. The Defendants contend that
the Plaintiff has failed to allege the first two elements with
sufficient particularity to satisfy the PSLRA's pleading
standards.
A. Whether the SAC Sufficiently Pleads Falsity
Falsity is any "untrue statement of a material fact." It also
occurs when a defendant "omitted to state a material fact necessary
in order to make the statements made, in light of the circumstances
in which they were made, not misleading." To plead falsity under
the PSLRA, a complaint must "specify each statement alleged to have
been misleading, the reason or reasons why the statement is
misleading and, if an allegation regarding the statement or
omission is made on information and belief state with particularity
all facts on which that belief is formed." A complaint must allege
both that the statement or omission is misleading and that it is
material.
The Plaintiff alleges the failure to disclose that elevated rates
of neutropenia in CONTESSA led to unexpectedly high rates of
patient withdrawal from the trial, resulting in an emergency change
to the trial protocol and presentations to all CONTESSA trial
sites, was a material omission rendering many of Defendants'
statements during the Class Period false and misleading. The
Plaintiff contends that Defendants never disclosed the August 2018
emergency program to prevent patients from experiencing neutropenia
and to reduce the rate of patient discontinuation.
Judge Huff finds that the SAC's allegations are sufficient to state
a claim under Section 10(b) and Rule 10b-5. The Plaintiff has
identified several allegedly material misstatements and omissions
and alleged the reasons why a reasonable investor would consider
these statements and omissions to be misleading with particularity.
She concludes that the Plaintiff has sufficiently pled that the
Defendants made public statements and omissions during the Class
Period that reasonable jurors could find to be material and
misleading. Given the fact-intensive nature of these inquiries, she
says, the Defendants' arguments regarding the falsity of the
alleged statements are better suited to a motion for summary
judgment or opposition to class certification when the record is
more fully developed.
B. Whether the SAC Sufficiently Pleads Scienter
To adequately plead scienter under the PSLRA, the complaint must
"state with particularity facts giving rise to a strong inference
that the defendant acted with the required state of mind." To
allege the requisite scienter, a complaint must "allege that the
defendants made false or misleading statements either intentionally
or with deliberate recklessness."
The Defendants contend that the Court should disregard the
Plaintiff's allegations relying on the statements of five
confidential witnesses. Judge Huff concludes that the allegations
regarding the five confidential witnesses are sufficient to satisfy
the PSLRA pleading requirements and will credit them in its
analysis of the Defendants' scienter.
The Plaintiff alleges that the Defendants knew that their public
misrepresentations and omissions would mislead investors, and/or
were deliberately reckless as to the danger of misleading
investors. The Defendants allegedly were informed of the elevated
rates of neutropenia and patient withdrawals as early as May 2018,
and as late as August 2018. The Plaintiff alleges Defendants held
an urgent teleconference in August 2018 regarding the AEs in the
CONTESSA trial, and initiated an emergency program to decrease the
number of patient discontinuations due to neutropenia.
These allegations are sufficient to plead a strong inference that
the Defendants made materially misleading statements intentionally
or with deliberate recklessness, Judge Huff holds. She says, it is
plausible that the omitted information presented a danger of
misleading buyers or sellers that was either known to the
Defendants or was so obvious that they must have been aware of it.
The Plaintiff has adequately pled "a narrative of fraud -- facts
which, if true, substantiate an explanation at least as plausible
as a nonfraudulent alternative."
In sum, after considering all of these allegations, the Judge
concludes that the Plaintiff has met his burden in creating a
"cogent inference" that Defendants acted at least deliberately
recklessly. Accordingly, she denies the Defendants' motion to
dismiss the Plaintiff's Section 10(b) claim.
C. Whether the SAC Satisfies Federal Pleading Requirements
Finally, the Defendants contend that the Plaintiff's SAC fails to
meet federal pleading standards.
Judge Huff disagrees. She finds that the Defendants' arguments are
better suited to a motion for summary judgment or opposition to
class certification when the record is more fully developed.
Conclusion
For the reasons she stated, Judge Huff denies the Defendants'
motion to dismiss the Plaintiff's SAC in its entirety. The
Defendants must file an answer to the SAC within 30 days of the
date of the Order.
A full-text copy of the Court's Aug. 4, 2021 Order is available at
https://tinyurl.com/2jadnscr from Leagle.com.
ONFIDO INC: Can't Arbitrate OfferUp App BIPA Violation Claim
------------------------------------------------------------
Claims Journal reports that a London-based technology vendor that
supplied face-recognition software to the OfferUp app cannot force
a plaintiff to arbitrate his claim that the technology violated
Illinois' biometric privacy law, a federal appellate court ruled.
A panel of the 7th Circuit Court of Appeals decided on Aug. 11 that
Onfido Inc. could not piggyback onto a provision in OfferUp's terms
of service agreement that requires customers to resolve any
disputes against the company through binding arbitration. The three
circuit judges said in the ruling that Onfido was not named in the
terms of service and offered no evidence that it relied on
OfferUp's customer agreement when it conducted business.
"A nonsignatory to a contract typically has no right to invoke an
arbitration provision contained in that contract," the opinion
says.
Chicago-area resident Fredy Sosa filed the class action complaint
against Onfido in Cook County court, but it was removed to the U.S.
District Court of Illinois. He alleges that the tech vendor
violated the Illinois Biometric Information Privacy Act, which
prohibits businesses from storing biometric data, such as
fingerprints or the shape of a person's face, without the
customer's written permission.
Onfido's complaint says he was prompted to upload a photograph of
himself and his driver's license when he created an account on
OfferUp, an app that is used to buy and sell merchandise. He says
the company did not inform him that his photo would be transmitted
to a "Known Faces" database maintained by Onfido, where it would be
compared to hundreds of thousands of other faces. He is seeking to
be the lead plaintiff in a class-action lawsuit that would seek
redress for all OfferUp customers whose rights were similarly
violated.
The lawsuit says the Illinois biometric privacy law also
establishes standards for companies that store biometric
information. One of those standards is a requirement that the
company disclose how long it will store the data, in addition to
how it will be used.
Although the Illinois biometric privacy law was passed in 2008, the
number of lawsuits filed for alleged violations exploded after the
Illinois Supreme Court ruled in 2019 that the mere fact that there
was a violation of the law gives a plaintiff standing to file a
lawsuit, according to a blog post by Mark Olthoff, a shareholder
with the Polsinelli law firm in Kansas City, Missouri.
A 2020 Illinois appellate court decision dragged insurers into the
fracas. The court ruled that an insurer was required to defend a
policyholder from a biometric privacy lawsuit under the general
liability provision in the policy, Olthoff said.
The Claims Journal reported in May the Illinois Supreme Court ruled
that West Bend Mutual Insurance Co. was required to cover an award
of damages for privacy violations by an insured tanning salon.
Sosa's lawsuit against Onfido is still in preliminary stages. No
insurer is mentioned in the pleadings so far, but the appellate
court ruling will move the case toward trial.
Onfido appealed after U.S. District Judge Marvin E. Aspen on Jan. 5
denied the company's motion to compel arbitration of Sosa's claim.
The company argued that the terms of service agreement approved by
Sosa protected third-party service providers. Also, the company
said it was protected because it was acting as an agent for
OfferUp.
Aspen disagreed, saying that the arbitration provision mentioned
OfferUp, but didn't anything about other providers.
"We agree with the district court in all respects," the 7th Circuit
opinion says.
Attorneys for the parties did not respond to requests for comment.
[GN]
OWLET BABY: District of Utah Dismisses Ruiz Suit With Prejudice
---------------------------------------------------------------
In the case, AMANDA RUIZ and MARISELA ARREOLA, Plaintiffs v. OWLET
BABY CARE, INC., Defendant, Case No. 2:19-cv-00252 (D. Utah), Judge
Howard C. Neilson, Jr., of the U.S. District Court for the District
of Utah denied the Plaintiffs' motion for leave to file a proposed
amended complaint.
Plaintiffs Amanda Ruiz and Marisela Arreola filed the proposed
class action against the Defendant on April 12, 2019. The Court
dismissed the Plaintiffs' claims with permission to seek leave to
amend on June 1, 2020. The Plaintiffs sought leave to file an
amended complaint on July 1, 2020.
The Court's June 1, 2020, memorandum decision and order details the
Plaintiffs' allegations. In their proposed amended complaint, the
Plaintiffs seek to make minor changes to these allegations.
First, the Plaintiffs seek to omit their earlier allegations that
Smart Socks cause burns to babies' feet. Second, they seek to edit
one Smart Sock review by omitting the reviewer's statement that
"pulse oximeters in the hospital also have false alarms all the
time, not sure why I thought this would be any different." Third,
the Plaintiffs seek to edit their allegations regarding the
frequency of Smart Sock false alarms to make them more consistent,
removing words like "occasional" and "sometimes" and adding phrases
such as "frequent and regular."
Fourth, the Plaintiffs seek to allege that "Owlet convinced
consumers of the Smart Sock's accuracy and reliability by pointing
to a single clinical study performed on 11 adults, 2 years after
the release of the Smart Sock, to establish its accuracy." The
Plaintiffs seek to allege that this study has been "called into
question in the August 2018 edition of the Journal of the American
Medical Association." The Plaintiffs also seek to allege that
Owlet's response to this article cited to the first study, and to a
"second study that has not yet been released by Owlet but
purportedly tested the Smart Sock alongside an FDA-cleared infant
pulse oximeter (incorrectly referred to as FDA-approved by Owlet).
Both sensors were apparently placed on 14 infants under non-motion
conditions for up to 20 minutes."
Fifth, the Plaintiffs seek to allege that the Journal of the
American Medical Association article questioning Smart Sock's
reliability was "not publicly available" and that "Owlet made
absolutely no disclosures regarding these findings and actively
concealed the inaccuracies in the product."
Sixth, the Plaintiffs seek to add allegations comparing how Owlet's
pulse oximeters are used with how other medical and non-medical
pulse oximeters are used. They seek to allege that "generally,
pulse oximeters are intended for non-invasive measurement of the
arterial blood oxygen saturation and pulse rate and have been
regularly used in hospitals and similar medical settings since the
early 1990s," but that "unlike the Owlet Smart Sock, FDA-cleared
pulse oximeters for infant use are not used on babies' feet, the
sensors are hard-wired to the monitor, and, for healthy babies, are
intended for use only to 'spot check' vital signs rather than for
consistent monitoring over long periods of time." They also seek to
allege that non-medical pulse oximeters intended for consumer use
are not cleared by the FDA "for curing, treating, or preventing any
disease or condition" but that the Smart Sock differs from other
non-FDA approved "consumer products such as the Apple Watch and
FitBit" because those products are "intended for wellness and
exercise purposes, and most importantly, not intended for use on
infants or to provide alerts for vital sign activity."
Seventh, the Plaintiffs seek to allege that despite these
differences, "Owlet deliberately and misleadingly aligns itself
with both medical grade devices and consumer wellness products,
seemingly whenever it was convenient for sales." They thus seek to
allege that "Owlet released a 3-page 'Accuracy Report for the Owlet
Smart Sock 2.0'" in October 2019 "that claims the Smart Sock
'passes stringent requirements applicable to medical devices.'" The
Plaintiffs also seek to allege that although "Owlet has stated that
it is working on becoming a registered medical device and that it's
applying for FDA clearance," the Smart Sock has not yet received
FDA clearance. And the Plaintiffs seek to allege that Owlet has
"not had to supply the types of clinical data that most pulse
oximeters must go through in order to be marketed to consumers"
Finally, Plaintiffs seek to allege that Owlet's representations led
"consumers to reasonably expect the Owlet Smart Sock to be at least
as accurate as hospital grade pulse oximeters" and that Owlet took
advantage of "consumer expectations by their use of hospital grade
and similar terminology in their advertisements."
Discussion
The proposed amended complaint asserts claims for violations of
three California statutes: The Consumers Legal Remedies Act, the
Song-Beverly Consumer Warranty Act, and the Unfair Competition Law.
It also asserts a claim for violation of the federal Magnuson-Moss
Act and a claim for unjust enrichment.
A. California's Consumers Legal Remedies Act Claim
The Plaintiffs seek to amend their claim that the Defendant
violated California's Consumers Legal Remedies Act. In dismissing
the claim as alleged in the Plaintiffs' first complaint, the Court
concluded that the Plaintiffs failed "plausibly to allege material
omissions" because they failed "to allege what the Defendant should
have disclosed, what a reasonable consumer would have expected from
a pulse oximeter, and whether there was a difference between the
two."
Judge Neilson holds that the proposed amended complaint does allege
that "according to Owlet, the alarm thresholds on the Smart Sock
are fixed at relatively conservative values in order to reduce
false alarms and thus, reasonable consumers actually expect there
to be less false alarms than pulse oximeters used in hospitals."
But the proposed amended complaint still does not allege any facts
regarding what a reasonable consumer expects from other pulse
oximeters, whether FDA-approved medical devices used in hospitals,
or "consumer products incorporating pulse oximeter technology (i.e.
Apple Watch, FitBit)."
Apart from these concrete allegations, the Plaintiffs quote
selections from a number of online consumer reviews. But even
though these reviews appear to be carefully edited and
cherrypicked, they are far from consistent with each other, Judge
Neilson determines. Nor are they clear. Indeed, many of the reviews
do not distinguish among false alerts ("red" alarms), alerts
resulting from the inability to get a good reading of the baby's
vital signs because of movement or improper placement ("yellow"
alerts), and internet connection issues ("blue" alerts). Nor do
most of the reviews indicate whether the reviewers believe they are
getting more false negatives or false positives than they would
expect from medical pulse oximeters. In short, the reviews do not
support a reasonable inference regarding what the Smart Sock's rate
of false positives and negatives even is, let alone whether that
rate differs from what a reasonable consumer would expect.
For all of these reasons, Judge Neilson denies the Plaintiffs'
motion for leave to amend this claim.
B. Song-Beverly Consumer Warranty Act Claim
The Plaintiffs also seek to amend their claim that the Defendants
violated the Song-Beverly Consumer Warranty Act, which requires
that "consumer goods that are sold in retail in" California "be
accompanied by the manufacturer's and the retail seller's implied
warranty that the goods are merchantable." The Court held in its
first opinion that the "Plaintiffs failed plausibly to allege that
the Smart Sock is unfit for the ordinary purpose for which it is
used" because they "offered no comparison of the accuracy and
reliability of the Smart Sock with that of other pulse oximetry
technology."
Once again, Judge Neilson finds that the proposed amended complaint
does nothing to add factual allegations that support a reasonable
inference that the "false alarms or inaccurate readings are
indicative of a design defect" as opposed to "reflecting nothing
more than the inherent limitations of pulse oximetry technology."
It thus fails to state a claim. For where a complaint pleads facts
that are merely consistent with a defendant's liability, it stops
short of the line between possibility and plausibility of
entitlement to relief."
Judge Neilson thus denies the Plaintiffs leave to amend this claim.
And because the "disposition of the state law warranty claims
determines the disposition of the Magnuson-Moss Act claims." The
Judge also denies the Plaintiffs leave to amend their claim under
the Magnuson-Moss Warranty Act.
C. California's Unfair Competition Law
The Plaintiffs next seek to amend their claim that Defendant
violated California's Unfair Competition Law, which "provides a
cause of action for business practices that are (1) unlawful, (2)
unfair, or (3) fraudulent."
Judge Neilson concludes that the proposed allegations amount to
little more than "conclusory statements" and "naked assertions
devoid of further factual enhancement" and thus do not suffice to
state a claim. Because the proposed amended complaint fails to
state a claim under any of the Unfair Competition Law's prongs, the
Judge denies the Plaintiffs leave to amend their claim that the
Defendant violated this statute.
D. Unjust Enrichment
The Plaintiffs final claim is for unjust enrichment for the
"Defendant's failure to disclose known design flaws."
The Court has already concluded that the proposed amended complaint
fails to allege sufficient factual content to support a reasonable
inference that the false alarms and inaccurate readings experienced
by the Plaintiffs were the result of design flaws as opposed to the
inherent limitations of pulse oximeter technology. Judge Neilson
accordingly denies the Plaintiffs leave to amend this claim.
Conclusion
For the foregoing reasons, Judge Neilson denied the Plaintiffs'
motion for leave to file the proposed amended complaint. In a
docket text order following its first decision, the Court stated
that "if leave to amend all claims is denied" because "the proposed
amendments fail to cure the deficiencies the court has identified,
the action will be dismissed with prejudice." The Plaintiffs'
action is accordingly dismissed with prejudice.
A full-text copy of the Court's Aug. 3, 2021 Memorandum Decision &
Order is available at https://tinyurl.com/3cm5exe6 from
Leagle.com.
PBF HOLDING: Goldstein Class Action Still Ongoing
-------------------------------------------------
PBF Holding Company LLC said in its Form 10-Q Report filed with the
Securities and Exchange Commission on August 4, 2021, for the
quarterly period ended June 30, 2021, that the company continues to
defend itself from a class action lawsuit entitled, Arnold
Goldstein, et al. v. Exxon Mobil Corporation, et al.
On February 17, 2017, in Arnold Goldstein, et al. v. Exxon Mobil
Corporation, et al., the company and PBF LLC, and the company's
subsidiaries, PBF Western Region LLC and Torrance Refining and the
manager of the company's Torrance refinery along with ExxonMobil
were named as defendants in a class action and representative
action complaint filed on behalf of Arnold Goldstein, John Covas,
Gisela Janette La Bella and others similarly situated.
The complaint was filed in the Superior Court of the State of
California, County of Los Angeles and alleges negligence, strict
liability, ultra-hazardous activity, a continuing private nuisance,
a permanent private nuisance, a continuing public nuisance, a
permanent public nuisance and trespass resulting from the February
18, 2015 electrostatic precipitator ("ESP") explosion at the
Torrance refinery which was then owned and operated by ExxonMobil.
The operation of the Torrance refinery by the PBF entities
subsequent to our acquisition in July 2016 is also referenced in
the complaint. To the extent that plaintiffs' claims relate to the
ESP explosion, ExxonMobil retained responsibility for any
liabilities that would arise from the lawsuit pursuant to the
agreement relating to the acquisition of the Torrance refinery.
On July 2, 2018, the court granted leave to plaintiffs' to file a
Second Amended Complaint alleging groundwater contamination. With
the filing of the Second Amended Complaint, plaintiffs' added an
additional plaintiff, Hany Youssef. On March 18, 2019, the class
certification hearing was held and the court took the matter under
submission.
On April 1, 2019, the court issued an order denying class
certification. On April 15, 2019, plaintiffs filed a Petition for
Permission to Appeal the Order Denying Motion for Class
Certification. On May 3, 2019, plaintiffs filed a Motion with the
Central District Court for Leave to File a Renewed Motion for Class
Certification. On May 22, 2019, the judge granted plaintiffs'
motion.
The company filed its opposition to the motion on July 29, 2019.
The plaintiffs' motion was heard on September 23, 2019. On October
15, 2019, the judge granted certification to two limited classes of
property owners with Youssef as the sole class representative and
named plaintiff, rejecting two other proposed subclasses based on
negligence and on strict liability for ultrahazardous activities.
The certified subclasses relate to trespass claims for ground
contamination and nuisance for air emissions.
On February 5, 2021, the company's motion for Limited Extension of
Discovery Cut-Off and a Motion by plaintiffs for Leave to File
Third Amended Complaint were heard by the court. On February 9,
2021, the court issued an order taking both motions under
submission pending additional discovery and briefing related to
plaintiff Youssef and whether a new class representative should be
substituted.
The court has also ordered that the rebuttal expert disclosure
deadline, the expert discovery cut-off, the motion hearing cut-off,
and all other case deadlines be stayed pending the court's decision
as to whether the case can proceed with a new class representative
and whether defendants will be permitted to conduct additional soil
vapor sampling in the ground subclass area.
On March 6, 2021, plaintiff Youssef's second deposition was taken.
On March 22, 2021, based on plaintiff Youssef's deposition, the
company filed its brief requesting the court dismiss plaintiff
Youssef's claims for nuisance and trespass and deny plaintiffs'
motion for leave to file a third amended complaint to substitute a
new named plaintiff or class representative. On April 5, 2021,
plaintiffs filed a brief regarding their motion.
On May 5, 2021, the Court granted plaintiffs leave to amend their
complaint for the third time to substitute Navarro for Youssef. On
May 12, 2021, plaintiffs filed their Third Amended Complaint
("TAC") that contained significant changes and new claims,
including individual claims, that were not included in the motion
for leave to amend plaintiffs presented to the Court.
On June 9, 2021, the company filed a Motion to Dismiss/Strike the
TAC. On June 23, 2021, plaintiffs filed their opposition to our
Motion to Dismiss/Strike, to which we filed our reply on July 2,
2021. A hearing on the Motion to Dismiss/Strike the TAC was held on
August 2, 2021 and the court ordered that the TAC be struck and
that the parties meet and confer with respect to the complaint
within the next three weeks.
The current discovery cut-off related to Navarro is August 20, 2021
and the company had served interrogatories and requests for
documents on plaintiffs. There is currently no trial date.
PBF Holding said, "We presently believe the outcome will not have a
material impact on our financial position, results of operations,
or cash flows."
PBF Holding Company LLC is one of the largest independent petroleum
refiners and suppliers of unbranded transportation fuels, heating
oil, petrochemical feedstocks, lubricants and other petroleum
products in the United States. The company sells its products
throughout the Northeast, Midwest, Gulf Coast and West Coast of the
United States, as well as in other regions of the United States and
Canada, and is able to ship products to other international
destinations. The company is based in Parsippany, New Jersey.
RE/MAX HOLDINGS: Faces Sunderland Putative Class Suit in Canada
---------------------------------------------------------------
RE/MAX Holdings, Inc. said in its Form 10-Q Report filed with the
Securities and Exchange Commission on August 4, 2021, for the
quarterly period ended June 30, 2021, that RE/MAX Ontario-Atlantic
Canada Inc. is facing a putative class action suit in Canada
initiated by Mark Sunderland.
On April 9, 2021, a putative class action claim was filed in the
Federal Court of Canada against the Toronto Regional Real Estate
Board ("TRREB"), The Canadian Real Estate Association ("CREA"),
RE/MAX Ontario-Atlantic Canada Inc. ("RE/MAX OA"), which was
acquired by the Company in July 2021, Century 21 Canada Limited
Partnership, Brookfield Asset Management Inc., Royal Lepage Real
Estate Services Ltd., Homelife Realty Services Inc., Right At Home
Realty Inc., Forest Hill Real Estate Inc., Harvey Kalles Real
Estate Ltd., Sotheby's International Realty Canada, Chestnut Park
Real Estate Limited, Sutton Group Realty Services Ltd. and IPRO
Realty Ltd. by the putative representative plaintiff, Mark
Sunderland.
The Plaintiff alleges that the Defendants and their co-conspirators
conspired, agreed or arranged with each other to fix, maintain,
increase, control, raise, or stabilize the rate of real estate
buyers' brokerages' and salespersons' commissions in respect of the
purchase and sale of properties listed on TRREB's multiple listing
service system (the "Toronto MLS"); that the Defendants and their
co-conspirators acted in furtherance of their conspiracy, agreement
or arrangement to fix, maintain, increase, control, raise, or
stabilize the rate of real estate buyers' brokerages' and
salespersons' commissions in respect of the purchase and sale of
properties listed on the Toronto MLS; and violation of Part VI of
the Competition Act, R.S.C. 1985, c. C-34 ("Competition Act").
Among other requested relief, Plaintiff seeks damages against the
defendants and injunctive relief.
RE/MAX OA denies the allegations in the claim and intends to
vigorously defend the action.
RE/MAX Holdings, Inc. is one of the world's leading franchisors in
the real estate industry, franchising real estate brokerages
globally under the RE/MAX(R) brand, and mortgage brokerages within
the U.S. under the Motto Mortgage(R) brand. RE/MAX is a global
franchisor of real estate brokerage services with more than 125,000
agents operating in over 110 countries and territories. The company
is based in Denver, Colorado.
REALOGY GROUP: Discovery in Sitzer Putative Class Suit Ongoing
--------------------------------------------------------------
Realogy Group LLC said in its Form 10-Q Report filed with the
Securities and Exchange Commission on August 4, 2021, for the
quarterly period ended June 30, 2021, that discovery is ongoing in
the putative class action suit entitled, Sitzer and Winger v. The
National Association of Realtors (NAR), Realogy Holdings Corp.,
Homeservices of America, Inc., RE/MAX Holdings, Inc., and Keller
Williams Realty, Inc.
This is a putative class action complaint filed on April 29, 2019
and amended on June 21, 2019 against NAR, the Company, Homeservices
of America, Inc., RE/MAX Holdings, Inc., and Keller Williams
Realty, Inc.
The complaint contains substantially similar allegations, and seeks
the same relief under the Sherman Act, as the Moehrl litigation.
The Sitzer litigation is limited both in allegations and relief
sought to the State of Missouri and includes an additional cause of
action for alleged violation of the Missouri Merchandising
Practices Act or MMPA.
On August 22, 2019, the Court denied defendants' motions to
transfer the Sitzer matter to the U.S. District Court for the
Northern District of Illinois and on October 16, 2019, denied the
motions to dismiss this litigation filed respectively by NAR and
the Company (together with the other named brokerage/franchisor
defendants). In September 2019, the DOJ filed a statement of
interest and appearances for this matter for the same purpose
stated in the Moehrl matter.
In July 2020, the DOJ requested the Company provide it with all
materials produced for Sitzer, with such request related to and
preceding the subsequent civil lawsuit filed and related settlement
agreement between the DOJ and NAR in November 2020.
In July 2021, the DOJ filed a notice of withdrawal of consent to
its November 2020 proposed settlement with NAR and submitted an
additional request to the Company for any supplemental materials
produced in Sitzer.
Plaintiffs filed their motion for class certification on May 24,
2021 and on June 30, 2021, filed a second amended complaint
limiting the class definition to home sellers who used a listing
broker affiliated with one of the defendants, among other things.
Discovery between the plaintiffs and defendants is ongoing.
Realogy Group LLC provides residential real estate services in the
United States and internationally. The company's Real Estate
Franchise Services segment franchises residential real estate
brokerages through its portfolio of brands, including Century 21,
Coldwell Banker, Coldwell Banker Commercial, ERA, Sotheby's
International Realty, and Better Homes and Gardens Real Estate. The
company was formerly known as Realogy Corporation. The company was
incorporated in 2006 and is headquartered in Madison, New Jersey.
Realogy Group LLC is a subsidiary of Realogy Intermediate Holdings
LLC.
RNC INDUSTRIES: Hernandez Seeks Carpenters' Unpaid Overtime Wages
-----------------------------------------------------------------
The case, ALEX HERNANDEZ, individually and on behalf of all others
similarly situated, Plaintiff v. RNC INDUSTRIES LLC. and ROBERT
DUGAN and RICHARD TONYES as individuals, Defendants, Case No.
1:21-cv-04518 (E.D.N.Y., August 11, 2021) arises from the
Defendants' alleged violations of the Fair Labor Standards Act and
the New York Labor Law.
The Plaintiff was employed by the Defendants as a carpenter from in
or around March 2018 until in or around September 2020.
The Plaintiff brings this complaint as a class and collective
action complaint to recover compensatory and liquidated damages
against the Defendants as a result of their failure to compensate
him and other similarly situated carpenters for the overtime hours
they have performed during their employment with the Defendants.
Moreover, the Defendants willfully failed to keep accurate payroll
records and to post notices of the minimum wage and overtime wage
requirements in a conspicuous place at the location of their
employment as required by both the FLSA and NYLL, the Plaintiff
contends.
RNC Industries LLC provides integrated concrete construction
services in New York City and the surrounding areas. Robert Dugan
and Richard Tonyes own and operate the Corporate Defendant. [BN]
The Plaintiff is represented by:
Roman Avshalumov, Esq.
HELEN F. DALTON & ASSOCIATES, P.C.
80-02 Kew Gardens Road, Suite 601
Kew Gardens, NY 11415
Tel: (718) 263-9591
SAGINAW COUNTY, MI: Emergency Bid to Lift Stay in Fox Suit Denied
-----------------------------------------------------------------
In the case, THOMAS A. FOX, on behalf of himself and all others
similarly situated, Plaintiff v. COUNTY OF SAGINAW, by its BOARD OF
COMMISSIONERS, et al., Defendants, Case No. 1:19-cv-11887 (E.D.
Mich.), Judge Thomas L. Ludington of the U.S. District Court for
the Eastern District of Michigan, Northern Division, denied the
Plaintiff's Emergency Motions to Lift the Stay, to Enter a Show
Cause Order, and for Expedited Consideration.
On June 25, 2019, Plaintiff Fox filed a complaint on behalf of
himself and all others similarly situated against numerous Michigan
counties and county treasurers, alleging that Saginaw County, its
treasurer, and various other Michigan counties and county officials
had unlawfully retained the surplus proceeds of tax foreclosure
sales. He claims that the Defendants have seized and disposed of
property and retained the surplus equity pursuant to Michigan's
General Property Tax Act ("GPTA"), Mich. Comp. Laws Section 211.1,
et seq. Before recent amendments, the GPTA allowed the statutorily
defined "foreclosing governmental unit" to retain the surplus
proceeds of a tax foreclosure sale without any procedure for
compensating the owner.
The Plaintiff's original complaint alleged several counts,
including taking without just compensation in violation of the
Fifth and Fourteenth Amendments (Counts I, II), inverse
condemnation under Michigan law (Count III), violation of Article
X, Section 2 of the Michigan Constitution (Count IV), and excessive
fine in violation of the Eighth Amendment (Count V).
On Sept. 4, 2019, the Plaintiff filed an amended complaint naming
additional counties and treasurers as Defendants and adding three
counts: Procedural due process (Count VI), substantive due process
(Count VII), and unjust enrichment (Count VIII). After the Amended
Complaint, the roster of Defendants includes Counties Alcona,
Alpena, Arenac, Bay, Clare, Crawford, Genesee, Gladwin, Gratiot,
Huron, Isabella, Jackson, Lapeer, Lenawee, Macomb, Midland,
Montmorency, Ogemaw, Oscoda, Otsego, Presque Isle, Roscommon,
Saginaw, Sanilac, St. Clair, Tuscola, and Washtenaw, and county
treasurers Cheryl Franks, Kimberly Ludlow, Dennis Stawowy, Richard
F. Brzezinski, Jenny Beemer-Fritzinger, Kate M. Wagner, Joseph V.
Wakeley, Deborah Cherry, Christy Van Tiem, Michelle Thomas, Debra
McCollum, Steven W. Pickens, Karen Coffman, Dana M. Miller, Marilyn
J. Woods, Lawrence Rocca, Cathy Lunsford, Jean M. Klein, Dwight
McIntyre, William Kendall, Diann Axford, Bridget Lalonde, Rebecca
Ragan, Timothy M. Novak, Trudy Nicol, Kelly Roberts-Burnett,
Patricia Donovan-Gray, Catherine McClary, and Shawn S. Walraven.
On Jan. 10, 2020, the case was stayed pending the Sixth Circuit's
decision in Freed v. Thomas, No. 18-2312 (6th Cir. 2020), which
presented nearly identical facts, substantive arguments, and
jurisdictional questions.
On Oct. 16, 2020, shortly after the Sixth Circuit's decision in
Freed, the stay was lifted and the following class was certified:
All persons and entities that owned real property in the following
counties, whose real property, during the relevant time period, was
seized through a real property tax foreclosure, which was worth
and/or which was sold at tax auction for more than the total tax
delinquency and were not refunded the value of the property in
excess of the delinquent taxes owed: Alcona, Alpena, Arenac, Bay,
Clare, Crawford, Genesee, Gladwin, Gratiot, Huron, Isabella,
Jackson, Lapeer, Lenawee, Macomb, Midland, Montmorency, Ogemaw,
Oscoda, Otsego, Presque Isle, Roscommon, Saginaw, Sanilac, St
Clair, Tuscola, and Washtenaw.
Plaintiff Fox was appointed class representative, and Mr. E. Powell
Miller of The Miller Law Firm PC and Mr. Phillip L. Ellison of
Outside Legal Counsel PLC were appointed the class counsel.
On Jan. 13, 2021, the Court decided several motions to dismiss
filed by the Defendants. Among the various defenses raised there
was the assertion that the County Defendants were immune from suit
because the GPTA specified how the "foreclosing governmental unit"
was to handle the proceeds of a tax foreclosure sale. Accordingly,
the county defendants argued that in retaining surplus proceeds
under the GPTA, they were acting as an "arm of the State."
The Court rejected the County Defendants' argument because
regardless of how proceeds were handled under the GPTA, the County
Defendants voluntarily elected to serve as the foreclosing
governmental unit. Nonetheless, the individual county treasurers
were dismissed on the basis of qualified immunity, and several
federal and state law claims against the county defendants were
dismissed for failure to state a claim. The remaining claims, which
alleged a taking without just compensation, inverse condemnation,
violation of due process, and unjust enrichment, were allowed to
proceed against the County Defendants.
On Feb. 1, 2021, the County the Defendants filed a timely notice of
appeal from the Court's denial of sovereign immunity. That appeal
remains pending before the U.S. Court of Appeals for the Sixth
Circuit -- Fox v. Saginaw County, MI, et al., No. 21-1108 (6th Cir.
2021).
Shortly after the County Defendants' notice of appeal was filed,
the Plaintiff filed a preemptive motion to continue the proceedings
during the appeal. The County Defendants responded with a motion to
stay. Both motions were fully briefed by the parties. Given the
"serious questions" surrounding the sovereign immunity defense, the
County Defendants' motion to stay was granted on March 9, 2021. The
case remains stayed pending the disposition of the County
Defendants' appeal.
The matter is before the Court pursuant to the Plaintiff's
Emergency Motions to Lift the Stay, to Enter a Show Cause Order,
and for Expedited Consideration. In the pending motions, the
Plaintiff claims that the counsel for the Defendants is secretly
negotiating a settlement for the Class outside the purview of the
Court and in violation of Rule 23. Judge Paul L. Maloney recently
denied a similar set of emergency motions filed by the Class
Counsel in the parallel cases: Wayside Church v. Van Buren Cty.,
No. 1:14-cv-1274-PLM (W.D. Mich. 2021) and Grainger, Jr. v. Cty. of
Ottawa, No. 1:19-cv-501-PLM (W.D. Mich. 2021).
In Grainger, a competing tax equity class action, the plaintiff
opted to name most Western District counties as individual
defendants rather than seek certification of a defendant class.
Importantly, the plaintiff in Grainger is represented by the same
counsel as the Class in the case.
In Wayside, the plaintiffs initially sought to represent a
statewide class of property owners against a so-called "defendant
class" that included all Michigan counties that acted as
foreclosing governmental units, including the County Defendants
named in the instant case. But in his recent ruling on the Wayside
defendants' motion to dismiss, Judge Maloney dismissed the Eastern
District counties as defendants.
Leadership over the putative Western District classes remains
contested. Motions for class certification are pending in both
Wayside and Grainger, as both cases have been stayed pending the
resolution of interlocutory appeals regarding sovereign immunity.
For similar reasons, Judge Ludington will deny the Plaintiff's
Emergency Motions. He holds that the Plaintiffs' Emergency Motions
will be denied because there is no apparent basis for emergency
relief.
First, because the plaintiff's counsel in Wayside do not represent
the Class, and Wayside itself no longer involves any Eastern
District counties, any settlement agreement reached in Wayside
would not bind the Class. Judge Maloney reached the same conclusion
when he denied a similar set of emergency motions recently filed by
plaintiff's counsel in Grainger.
Second, there is no evidence that the Wayside negotiations have
even purported to resolve claims belonging to the Class. In their
response brief, thDefendants represent that the "settlement
negotiations in the Western District have not involved any counties
named as tDefendants in the instant case case, nor any class
members who live in those counties." While these representations
have apparently failed to persuade Class Counsel, it remains
uncontested that the settlement negotiations in Wayside have not
involved any of the County Defendants or residents thereof.
Third, the fact that a settlement in Wayside might set an
unfavorable benchmark for this case does not mean that the Court
can or should impede the Wayside negotiations -- negotiations
which, it should be emphasized, are being conducted by nonparties
to the case in another judicial district. Furthermore, as Judge
Maloney noted, the risk that a settlement in one case will affect
another case "is true anytime two lawsuits bring similar claims"
and "does not constitute an emergency."
Finally, at the end of their response brief, the Defendants accuse
the Class Counsel of acting in bad faith. They claim that they were
never asked to clarify their involvement in the Sixth Circuit
mediation, and that if the Class Counsel had simply contacted
defense counsel, the Emergency Motions could have been avoided.
They ask the Court to order the Class Counsel to show cause as to
their factual basis for the Emergency Motions and to pay the
Defendants' costs and fees in responding to the Emergency Motions.
Judge Ludington holds he will not entertain a request for sanctions
embedded within the final paragraph of a response brief. To the
extent that the Defendants seek costs or fees as a sanction under
Rule 11 or 28 U.S.C. Section 1927, they should file a motion to
that effect.
Accordingly, in light of the foregoing, Judge Ludington denied the
Plaintiff's Emergency Motions.
A full-text copy of the Court's Aug. 4, 2021 Order is available at
https://tinyurl.com/9bdznt2p from Leagle.com.
SAN DIEGO, CA: County Jail Visits Halted, Class Action Pending
--------------------------------------------------------------
Alex Riggins, writing for San Diego Union-Tribune, reports that at
least 73 people in custody in San Diego County jails tested
positive for the coronavirus, prompting the Sheriff's Department to
halt in-person visits.
The outbreak was detected after "several people" at three jails
reported flu-like symptoms, according to a Sheriff's Department
news release. Those people were immediately tested for the virus
and isolated, and their housing units were quarantined, the
department said.
When those first tests came back positive, 369 more inmates were
tested due to potential exposure, with 73 testing positive and 296
testing negative, the department said. One infected inmate was
hospitalized as of Aug. 13, while the "vast majority" of the others
"are either asymptomatic or have mild symptoms," according to the
news release.
Additional testing was conducted on inmates assigned to housing
units near those who tested positive, but many of those results
were pending as of Aug. 13, according to the department.
The department's COVID-19 jail status report, typically updated
daily, showed there were 68 active cases on Aug. 13 at George F.
Bailey Detention Facility in Otay Mesa, three at the downtown San
Diego Central Jail and one each at the Vista Detention Facility and
the Las Colinas Detention and Re-Entry Facility, the women's jail
in Santee.
Those who first complained of the flu-like symptoms were in custody
at the Central Jail, George F. Bailey and the East Mesa Reentry
Facility, according to the Sheriff's Department. Daily jail status
reports showed active cases at George F. Bailey went from 26 on
Aug. 11 to 42 on Aug. 12 to 68 by Aug. 13.
At the Central Jail, there were three active cases on Aug. 11, 13
on Aug. 12 and three on Aug. 13, according to the reports. The
Sheriff's Department did not immediately respond to questions about
the changing numbers and whether it was possible infected inmates
from the Central Jail had been moved to George F. Bailey.
Because of the growing number of cases, sheriff's officials
suspended in-person visits at all county jails as of Aug. 13f,
reverting to "a more restrictive environment" like the one enforced
earlier in the pandemic. Since the pandemic began, at least 1,318
inmates have tested positive for the coronavirus, and two have died
from COVID-19 while in custody.
The American Civil Liberties Union and two law firms filed a
class-action lawsuit in March seeking to force Sheriff Bill Gore to
do more to control the spread of the virus in the county jail
system, such as testing more inmates, increasing the number of
vaccinations and maintaining safe distances between inmates.
According to the Sheriff's Department, as of Aug. 7, jail officials
had offered COVID-19 vaccines to 11,942 inmates and vaccinated
3,189. [GN]
SANMINA CORP: Faces Espinoza Class Suit in California
-----------------------------------------------------
Sanmina Corporation said in its Form 10-Q Report filed with the
Securities and Exchange Commission on August 4, 2021, for the
quarterly period ended July 3, 2021, that the company is facing the
"Espinoza Class Action" in Santa Clara County Superior Court.
On June 2, 2021, an employee who worked at the company's Fremont
plant from October 2020 to February 2021 filed a lawsuit against
the company in the Santa Clara County Superior Court on behalf of
himself and all other similarly situated non-exempt employees in
California.
The Espinoza Class Action, which alleges violations of California
Labor Code provisions governing meal and rest periods, final wages,
and wage statements, seeks certification of a class of all
non-exempt employees employed from four years before the filing of
the initial complaint to the time of trial.
Sanmina said, "We believe that the claims made in this case are
substantially subsumed by the Settlement in the Samaniego Class
Action and, in any case, intends to contest the plaintiff's claims
vigorously."
Sanmina Corporation is a provider of integrated manufacturing
solutions, components, products and repair, logistics and
after-market services. The company is based in San Jose,
California.
SANMINA CORP: Final Settlement Approval Hearing Set for Oct. 27
---------------------------------------------------------------
Sanmina Corporation said in its Form 10-Q Report filed with the
Securities and Exchange Commission on August 4, 2021, for the
quarterly period ended July 3, 2021, that a final Settlement
approval hearing will take place on October 27, 2021.
In October 2018, a contractor who had been retained by the company
through a third party temporary staffing agency from November 2015
to March 2016 filed a lawsuit against the company in the Santa
Clara County Superior Court on behalf of himself and all other
similarly situated Company contractors and employees in California,
alleging violations of California Labor Code provisions governing
overtime, meal and rest periods, wages, wage statements and
reimbursement of business expenses.
The complaint sought certification of a class of all non-exempt
employees, whether employed directly or through a temporary
staffing agency, employed from four years before the filing of the
initial complaint to the time of trial.
Additionally, on November 1, 2019, another contractor retained
through a temporary staffing agency filed a lawsuit against the
company in the Santa Clara County Superior Court.
The complaint, which included a single cause of action under
California's Private Attorneys General Act of 2004 ("PAGA"),
alleged Labor Code violations substantially similar to those
alleged in the October 2018 class action lawsuit and seeks
penalties on behalf of the State of California and other "aggrieved
employees".
Although the company continues to deny any wrongdoing, on November
19, 2020, the company reached an agreement in principle to resolve
all claims.
Under the Settlement, the company's total payout will depend on the
number and value of claims submitted by members of the settlement
class to the claims administrator, and cannot exceed $5 million
(but could be as low as approximately $3.5 million), inclusive of
plaintiffs' attorneys' fees, costs, and certain other items.
On December 3, 2020, in connection with and in order to effect the
Settlement, plaintiffs dismissed the PAGA complaint pending in
Santa Clara County Superior Court and refiled it as a class and
PAGA action in Kern County Superior Court (the "Samaniego Class
Action").
Similarly, on April 3, 2021, the class action complaint originally
filed in the Santa Clara County Superior Court was dismissed
without prejudice.
On July 16, 2021, the Kern County Superior Court preliminarily
approved the Settlement; a final Settlement approval hearing will
take place on October 27, 2021.
Sanmina Corporation is a provider of integrated manufacturing
solutions, components, products and repair, logistics and after
market services. The company is based in San Jose, California.
STURM RUGER: Primus Group Suit Closed
-------------------------------------
Sturm, Ruger & Company, Inc. said in its Form 10-Q Report filed
with the Securities and Exchange Commission on August 4, 2021, for
the quarterly period ended July 3, 2021, that the putative class
action suit entitled, Primus Group, LLC v. Smith and Wesson, et
al., is closed.
Primus Group, LLC v. Smith and Wesson, et al., is a previously
reported putative class action filed in the United States District
Court for the Southern District of Ohio on August 8, 2019 that was
dismissed by the trial court, with prejudice.
Plaintiff filed a Notice of Appeal on October 15, 2019.
The Court of Appeals for the Sixth Circuit entered an order
affirming the dismissal on February 8, 2021.
Sturm, Ruger said, "Because no further appeals were timely filed,
this matter was closed in the three months ended July 3, 2021."
Sturm, Ruger & Company, Inc., together with its subsidiaries,
designs, manufactures, and sells firearms under the Ruger name and
trademark in the United States. It operates in two segments,
Firearms and Castings. Sturm, Ruger & Company, Inc. was founded in
1949 and is based in Southport, Connecticut.
TANDEM DIABETES: Continues to Defend Deluna Consolidated Class Suit
-------------------------------------------------------------------
Tandem Diabetes Care, Inc. said in its Form 10-Q Report filed with
the Securities and Exchange Commission on August 4, 2021, for the
quarterly period ended June 30, 2021, that the company continues to
defend a consolidated class action suit entitled, Joseph Deluna et
al v. Tandem Diabetes Care, Inc.
In May 2020, the Company was named as a defendant in three
California state court class action lawsuits arising from the data
breach the Company experienced in January 2020.
Collectively, these lawsuits seek statutory, compensatory, actual,
and punitive damages; equitable relief, including restitution; pre-
and post-judgment interest; injunctive relief; and attorney fees,
costs, and expenses from the Company.
On July 24, 2020, these three pending lawsuits were consolidated
into a single case in the Superior Court of the State of California
in the County of San Bernardino entitled Joseph Deluna et al v.
Tandem Diabetes Care, Inc. The consolidated case alleges violations
of the Confidentiality of Medical Information Act (CMIA),
California Consumer Privacy Act (CCPA), California's Unfair
Competition Law (UCL), and breach of contract.
The Company filed a demurrer seeking dismissal of all claims, which
was heard by the Court on October 27, 2020, and which resulted in
the following outcome: (i) the demurrer of the CMIA claim was
denied; (ii) the demurrer of the CCPA claim was sustained; and
(iii) the demurrer of the UCL and contract claims were sustained
with leave to amend the pending complaint.
A second demurrer was heard by the Court on March 29, 2021 with the
following outcome: (i) the demurrer of the CMIA claim was denied;
and (ii) the demurrer of the UCL and contract claims were narrowed
in scope to dismiss three plaintiffs for either failing to allege
cognizable damages or injuries-in-fact, resulting in two remaining
plaintiffs.
Although the Company intends to vigorously defend against these
claims, there is no guarantee that the Company will prevail.
Tandem said, "The Company presently is unable to determine the
ultimate outcome of these lawsuits or determine the amount (or
range) of possible losses associated with the lawsuits."
Tandem Diabetes Care, Inc. is a public US medical device
manufacturer based in San Diego, CA. The company develops medical
technologies for the treatment of diabetes and specifically insulin
infusion therapy.
TEXAS: Hearing Set in Lawsuit Abortion Providers' Class Action
--------------------------------------------------------------
Zak Wellerman, writing for Tyler Morning Telegraph, reports that a
virtual hearing in the lawsuit abortion providers filed against
114th District Judge Austin Reeve Jackson about Texas' upcoming
fetal heartbeat law has been set for the end of this month.
U.S. District Judge Robert Pitman signed an order setting a hearing
for 9 a.m. Aug. 30 to address the abortion providers' request to
halt the enforcement of Senate Bill 8 until the litigation is
resolved.
SB 8, authored by state Sen. Bryan Hughes, R-Mineola, goes into
effect Sept. 1 to ban abortion in Texas about six weeks into a
pregnancy and allows people to sue a physician who performs an
abortion and to possibly be awarded no less than $10,000 in
statutory damages, according to the text of the bill.
The class-action suit filed by abortion providers, including Whole
Woman's Health and Planned Parenthood, on July 13 seeks to stop
officials like Jackson, of the 114th District Court, and Smith
County District Clerk Penny Clarkston from processing potential
abortion-related lawsuits against providers. Right to Life East
Texas Director Mark Lee Dickson is also named in the lawsuit.
The abortion providers, who are the plaintiffs, asked Pitman to
sign a temporary order halting the enforcement of SB 8.
Whole Woman's Health and other abortion providers said in the
document abortion patients would "immediately suffer irreparable
harm in the form of deprivation of their constitutional rights."
The document states either a temporary stop to enforcement or a
final judgment in the case is needed before Sept. 1 to ensure the
state's residents' right to have a safe abortion.
If approved by the federal court's judge, Jackson, Clarkston and
others would be stopped from enforcing the bill as law until a
final judgment is reached in the lawsuit.
Prior to the plaintiffs' request to prevent SB 8 enforcement,
Jackson's attorney, Shane McGuire, on Aug. 4 filed a motion to
dismiss the lawsuit due to lack of jurisdiction.
He stated the plaintiffs cannot make claims against Jackson because
of sovereign immunity, meaning a person can't sue the government
without consent from the government.
McGuire called the plaintiffs' sought-after relief a "thinly-veiled
request for this court to tell Judge Jackson how to be a judge."
Whole Woman's Health said in court documents the abortion providers
are likely to succeed on the merits of due process, equal
protection, First Amendment and federal preemption claims.
On Aug. 12, Whole Woman's Health and the other abortion providers
responded to Jackson and other defendants' requests to dismiss the
lawsuit with a document opposing dismissal.
The plaintiffs state Jackson's claim of the federal court not
having jurisdiction argues that "federal courts are powerless to
stop any state from stripping its residents of their federal
rights, so long as the state is cunning enough."
"This Court plainly has jurisdiction over Plaintiffs' claims
against the defendant classes of judges and clerks," the
plaintiffs' document reads.
In the document, the plaintiffs said judges and clerks, like
Jackson and Clarkston, are the officials tasked with enforcing the
"heartbeat" law's provision regarding citizens suing abortion
providers.
"Plaintiffs thus have standing to sue those defendants, and those
defendants lack any colorable claim to sovereign immunity," the
document states. "defendants' motions to dismiss should be
denied."
If SB 8 is not blocked before its effective date, the abortion
providers write that the potential lawsuits from citizens would
"bankrupt" and create a "threat of ruinous monetary penalties and
injunctions ordering them to stop providing constitutionally
protected health care and to stop supporting abortion patients."
[GN]
UNITED STATES: Messiah University Students File Title IX Lawsuit
----------------------------------------------------------------
Zack Hoopes, writing for The Sentinel, reports that the plaintiffs
in a legal suit over the federal government's Title IX religious
exemption policy say they have filed formal Title IX complaints
against the schools referenced in the suit, including Messiah
University.
The legal strategy, indicated in a new round of court briefs filed
over the past week, could compel schools like Messiah, located in
Upper Allen Township, to invoke religious exemptions for sexually
discriminatory policies in response to the complaints, although the
U.S. Department of Education and advocates for religious schools
have cast doubt on the suggestion that this would change the course
of the case.
The suit, referenced as Hunter et. al. v. U.S. Department of
Education, is a class-action suit by students who say they have
been harmed by anti-LGBTQ policies at religious colleges and
universities that are covered by an exemption to Title IX, the
federal statute that prohibits sex discrimination in schools that
receive federal financial support.
That religious exemption has allowed such schools to receive
federal funding even if they are not fully compliant with Title IX
due to their religious doctrines.
The civil rights organization leading the suit, the Religious
Exemption Accountability Project, is suing the Department of
Education over the Title IX exemption, claiming both that the
exemption is unconstitutional and that the application of the
exemption, under rulemaking passed by the Department of Education
last year, is illegal as well.
REAP indicated in a filing Aug. 6 that it believes 26 of the 35
complaints recently filed by the plaintiffs it represents could be
resolved through a challenge to the Donald Trump-era rulemaking
that broadened the interpretation of Title IX's exemption clause.
The federal government argued in a response brief that the policy
revisions codified existing procedure and do not constitute
actionable changes.
But in the same filing, the Department of Education wrote that it
does "not condone the alleged actions that plaintiffs attribute to
their educational institutions" and that eliminating discrimination
against LGBTQ students is a "critical part" of the department's
mission.
This balancing act by federal attorneys -- defending the technical
legality of a system that the Biden administration has been
critical of in principle -- has prompted proponents of the Title IX
exemption, particularly the Council for Christian Colleges and
Universities, to attempt to intervene in the case on the grounds
that the federal government will not sufficiently represent the
interests of those schools that stand to be affected.
Messiah spokesperson Danielle Ran said Messiah does not intend to
intervene in the case, given that only the Department of Education
is named as a defendant and not the individual schools cited by the
plaintiffs, but "works collaboratively" with the CCCU on such
matters.
"We are hopeful that both federal and state governments will be
responsive to the types of religious autonomy concerns currently
being raised by advocacy partners like the CCCU in response to
Hunter v. Department of Education," Ran said in an email.
Rulemaking
Title IX is the federal civil rights statue that prohibits
discrimination "on the basis of sex" by educational institutions
that receive federal funding. The law contains an exemption clause
for institutions "controlled by a religious organization" and where
Title IX "would not be consistent with the religious tenets of such
organization."
Messiah University, according to the plaintiffs' filing, is one of
several schools that has never, according to available Department
of Education records, requested a Title IX exemption despite having
policies in place toward homosexual students that likely would
require one, REAP contends.
Messiah is also among the schools that have not indicated they are
"controlled by a religious organization" in a precise sense of the
language in Title IX, REAP's attorneys wrote.
The rules promulgated by the Education Department under Trump
include broad language regarding the religious organization clause,
stipulating that schools have significant latitude in indicating
that they are controlled by an organization with beliefs that are
incompatible with Title IX.
Parallel rulemaking also allows religious schools to exert such an
exemption even if they have not sought an exemption opinion from
the Department of Education.
If that rulemaking were struck down as REAP is seeking, the group
believes it would call into question the ability of some schools,
including Messiah, to obtain an exemption from Title IX if their
policies were challenged -- which, as of last month's Title IX
complaints, they have been.
REAP argues that the Trump-era guidance falls outside the bounds of
what the Education Department is allowed to unilaterally do, since
it extends the application of Title IX beyond the language passed
by Congress by creating a "'catch-all' provision that allows 'other
evidence' to 'establish that an educational institution is
controlled by a religious organization.'"
The Department of Education and the CCCU both dispute this
interpretation, suggesting the practice would still be the same
regardless of the Trump-era interpretations, and thus did not
constitute a policy reversal that would exceed the department's
authority.
"The rule revisions were not a change in position; they largely
codified existing practice and clarified a few issues on which [the
department] had not yet formally spoken," federal attorneys wrote.
REAP's suggestion that the exact language of Title IX requires
schools to demonstrate control by a separate religious organization
is incorrect, federal attorneys wrote, and the Education Department
"reasonably concluded that an institution could be 'controlled' by
its own board of directors or similar internal structure.
Similarly, the CCCU wrote last week that "plaintiffs are inviting
the court not only to invalidate the November 2020 regulation, but
also to read into the statutory text a requirement that simply is
not there."
School policy
While the defendant in the case is the Department of Education, the
class-action suit is premised on the testimony and evidence of 40
plaintiffs regarding the alleged harm they have suffered from the
policies of 27 religious schools, including Messiah.
In REAP's brief, the Messiah student who is a plaintiff in the case
says that they are bisexual. The student, while currently in a
heterosexual relationship, feels they cannot discuss their
sexuality with other students on campus for fear of differential
treatment by Messiah, which they allege has a culture of students
reporting on each other for perceived transgressions.
While Messiah "holds relatively progressive philosophies compared
to other religious schools," this stops with the school's codified
double-standard for homosexual students, according to the
plaintiff.
Messiah's student handbook states that "students who experience
same-sex attraction or identify as LGBT+ are expected to refrain
from 'same-sex sexual expression' as it is embodied in culturally
contextual practices (e.g., identifying as a couple or exhibiting
expressions of physical intimacy)."
However, "it may be appropriate for committed male/female couples
to hold hands and even kiss," according to the handbook, which also
states that "we affirm Christian marriage to be the union of one
man and one woman and that human sexuality should be understood
within this framework," and that "forms of same-sex sexual
expression fall outside of God's design for sexual expression."
REAP's core argument in seeking a court prohibition on Title IX
exemptions is that it violates the constitutional ban on the
establishment of religion.
The exception to federal regulatory and reporting requirements
enjoyed by schools with certain beliefs creates an unconstitutional
preference, REAP argues, "as it favors a subset of religious
educational institutions, namely, those controlled by religious
organizations whose tenets conflict with Title IX" relative to
other religious beliefs that do not conflict with the law.
The fact that students at such schools do not enjoy the same
protection under Title IX as students at nonexempt schools is a
further violation of due process under the Fifth Amendment, REAP
argues.
The Department of Education, in its most recent filing, argues that
the plaintiffs are unlikely to succeed on these arguments. The fact
that the federal government provides funding to schools that are
exempted from Title IX does not sufficiently tie the two together
— "these allegations do not transform private conduct into
governmental conduct," federal attorneys wrote.
The exemption does not single out a specific religion or creed, the
federal government argues, and the fact that the religious
exemption to Title IX lines up with a certain subset of religious
tenets is not enough to violate the constitutional establishment
clause.
Intervention
The CCCU seeks to intervene as a defendant in the case, arguing
that the Education Department is not able to mount a full defense
of the Title IX religious exemption.
In June, the department filed a brief indicating it intended to
defend the case and arguing against the motions to intervene by
CCCU and other religious colleges. The department argued that the
intervenors "have not made the necessary 'compelling showing' that
the federal defendants will fail to adequately represent their
interests in pursuing the shared objective of upholding the
religious exemption as applied."
A day later, after the Biden administration was the subject of
backlash by LGBTQ advocates, the department revised its response.
The amended brief states that "the federal defendants' objective is
to defend the constitutionality of the statutory exemption," but
that the Department of Education is "conducting a comprehensive
review of its regulations implementing Title IX" in light of
President Joe Biden's executive order on combating discrimination
based on sexual orientation and gender identity.
Nevertheless, "until that process is complete, it would be
premature to conclude that the government is an inadequate
representative," the department wrote.
These developments have not been lost on the CCCU, which cited in
its response filing the removal of the "shared goal" language and
any references to defending the Title IX exemption as currently
applied.
Rather, the CCCU wrote, it is not satisfied with the department's
assertion that it can defend the legislative intent of the Title IX
exemption, given that "in any event, Congress's intent would only
apply to the defense against a facial challenge to the statute,
whereas plaintiffs' case is a mixture of facial and as-applied
challenges."
The Biden administration has not specifically indicated that it
intends to rescind the Trump-era religious exemption criteria, and
last week's filing indicated the federal government would defend
the procedural legality of the 2020 rulemaking, even if the
administration did not agree with it politically.
Other Title IX policies promulgated by Trump's education secretary,
Betsy DeVos, are already in the process of being re-written by
current Secretary of Education Miguel Cardona, particularly
policies regarding sexual assault investigations.
The stakes of the case are ultimately financial. If the Title IX
exemption were to be struck down wholesale, or if the court or the
Biden administration were to reverse the Trump-era implementation
rules and interpret them in the way REAP suggests, religious
schools would be faced with either changing their policies or
losing funds.
The CCCU argues that would be in violation of prior court precedent
that broad offers of government funding cannot be rescinded simply
because of religion, and that the policies regarding LGBTQ students
in question are inextricable from that religion. Otherwise, the
court "asks [religious schools] to do what is unthinkable: Either
require their students to forego permissible federal funding or
deny their faith in teaching and practice."
REAP takes this argument to the opposite conclusion, that the
federal government has no legitimate interest in establishing an
exception to Title IX to permit religious freedom, given that Title
IX does not control the ability of a school to exist, but rather to
receive funding. [GN]
UNUM GROUP: 6th Cir. Affirms Dismissal of TN Securities Class Suit
------------------------------------------------------------------
Unum Group said in its Form 10-Q Report filed with the Securities
and Exchange Commission on August 4, 2021, for the quarterly period
ended June 30, 2021, that the Sixth Circuit Court of Appeals
affirmed the order of dismissal in the consolidated purported class
action suit entitled, In re Unum Group Securities Litigation.
Three alleged securities class action lawsuits were filed against
Unum Group and individual defendants as follows:
- On June 13, 2018, an alleged securities class action lawsuit
entitled Cynthia Pittman v. Unum Group, Richard McKenney, John
McGarry, and Daniel Waxenberg was filed in the United States
District Court for the Eastern District of Tennessee.
The plaintiff seeks to represent purchasers of Unum Group publicly
traded securities between January 31, 2018 and May 2, 2018.
The plaintiff alleges the Company caused its shares to trade at
artificially high levels by failing to disclose information about
the rate of long-term care policy terminations and long-term care
claim incidence resulting in misleading statements about capital
management plans and long-term care reserves.
The complaint asserts claims under Sections 10(b) and 20(a) of the
Securities Exchange Act of 1934 and Rule 10b-5 thereunder and seeks
compensatory damages in an amount to be proven at trial.
The Company strongly denies these allegations and will vigorously
defend the litigation.
- On July 13, 2018, an alleged securities class action lawsuit
entitled Scott Cunningham v. Unum Group, Richard McKenney, John
McGarry, and Daniel Waxenberg was filed in the United States
District Court for the Eastern District of Tennessee.
The allegations, class period, and damages claimed mirror those in
the Pittman matter.
The Company strongly denies these allegations and will vigorously
defend the litigation.
- On July 25, 2018, an alleged securities class action lawsuit
entitled City of Taylor Police and Fire Retirement System v. Unum
Group, Richard McKenney, John McGarry, Steve Zabel, and Daniel
Waxenberg was filed in the United States District Court for the
Eastern District of Tennessee.
The plaintiff seeks to represent purchasers of Unum Group publicly
traded securities between October 27, 2016 and May 1, 2018.
The allegations and damages claimed mirror those in the Pittman
matter.
The Company strongly denies these allegations and will vigorously
defend the litigation.
On November 9, 2018, the court consolidated the Pittman,
Cunningham, and City of Taylor Police and Fire Retirement System
cases into one matter entitled In re Unum Group Securities
Litigation, appointed a lead plaintiff and lead plaintiff's
counsel, and directed the plaintiff to file a consolidated amended
complaint.
On January 15, 2019, the plaintiff filed a consolidated amended
complaint asserting claims under Sections 10(b) and 20(a) of the
Securities Exchange Act of 1934 and Rule 10b-5 thereunder and seeks
compensatory damages in an amount to be proven at trial as well as
costs, expenses, and attorney's fees.
On March 18, 2019, the Company filed a motion to dismiss the
consolidated amended complaint. On June 1, 2020, the court granted
the Company's motion and dismissed the cases with prejudice.
On June 26, 2020, the plaintiff filed a notice of appeal with the
Sixth Circuit Court of Appeals, which, on June 28, 2021 affirmed
the district court's dismissal of the cases with prejudice.
Unum Group, together with its subsidiaries, provides financial
protection benefit solutions in the United States, the United
Kingdom, and internationally. It operates through Unum US, Unum
International, Colonial Life, and Closed Block segments. The
company was founded in 1848 and is based in Chattanooga,
Tennessee.
WALMART STORES: Lisowski Consumer Suit Dismissed With Prejudice
---------------------------------------------------------------
In the case, CHRISTOPHER LISOWSKI, on behalf of himself and all
others similarly situated, Plaintiff v. WALMART STORES, INC.,
t/d/b/a WALMART, Defendant, Case No. 2:20-cv-1729-NR (W.D. Pa.),
Judge J. Nicholas Ranjan of the U.S. District Court for the Western
District of Pennsylvania grants Walmart's motion to dismiss Mr.
Lisowski's claims, and dismisses his complaint with prejudice.
Twice in the past two years, Plaintiff Lisowski went to Walmart to
buy a six-pack of "5-Hour Energy" drinks. With each of these
purchases, on top of the base price, Walmart charged Mr. Lisowski
94 cents in sales tax. Mr. Lisowski paid the tax, but later came to
believe those charges were improper, because 5-Hour Energy is
purportedly a "dietary supplement" not subject to sales tax in
Pennsylvania. So he filed the class action, alleging that Walmart's
incorrect assessment of sales tax violates the Pennsylvania Unfair
Trade Practices and Consumer Protection Law ("UTPCPL"), and also
amounts to conversion, unjust enrichment, and breach of a
constructive trust.
Walmart is a multi-billion-dollar corporation that operates around
8,500 retail stores in 15 countries, including at least 131 Walmart
and Sam's Club stores in Pennsylvania alone. Among many other
things, Walmart sells "5-Hour Energy" to customers in Pennsylvania
and elsewhere. 5-Hour Energy is an energy drink, marketed as a
"dietary supplement," that provides caffeine comparable to a cup of
coffee, delivered in the form of an easily consumed "shot." Bottles
of 5-Hour Energy are labeled as "DIETARY SUPPLEMENTS," and Walmart
sells them in the medicine, drug, and medical-supply section of its
stores.
Plaintiff Lisowski lives in Pittsburgh, Pennsylvania. On Dec. 29,
2019, Mr. Lisowski entered a Walmart in Pittsburgh and bought a
six-pack of 5-Hour Energy, among other things. For that item,
Walmart charged Mr. Lisowski the purchase price of $13.48, plus
sales tax of $0.94. The next year, Mr. Lisowski returned to the
same Walmart and bought another six-pack of 5-Hour Energy. Once
again, Walmart charged him sales tax of $0.94 on top of the base
purchase price.
In Pennsylvania, retailers are required to collect sales tax, equal
to 6-8% of the purchase price, on all sales of tangible, personal
property. But there are exceptions. Both the statute and the
related regulations promulgated by Pennsylvania's Department of
Revenue exempt certain items from imposition of the tax. Of
relevance here, the Department of Revenue has publicly notified all
retailers that "Dietary Supplements and Substitutes" are not
subject to sales tax. The Department also issued a "Retailer's
Information" booklet that identifies "dietary supplements and
substitutes, in any form" as exempt from sales tax in
Pennsylvania.
Despite these directives regarding "dietary supplements," Walmart
charged sales tax to Mr. Lisowski, and other similarly situated
individuals, on purchases of 5-Hour Energy. This conduct forms the
basis for all of Mr. Lisowski's statutory and common-law claims in
the complaint.
Walmart now moves to dismiss Mr. Lisowski's claims on several
grounds.
Analysis
Applying the familiar standard of Rule 12(b)(6), Judge Ranajn will
grant Walmart's motion and will dismiss the case with prejudice.
Simply put, Mr. Lisowski's complaint suffers from two
insurmountable flaws which, in tandem, cause all his claims to fail
as a matter of law.
First, a retailer's incorrect assessment of sales tax is not
conduct covered by the UTPCPL, which only regulates activity that
is part of "the conduct of any trade or commerce." When collecting
sales tax, a retailer is not conducting "trade or commerce," even
if such collection occurs in connection with a commercial
transaction. Instead, because the Commonwealth requires retailers
to collect sales tax on the Commonwealth's behalf, the retailer
steps into the shoes of the Commonwealth and acts as a state agent,
motivated by public duty rather than private gain. Thus, while it
is true that the UTPCPL extends broadly, as to regulate all manner
of deceptive activity in the conduct of trade or commerce, it does
not extend to regulate activity disconnected from the retailer's
commercial interests, such as tax collection. Mr. Lisowski's
statutory claim fails for that reason.
Second, Mr. Lisowski's common-law claims are barred by the
existence of an administrative procedure for consumers to obtain
sales-tax refunds from the Pennsylvania Department of Revenue.
Pennsylvania law requires claimants to strictly pursue that
statutory remedy, to the exclusion of any common-law relief, so
long as it is constitutionally adequate. Under the Erie doctrine,
this is a substantive, rather than procedural, aspect of
Pennsylvania law that applies in a federal court diversity action.
What's more, the Pennsylvania Supreme Court has already held that
the very same statutory refund procedures provide exclusive and
adequate relief for any improper assessment of sales tax. Because
such relief is available to Mr. Lisowski, should he choose to
pursue it, his common-law causes of action must also be dismissed.
Conclusion
For these reasons, Judge Ranjan grants Walmart's motion.
Additionally, since the bases for his decision relate to purely
legal defects in the complaint, rather than factual ones, the Judge
finds that any amendment of the complaint here would be futile; he,
therefore, dismisses the complaint with prejudice. An appropriate
order follows.
A full-text copy of the Court's Aug. 4, 2021 Opinion is available
at https://tinyurl.com/897at953 from Leagle.com.
WELLS FARGO BANK: Hart Sues Over Improper Mortgage Servicing
------------------------------------------------------------
JANE ANN HART, individually and on behalf of all others similarly
situated, Plaintiff v. WELLS FARGO BANK, N.A., Defendant, Case No.
1:21-cv-14644 (D.N.J., Aug. 5, 2021) is an action seeking to
redress injuries the Plaintiff and the Class have suffered and will
continue to suffer, as a result of the Defendant's unlawful
practices in its servicing of mortgages.
The Plaintiff alleges in the complaint that the Defendant engaged
in a fraudulent scheme in servicing the Plaintiffs mortgage loan,
in violation of federal and state law. The Defendant was assisted
by a nationwide web of outside vendors who acted in concert with it
to extract improper inspection fees from homeowners who had fallen
into arrears on their mortgages.
Allegedly, these improper inspection fees were imposed on borrowers
as additional loan charges, which this action seeks to recover, and
placed Hart and other borrowers whose mortgages were serviced by
the Defendant in difficult financial straits, putting their homes
in jeopardy and, in some instances, resulting in bankruptcy.
The Defendant utilizes a computer system to automatically assess
fees for property inspections without regard to the terms of the
borrowers' mortgage loans or the relevant circumstances. Instead of
being based upon reasonable parameters, the computer system was
programmed to assess as many charges as possible and to pay first
all outstanding fees and costs before satisfying interest and
principal, added the suit.
Wells Fargo Bank, National Association operates as a bank. The Bank
offers online and mobile banking, home mortgage, loans and credit,
investment and retirement, wealth management, and insurance
services. [BN]
The Plaintiff is represented by:
Roosevelt N. Nesmith, Esq.
LAW OFFICE OF ROOSEVELT N. NESMITH, LLC
363 Bloomfield Avenue, Suite 2C
Montclair, NJ 07042
Telephone: (973) 259-6990
E-mail: roosevelt@nesmithlaw.com
WESTPAC BANKING: Federal Court Backs Insurance Class Settlement
---------------------------------------------------------------
Insurancenews.com.au reports that plaintiff law firm Shine Lawyers
says it has received Federal Court approval to settle the life
insurance class action it filed against Westpac in October 2017.
Under the settlement agreement Westpac will pay up to $30 million
without any admission of liability.
Westpac previously announced in April that it had agreed to settle
the class action relating to premiums for life insurance policies
sold between 2011 and 2017 "without any admission of liability".
The agreement was subject to approval from the Federal Court.
The class action on behalf of tens of thousands of customers
alleges the lender and its businesses -- St George, BT and Bank of
Melbourne -- charged them 4.3% and/or 9.09% more for policies that
were the same as those being offered by independent advisers.
Shine Lawyers Head of Class Actions Jan Saddler says the settlement
represents a good outcome for affected customers.
"There is still time for the thousands impacted by the bank's
alleged misconduct to come forward and to sign up for our class
action," Ms Saddler said.
"In coming weeks, we'll be reaching out to all potential group
members to advise on registration processes and dates." [GN]
YELLOW CORP: Settlement in Lewis Suit Awaits Final Approval
-----------------------------------------------------------
Yellow Corporation said in its Form 10-Q Report filed with the
Securities and Exchange Commission on August 4, 2021, for the
quarterly period ended June 30, 2021, that the parties in Christina
Lewis v. YRC Worldwide Inc., et al., Case No. 1:19-cv-00001, awaits
the court's final approval of their settlement.
In January 2019, a purported class action lawsuit captioned
Christina Lewis v. YRC Worldwide Inc., et al., Case No.
1:19-cv-00001, was filed in the U.S. District Court for the
Northern District of New York against the Company and certain of
its current and former officers.
The complaint was filed on behalf of persons who purchased or
otherwise acquired the Company's publicly traded securities between
March 10, 2014 and December 14, 2018. The complaint generally
alleged that the defendants had violated Sections 10(b) and 20(a)
of the Securities Exchange Act of 1934 by making false and
misleading statements relating to the Company's freight billing
practices as alleged in the Department of Defense complaint
described above.
The action included claims for damages, including interest, and an
award of reasonable costs and attorneys' fees.
The co-lead plaintiffs filed an amended complaint on June 14, 2019,
and the defendants moved to dismiss it on July 15, 2019. On March
27, 2020, the court granted defendants' motion to dismiss in its
entirety and entered judgment closing the case.
The co-lead plaintiffs filed a notice of appeal to the U.S. Court
of Appeals for the Second Circuit on April 27, 2020. That appeal is
pending and has been fully briefed.
On December 16, 2020, the parties to the appeal filed an
informative notice to inform the Second Circuit that they would
engage in mediation to explore whether the case can be resolved.
In February 2021, the parties to the appeal reached an agreement in
principle to settle the matter for an immaterial amount, subject to
certain conditions, including execution of a definitive settlement
agreement and court approval.
On February 10, 2021, the Second Circuit granted the parties' joint
motion to stay the appeal and remand the case to the District
Court.
On April 12, 2021, the parties executed the definitive settlement
documents, agreeing to settle the case for $2.1 million, subject to
court approval.
Plaintiffs filed a motion on April 15, 2021 asking the court to
preliminarily approve the proposed settlement and authorize notice
to the settlement class.
The court granted preliminary approval on April 19, 2021, and
scheduled a fairness hearing for August 18, 2021.
Yellow Corporation is a holding company that, through its operating
subsidiaries, offers its customers a wide range of transportation
services. The company is based in Overland Park, Kansas.
[*] DLA Piper Discusses Australia's Continuous Disclosure Regime
----------------------------------------------------------------
Kieran O'Brien, Esq., Keara M. Gordon, Esq., Cindy Bors, Esq., and
Matthew Spain, Esq., of DLA Piper, in an article for Lexology,
report that last week the Federal Government introduced permanent
reforms to the continuous disclosure regime and misleading and
deceptive conduct provisions in the Corporations Act 2001 (the
Corps Act) and ASIC Act 2001 (the ASIC Act) which provide that
companies and their officers will not be exposed to civil liability
unless they had a requisite mental element, being knowledge,
recklessness or negligence). This change is in line with the
recommendations of the Parliamentary Joint Committee for
Corporations and Financial Services[1] and also extends the
temporary measures originally introduced at the height of the
COVID-19 pandemic.
This change brings Australia's continuous disclosure regime closer
to that of its counterparts in the United States and the United
Kingdom, and there is much we can learn from our international
colleagues.
Background
On 10 August 2021, the Treasury Laws Amendment (2021 Measures No.
1) Bill 2021 (Cth) passed both Houses of Parliament. The bill
amended the Corps Act and the ASIC Act to permanently implement a
fault element into the continuous disclosure civil penalty
provisions and to also provide that companies and their offices are
not exposed to civil liability for misleading or deceptive conduct
in connection with the contravention of the continuous disclosure
obligations, unless the required mental element has been proven.
Specifically, a new Section 674A provides that an entity will only
be liable for a contravention of its disclosure obligation where
it:
"knows, or is reckless or negligent with respect to whether, the
information would, if it were generally available, have a material
effect on the price or value of ED securities of the entity."
A similar provision has been included for unlisted entities or
listed entities with rules not requiring disclosure.[2]
The amendments also introduce accessorial liability where a person
was involved in the contravention, although they will have a
defence if they took all reasonable steps to comply with an
entity's obligations and then reasonably believed the entity to be
compliant.[3]
As a consequence of the new civil penalty provisions, new sections
have also been added into the Corps Act[4]and the ASIC Act[5] which
provide that misleading and deceptive conduct claims will only be
available where the requisite mental element is established
(knowledge, recklessness or negligence). These are necessary
changes which go further than the temporary changes originally
introduced in 2020 which only applied to the continuous disclosure
breaches and did not extend to the misleading and deceptive conduct
provisions. These amendments create consistency across the relevant
breach provisions as shareholder class actions in Australia are
routinely brought alleging breaches of the continuous disclosure
regime and the misleading and deceptive conduct provisions in the
Corps Act[6] and the ASIC Act.[7]
Commentary
Shareholder class actions are a common feature of Australia's class
action landscape and there has been little sign of that trend
abating with the continued influence of third party litigation
funding and the emergence of new players in the plaintiff class
action lawyer landscape. The confidence with which these types of
claims have been pursued has been fuelled by Australia's previous
"strict liability" regime which has not required proof of
intentional wrongdoing, recklessness or negligence.
The introduction of the fault element is intended by the Federal
Government to address an imbalance between the benefits to the
market of continuous disclosure obligations and the costs imposed
on entities and officers, particularly the rapidly increasing
insurance premiums in relation to listed entities.
These changes may bring some comfort to companies in reducing the
number of speculative shareholder class actions being issued, but
they don't mean that companies (and their directors and employees)
should be any less vigilant in ensuring that companies meet their
ongoing continuous disclosure requirements. These amendments also
add another string to the bow of Boards who, following the landmark
Federal Court decision in Worley,[8] now have greater insight into
how, through a documented paper trail, a listed entity can seek to
demonstrate the reasonable basis for earnings guidance. Thus,
whilst Australia has seen a growth of shareholder class actions
over the last few years, the Worley decision along with these
amendments give Boards some ground in defending such litigation.
However, litigation funders and other stakeholders will still be on
the lookout for shareholder class actions, many of which already
contained allegations of knowledge and negligence prior to these
amendments in any event. How then will the passage of this
legislation impact on the securities class action landscape in
Australia?
The US approach and what we can learn
In the United States, class action securities litigation is
routinely filed after a significant corporate event, such as a
restatement, earnings miss, extraordinary corporate transaction,
and the like. The law applicable to most of these challenges is the
Private Securities Litigation Reform Act of 1995 (PSLRA), which
applies to corporate statements to the market outside the context
of a registration statement or prospectus. The PSLRA was passed as
a way to deter the flood of frivolous filings against corporations,
officers and directors, which inflict substantial costs and
potential reputational and headline risk. One way in which it
attempted to do so was to strengthen the pleading requirements to
require plaintiffs to specifically plead facts establishing
scienter in order to survive a motion to dismiss challenge. Where
those standards are not met, the case can be dismissed at the
motion to dismiss stage before any costly and burdensome discovery
occurs.
The PSLRA requires a plaintiff to "specify each statement alleged
to have been misleading, the reason or reasons why the statement is
misleading" and "all facts that form the plaintiff's basis for
believing that the statement is misleading."[9] Specifically with
respect to scienter, the PSLRA requires plaintiffs to "state with
particularity facts giving rise to a strong inference" of
"scienter" - "an intent to deceive, demonstrated by knowledge of
the statement's falsity or reckless disregard of a substantial risk
that the statement is false"[10] (emphasis added). The plaintiff
must demonstrate that each person sued either knew that his or her
statement was false or he or she recklessly disregarded a
substantial risk of that possibility. The inference of scienter
must be "powerful", "cogent", "strong in light of other
explanations" and "at least as compelling as any opposing inference
one could draw from the facts alleged."[11] If the PSLRA's exacting
requirements are not met, "the court shall…dismiss the complaint"
(emphasis added).[12]
Given these stringent requirements, in practice defendants often
challenge putative class actions at an early stage on a motion to
dismiss (similar to a strike out application in Australia) and they
are often successful in nipping frivolous suits in the bud where
the plaintiffs do not plead the who, what, where, when, and how of
the alleged fraud and the basis for concluding that the company's
officers and directors actually knew that a statement was untrue,
rather than events simply working out differently than planned for
whatever reason. In assessing the motion to dismiss, one looks to
see whether there is any cogent motive alleged, contemporaneous
documentation that contradicts the challenged public statements,
circumstantial evidence of scienter, insider sales, a restatement,
or a governmental investigation, for example.
Strategies from US class action experience
Given that the scienter requirements in Australia are new, and thus
do not have extensive precedent interpreting and fleshing them out,
it may be useful to refer to how the United States' similar
scienter standards work in practice. Some practical tips for
cutting off liability at early stages in the US include:
Scienter cannot be pleaded generally, and plaintiffs cannot get
past a motion to dismiss by lumping together the CEO, CFO, all
directors, and other officers. Instead, they must show that each
individual actually believed that his or her statement was false
when made.
A plaintiff cannot predicate a securities class action on fraud by
hindsight. Just because something did not come to pass -- such as
meeting a particular earnings target or completing a hoped for
acquisition -- does not necessarily mean that statements about that
intended future event were false when made.Plaintiffs must
demonstrate that there are contemporaneous documents or facts that
demonstrate falsity at the time of the statement.
Statements of one's opinion are particularly vulnerable to attack
on a motion to dismiss due to the difficulty of providing that an
opinion was not actually held.
Many statements of future intent are protected under the safe
harbour provisions as long as they are accompanied by sufficient
cautionary language.It is advisable then for directors and officers
to review carefully the cautionary language and ensure that it is
specific and updated to include new challenges as they develop.
A motion to dismiss may demonstrate that there is no actual
motivation to commit fraud, particularly where there are no inside
stock sales. In those instances where a corporate director or
officer has actually increased his or her stockholdings during the
relevant period, there is an inference that he or she was not
intending to commit fraud, as it would make no sense to increase
one's financial stake in a company if one knew that its actual
prospects were vastly worse than the market perceived. In that
scenario, one would sell stock in an attempt to profit off the
fraud.
Where there are stock sales, in the United States, officers often
employ a 10b5-1 plan to insulate such sales from attack as stock
sales in and of themselves do not establish motive, only ones that
are suspicious in amount or timing. Through the use of a plan that
governs when sales may be made and in what amount, one can protect
himself or herself.
Plaintiffs often include in an amended complaint allegations from
former employees (confidential witnesses) who claim that certain
directors or officers knew something was amiss. At the pleading
stage, any such allegations must be exacting and are often the
subject of attack.
Clean audit opinions from a respected auditing/accounting firm can
also bolster arguments that there was no blatant fraud about which
directors and officers should have been aware.
To view all formatting for this article (eg, tables, footnotes),
please access the original here. [GN]
Asbestos Litigation
ASBESTOS UPDATE: Allstate Corp Paid $29MM Asbestos Related Losses
-----------------------------------------------------------------
The Allstate Corporation has recorded a total gross payments of $29
million and $62 million for the second quarter and first six months
of 2021, respectively, according to the Company's Form 10-Q filing
with the U.S. Securities and Exchange Commission.
Payments for the second quarter and first six months of 2021
primarily related to settlement agreements reached with several
insureds on large claims, mainly asbestos related losses, where the
scope of coverages has been agreed upon. The claims associated with
these settlement agreements are expected to be substantially paid
out over the next several years as qualified claims are submitted
by these insureds. Reinsurance collections were $11 million and $24
million for the second quarter and first six months of 2021,
respectively.
A full-text copy of the Form 10-Q is available at
https://bit.ly/3zdwkFf
ASBESTOS UPDATE: AMETEK Defends Asbestos-Related Lawsuits
---------------------------------------------------------
AMETEK, Inc., including its subsidiaries, has been named as a
defendant in a number of asbestos-related lawsuits, according to
the Company's Form 10-Q filing with the U.S. Securities and
Exchange Commission.
The Company states, "Certain of these lawsuits relate to a business
which was acquired by the Company and do not involve products which
were manufactured or sold by the Company. In connection with these
lawsuits, the seller of such business has agreed to indemnify the
Company against these claims (the "Indemnified Claims"). The
Indemnified Claims have been tendered to, and are being defended
by, such seller. The seller has met its obligations, in all
respects, and the Company does not have any reason to believe such
party would fail to fulfill its obligations in the future. To date,
no judgments have been rendered against the Company as a result of
any asbestos-related lawsuit. The Company believes that it has good
and valid defenses to each of these claims and intends to defend
them vigorously."
A full-text copy of the Form 10-Q is available at
https://bit.ly/3AVdanF
ASBESTOS UPDATE: ArcelorMittal Has 324 Pending Exposure Claims
--------------------------------------------------------------
ArcelorMittal has reported a number of 324 claims outstanding for
asbestos exposure at December 31, 2020 as compared to 337 at
December 31, 2019, according to the Company's Form 6-K filing with
the U.S. Securities and Exchange Commission.
The Company states, "The range of amounts claimed for the year
ended December 31, 2020 was $35,000 to $745,000. The aggregate
costs and settlements for the year ended December 31, 2020 were
4.79, of which 0.2 represented legal fees and 4.59 represented
damages paid to the claimant. The aggregate costs and settlements
for the year ended December 31, 2019 were 7.77, of which 0.15
represented legal fees and 7.6 represented damages paid to the
claimant.
"In Belgium, there is an environmental provision of 247 of which
the most significant elements are legal site remediation
obligations linked to the closure of the primary installations at
ArcelorMittal Belgium (Liège). The provisions also concern the
external recovery and disposal of waste, residues or by-products
that cannot be recovered internally on the ArcelorMittal Gent and
Liège sites and the removal and disposal of asbestos-containing
material.
"ArcelorMittal France has an environmental provision that
principally relates to the remediation and improvement of storage
of secondary materials, the disposal of waste at different ponds
and landfills and an action plan for removing asbestos from the
installations and mandatory financial guarantees to cover risks of
major accident hazard or for gasholders and waste storage. Most of
the provision relates to the stocking areas at the Dunkirk site
that will need to be restored to comply with local law and to the
mothballing of the liquid phase in Florange, including study and
surveillance of soil and water to prevent environmental damage,
treatment and elimination of waste and financial guarantees
demanded by Public Authorities. The environmental provisions also
include treatment of slag dumps at Florange and Dunkirk sites as
well as removal and disposal of asbestos-containing material at the
Dunkirk and Mardyck sites.
"ArcelorMittal Italia has environmental provisions of 374, which
are classified as held for sale as of December 31, 2020.
"A provision of 158 relates to remediation activities to be carried
out in the site of Taranto derived from obligations on the previous
operator that have been transferred to ArcelorMittal Italia through
the environmental permit, the most significant elements being the
waterproofing of certain areas to confine historical pollution, the
removal of historical accumulation of process materials mainly
consisting of blast furnace ("BF") and basic oxygen furnace ("BOF")
dusts and sludges and scales, an action plan for the removal and
disposal of asbestos-containing materials present on site, the
dismantling of several installations no longer in operation, the
dredging of the discharge channel and disposal of the sludge
removed, the decontamination of high depth groundwater in the
primary yards area and the capping of an exhausted landfill."
A full-text copy of the Form 6-K is available at
https://bit.ly/3D0M40C
ASBESTOS UPDATE: Ashland Global Faces Personal Injury Claims
------------------------------------------------------------
Ashland Global Holdings Inc. is subject to liabilities from claims
alleging personal injury caused by exposure to asbestos, according
to the Company's Form 10-Q filing with the U.S. Securities and
Exchange Commission.
The Company states, "Such claims result primarily from
indemnification obligations undertaken in 1990 in connection with
the sale of Riley Stoker Corporation (Riley), a former subsidiary.
Although Riley was neither a producer nor a manufacturer of
asbestos, its industrial boilers contained some asbestos-containing
components provided by other companies.
"Hercules LLC (formerly Hercules Incorporated), an indirect
wholly-owned subsidiary of Ashland, is also subject to liabilities
from asbestos-related personal injury lawsuits involving claims
which typically arise from alleged exposure to asbestos fibers from
resin encapsulated pipe and tank products which were sold by one of
Hercules' former subsidiaries to a limited industrial market.
"Ashland and Hercules are also defendants in lawsuits alleging
exposure to asbestos at facilities formerly or presently owned or
operated by Ashland or Hercules."
A full-text copy of the Form 10-Q is available at
https://bit.ly/2W1zm0q
ASBESTOS UPDATE: Bausch Health Cos. Faces Mesothelioma Lawsuit
--------------------------------------------------------------
Bausch Health Companies Inc. and Bausch Health US were named in an
action brought by State of New Mexico ex rel. Hector H. Balderas,
Attorney General of New Mexico, in the County of Santa Fe New
Mexico First Judicial District Court (New Mexico ex rel. Balderas
v. Johnson & Johnson, et al., Civil Action No. D-101-CV-2020-00013,
filed on January 2, 2020), alleging consumer protection claims
against Johnson & Johnson and Johnson & Johnson Consumer Companies,
Inc., the Company and Bausch Health US related to Shower to
Shower(R) and its alleged causal link to mesothelioma and other
cancers, according to the Company's Form 10-Q filing with the U.S.
Securities and Exchange Commission.
In April 2020, Bausch Health US filed a motion to dismiss, which in
September 2020, the Court granted in part as to the New Mexico
Medicaid Fraud Act and New Mexico Fraud Against Taxpayers Act
claims and denied as to all other claims. The State of New Mexico
brings claims against all defendants under the New Mexico Unfair
Practices Act and other common law and equitable causes of action,
alleging defendants engaged in wrongful marketing, sale and
promotion of talcum powder products. The lawsuit seeks to recover
the cost of the talcum powder products as well as the cost of
treating asbestos-related cancers allegedly caused by those
products. Bausch Health US filed its Answer on November 16, 2020.
On December 30, 2020, Johnson & Johnson filed a Motion for Partial
Judgment on the Pleadings and on January 4, 2021, Bausch Health US
filed a joinder to that motion, which was denied on March 8, 2021.
The Company and Bausch Health US dispute the claims against them
and intend to defend each of these lawsuits vigorously.
A full-text copy of the Form 10-Q is available at
https://bit.ly/3y0b0RQ
ASBESTOS UPDATE: Carrier Global Defends Personal Injury Lawsuits
----------------------------------------------------------------
Carrier Global Corporation and its consolidated subsidiaries have
been named as defendants in lawsuits alleging personal injury as a
result of exposure to asbestos allegedly integrated into certain
Carrier products or business premises, according to the Company's
Form 10-Q filing with the U.S. Securities and Exchange Commission.
While the Company has never manufactured asbestos and no longer
incorporates it into any currently-manufactured products, certain
products that the Company no longer manufactures contained
components incorporating asbestos. A substantial majority of these
asbestos-related claims have been dismissed without payment or have
been covered in full or in part by insurance or other forms of
indemnity. Additional cases were litigated and settled without any
insurance reimbursement. The amounts involved in asbestos-related
claims were not material individually or in the aggregate in any
period.
A full-text copy of the Form 10-Q is available at
https://bit.ly/2W79Uqa
ASBESTOS UPDATE: CECO's Subsidiary Still Defends PI Lawsuits
------------------------------------------------------------
CECO Environmental Corp.'s subsidiary, Met-Pro Technologies LLC
("Met-Pro"), beginning in 2002, began to be named in
asbestos-related lawsuits filed against a large number of
industrial companies including, in particular, those in the pump
and fluid handling industries, according to the Company's Form 10-Q
filing with the U.S. Securities and Exchange Commission.
In management's opinion, the complaints typically have been vague,
general and speculative, alleging that Met-Pro, along with the
numerous other defendants, sold unidentified asbestos-containing
products and engaged in other related actions which caused injuries
(including death) and loss to the plaintiffs. Counsel has advised
that more recent cases typically allege more serious claims of
mesothelioma. The Company's insurers have hired attorneys who,
together with the Company, are vigorously defending these cases.
Many cases have been dismissed after the plaintiff fails to produce
evidence of exposure to Met-Pro's products. In those cases, where
evidence has been produced, the Company's experience has been that
the exposure levels are low and the Company's position has been
that its products were not a cause of death, injury or loss. The
Company has been dismissed from or settled a large number of these
cases. Cumulative settlement payments from 2002 through June 30,
2021 for cases involving asbestos-related claims were $3.5 million,
of which, together with all legal fees other than corporate counsel
expenses, $3.3 million has been paid by the Company's insurers. The
average cost per settled claim, excluding legal fees, was
approximately $34,000.
Based upon the most recent information available to the Company
regarding such claims, there were a total of 216 cases pending
against the Company as of June 30, 2021 (with Illinois, New York,
Pennsylvania and West Virginia having the largest number of cases),
as compared with 200 cases that were pending as of December 31,
2020. During the six-months ended June 30, 2021, 55 new cases were
filed against the Company, and the Company was dismissed from 31
cases and settled eight cases. Most of the pending cases have not
advanced beyond the early stages of discovery, although a number of
cases are on schedules leading to or scheduled for trial. The
Company believes that its insurance coverage is adequate for the
cases currently pending against the Company and for the foreseeable
future, assuming a continuation of the current volume, nature of
cases and settlement amounts. However, the Company has no control
over the number and nature of cases that are filed against it, nor
as to the financial health of its insurers or their position as to
coverage. The Company also presently believes that none of the
pending cases will have a material adverse impact upon the
Company's results of operations, liquidity or financial condition.
A full-text copy of the Form 10-Q is available at
https://bit.ly/3AQLyQB
ASBESTOS UPDATE: Chemours Co. Assumes 1,000 PI Suits at June 30
---------------------------------------------------------------
The Chemours Company, is an assignee to approximately 1,000 and
1,100 lawsuits pending against EID alleging personal injury from
exposure to asbestos at June 30, 2021 and December 31, 2020,
respectively, according to the Company's Form 10-Q filing with the
U.S. Securities and Exchange Commission.
The Company states, "In the Separation, EID assigned its asbestos
docket to Chemours. These cases are pending in state and federal
court in numerous jurisdictions in the U.S. and are individually
set for trial. A small number of cases are pending outside of the
U.S. Most of the actions were brought by contractors who worked at
sites between the 1950s and the 1990s. A small number of cases
involve similar allegations by EID employees or household members
of contractors or EID employees. Finally, certain lawsuits allege
personal injury as a result of exposure to EID products.
"At June 30, 2021 and December 31, 2020, Chemours had an accrual of
$34 related to these matters."
A full-text copy of the Form 10-Q is available at
https://bit.ly/3k7WZgf
ASBESTOS UPDATE: Colgate-Palmolive Faces 151 Cases at June 30
-------------------------------------------------------------
Colgate-Palmolive Company has been named as a defendant in civil
actions alleging that certain talcum powder products that were sold
prior to 1996 were contaminated with asbestos, according to the
Company's Form 10-Q filing with the U.S. Securities and Exchange
Commission.
The Company states, "Most of these actions involve a number of
co-defendants from a variety of different industries, including
suppliers of asbestos and manufacturers of products that, unlike
the Company's products, were designed to contain asbestos. As of
June 30, 2021, there were 151 individual cases pending against the
Company in state and federal courts throughout the United States,
as compared to 147 cases as of March 31, 2021 and 137 cases as of
December 31, 2020. During the three months ended June 30, 2021, 13
new cases were filed and nine cases were resolved by voluntary
dismissal or settlement. During the six months ended June 30, 2021,
27 new cases were filed and 13 cases were resolved by voluntary
dismissal, settlement or dismissal by the court. The values of the
settlements in the quarter and year-to-date period presented were
not material, either individually or in the aggregate, to the
Company’s results of operations in either such period.
"A significant portion of the Company's costs incurred in defending
and resolving these claims has been, and the Company believes a
portion of such costs will continue to be, covered by insurance
policies issued by several primary, excess and umbrella insurance
carriers, subject to deductibles, exclusions, retentions, policy
limits and insurance carrier insolvencies.
"While the Company and its legal counsel believe that these cases
are without merit and intend to challenge them vigorously, there
can be no assurances regarding the ultimate resolution of these
matters. With the exception of one case where the Company received
an adverse jury verdict in the second quarter of 2019 that the
Company has appealed, the range of reasonably possible losses in
excess of accrued liabilities disclosed above does not include any
amount relating to these cases because the amount of any possible
losses from such cases currently cannot be reasonably estimated."
A full-text copy of the Form 10-Q is available at
https://bit.ly/3iSdldn
ASBESTOS UPDATE: Columbus McKinnon Has $5.4MM Estimated Liability
-----------------------------------------------------------------
Columbus McKinnon Corporation has estimated its net
asbestos-related aggregate liability including related legal costs
to range between $5,400,000 and $9,700,000, net of insurance
recoveries, using actuarial parameters of continued claims for a
period of 37 years from June 30, 2021, according to the Company's
Form 10-Q filing with the U.S. Securities and Exchange Commission.
The Company has estimated its asbestos-related aggregate liability
that is probable and estimable, net of insurance recoveries, in
accordance with U.S. generally accepted accounting principles
approximates $7,056,000. The Company has reflected the liability
gross of insurance recoveries of $8,281,000 as a liability in the
Condensed Consolidated Balance Sheet as of June 30, 2021. The
recorded liability does not consider the impact of any potential
favorable federal legislation. This liability will fluctuate based
on the uncertainty in the number of future claims that will be
filed and the cost to resolve those claims, which may be influenced
by a number of factors, including the outcome of the ongoing
broad-based settlement negotiations, defensive strategies, and the
cost to resolve claims outside the broad-based settlement program.
Of this amount, management expects to incur asbestos liability
payments of approximately $2,000,000 over the next 12 months.
Because payment of the liability is likely to extend over many
years, management believes that the potential additional costs for
claims will not have a material effect on the financial condition
of the Company or its liquidity, although the effect of any future
liabilities recorded could be material to earnings in a future
period.
A share of the Company's previously incurred asbestos-related
expenses and future asbestos-related expenses are covered by
pre-existing insurance policies. The Company had been engaged in a
legal action against the insurance carriers for those policies to
recover past expenses and future costs incurred. The Company came
to an agreement with the insurance carriers to settle its case
against them for recovery of a portion of past costs and future
costs for asbestos-related legal defense costs. The agreement was
finalized during the quarter ended September 30, 2020. The terms of
the settlement require the carriers to pay gross defense costs
prior to retro-premiums of 65% for future asbestos-related defense
costs subject to an annual cap of $1,650,000 for claims covered by
the settlement. The reimbursement net of retro-premiums is
approximately 47% which resulted in a $1,830,000 increase to the
Company's asbestos liability during the second quarter of fiscal
2021.
In addition, the insurance carriers were required to reimburse the
Company for past defense costs through the date of the settlement
amounting to $3,006,000 which was paid during the second quarter of
fiscal 2021. The reimbursement for past cost was recorded net of a
contingent legal fee of $1,500,000 which was paid in the third
quarter of fiscal 2021. Further, the insurance carriers are
expected to cover 100% of indemnity costs related to all covered
cases. Estimates of the future cost sharing have been included in
the loss reserve calculation as of June 30, 2021 and March 31,
2021. The Company has recorded a receivable for the estimated
future cost sharing in Other assets in the Condensed Consolidated
Balance Sheet at June 30, 2021 in the amount of $8,281,000, which
offsets its asbestos reserves.
A full-text copy of the Form 10-Q is available at
https://bit.ly/3j0PGYu
ASBESTOS UPDATE: Crane Co. Has 29,788 Pending Claims at June 30
---------------------------------------------------------------
Crane Co., as of June 30, 2021, has been named as a defendant in
cases filed in numerous state and federal courts alleging injury or
death as a result of exposure to asbestos, according to the
Company's Form 10-Q filing with the U.S. Securities and Exchange
Commission.
The Company states, "Of the 29,788 pending claims as of June 30,
2021, approximately 18,000 claims were pending in New York of which
approximately 16,000 are non-malignancy claims that were filed over
15 years ago and have been inactive under New York court orders.
"We have tried several cases resulting in defense verdicts by the
jury or directed verdicts for the defense by the court. We further
have pursued appeals of certain adverse jury verdicts that have
resulted in reversals in favor of the defense. We have also tried
several other cases resulting in plaintiff verdicts which we paid
or settled after unsuccessful appeals.
"The gross settlement and defense costs incurred (before insurance
recoveries and tax effects) by us for the six months ended June 30,
2021 and 2020 totaled $21.3 million and $23.9 million,
respectively. In contrast to the recognition of settlement and
defense costs, which reflect the current level of activity in the
tort system, cash payments and receipts generally lag the tort
system activity by several months or more, and may show some
fluctuation from period to period. Cash payments of settlement
amounts are not made until all releases and other required
documentation are received by us, and reimbursements of both
settlement amounts and defense costs by insurers may be uneven due
to insurer payment practices, transitions from one insurance layer
to the next excess layer and the payment terms of certain
reimbursement agreements. Our total pre-tax payments for settlement
and defense costs, net of funds received from insurers, for the six
months ended June 30, 2021 and, 2020 totaled $20.2 million and
$19.2 million, respectively.
"The amounts shown for settlement and defense costs incurred, and
cash payments, are not necessarily indicative of future period
amounts, which may be higher or lower than those reported.
"Cumulatively through June 30, 2021, we have resolved (by
settlement or dismissal) approximately 142,000 claims. The related
settlement costs incurred by us and our insurance carriers is
approximately $692 million, for an average settlement cost per
resolved claim of approximately $4,900. The average settlement cost
per claim resolved during the years ended December 31, 2020, 2019
and 2018 was $13,900, $15,800, and $11,300, respectively. Because
claims are sometimes dismissed in large groups, the average cost
per resolved claim, as well as the number of open claims, can
fluctuate significantly from period to period. In addition to large
group dismissals, the nature of the disease and corresponding
settlement amounts for each claim resolved will also drive changes
from period to period in the average settlement cost per claim.
Accordingly, the average cost per resolved claim is not considered
in our periodic review of our estimated asbestos liability."
A full-text copy of the Form 10-Q is available at
https://bit.ly/3k4QPNZ
ASBESTOS UPDATE: Curtiss-Wright Faces Asbestos Exposure Claims
--------------------------------------------------------------
Curtiss-Wright Corporation has been named in a number of lawsuits
that allege injury from exposure to asbestos, according to the
Company's Form 10-Q filing with the U.S. Securities and Exchange
Commission.
The Company states, "To date, the Corporation has not been found
liable for or paid any material sum of money in settlement in any
asbestos-related case. The Corporation believes its minimal use of
asbestos in its past operations as well as its acquired businesses'
operations and the relatively non-friable condition of asbestos in
its historical products makes it unlikely that it will face
material liability in any asbestos litigation, whether individually
or in the aggregate. The Corporation maintains insurance coverage
and indemnification agreements for these potential liabilities and
believes adequate coverage exists to cover any unanticipated
asbestos liability."
A full-text copy of the Form 10-Q is available at
https://bit.ly/2VY1thz
ASBESTOS UPDATE: Diamond Offshore Faces Punitive Damages Claims
---------------------------------------------------------------
Diamond Offshore Drilling, Inc., is one of several unrelated
defendants in lawsuits filed in Louisiana state courts alleging
that defendants manufactured, distributed or utilized drilling mud
containing asbestos and, in our case, allowed such drilling mud to
have been utilized aboard our drilling rigs, according to the
Company's Form 10-Q filing with the U.S. Securities and Exchange
Commission.
The Company states, "The plaintiffs seek, among other things, an
award of unspecified compensatory and punitive damages. The
manufacture and use of asbestos-containing drilling mud had already
ceased before we acquired any of the drilling rigs addressed in
these lawsuits. We believe that we are not liable for the damages
asserted in the lawsuits pursuant to the terms of our 1989 asset
purchase agreement with Diamond M Corporation. We are unable to
estimate our potential exposure, if any, to these lawsuits at this
time but do not believe that our ultimate liability, if any,
resulting from this litigation will have a material effect on our
consolidated financial condition, results of operations or cash
flows."
A full-text copy of the Form 10-Q is available at
https://bit.ly/3mfHs0E
ASBESTOS UPDATE: Exelon Corp. Has $85MM Liabilities at June 30
--------------------------------------------------------------
Exelon Corporation, and Exelon Generation Company, LLC, at June 30,
2021 and December 31, 2020, had recorded estimated liabilities of
approximately $85 million and $89 million, respectively, in total
for asbestos-related bodily injury claims, according to the
Company's Form 10-Q filing with the U.S. Securities and Exchange
Commission.
The Company states, "As of June 30, 2021, approximately $21 million
of this amount related to 230 open claims presented to Generation,
while the remaining $64 million is for estimated future
asbestos-related bodily injury claims anticipated to arise through
2055, based on actuarial assumptions and analyses, which are
updated on an annual basis. On a quarterly basis, Generation
monitors actual experience against the number of forecasted claims
to be received and expected claim payments and evaluates whether
adjustments to the estimated liabilities are necessary.
"It is reasonably possible that additional exposure to estimated
future asbestos-related bodily injury claims in excess of the
amount accrued could have a material, unfavorable impact on
Exelon's and Generation's financial statements. However, management
cannot reasonably estimate a range of loss beyond the amounts
recorded."
A full-text copy of the Form 10-Q is available at
https://bit.ly/3k3ON0y
ASBESTOS UPDATE: Garrett Motion Agrees to Settle Honeywell's Claims
-------------------------------------------------------------------
Garrett Motion Inc., on January 11, 2021, has announced that it had
agreed to settle Honeywell's claims as part of the Settlement Plan
which was confirmed by the Bankruptcy Court and went effective on
the Effective Date, April 30, 2021, according to the Company's Form
10-Q filing with the U.S. Securities and Exchange Commission.
On December 18, 2020, Honeywell filed proofs of claim in the
Chapter 11 Cases, asserting that the Company owes at least $1.9
billion. The Bankruptcy Court was scheduled to estimate the amount
of Honeywell's claims in an estimation proceeding that was
scheduled to commence on February 1, and subsequently cancelled.
Under the Plan settlement, which is now binding and effective,
Honeywell received a $375 million cash payment as well as Series B
Preferred Stock payable in instalments of $35 million in 2022, and
$100 million annually from 2023-2030. The Company has the option
to prepay the Series B Preferred Stock in full at any time at a
call price equivalent to $584 million as of the Effective Date
(representing the present value of the instalments at a 7.25%
discount rate). The Company also has the option to make a partial
payment of the Series B Preferred Stock, reducing the present value
to $400 million, at any time within 18 months of the Effective
Date.
Pursuant to the Plan, on the Effective Date, the obligations of the
Debtors under each of the following agreements were cancelled and
the applicable agreements governing such obligations were
terminated: (a) that certain Indemnification Guarantee Agreement,
dated September 27, 2018, by and among Honeywell ASASCO 2 Inc.,
Garrett ASASCO Inc., and the other Guarantors party thereto, as may
be amended, restated, supplemented or otherwise modified from time
to time prior to the Effective Date (the "Honeywell Indemnification
Guarantee Agreement"); (b) (i) that certain Indemnification and
Reimbursement Agreement, dated September 12, 2018 (as amended,
restated, amended and restated, supplemented, or otherwise modified
from time to time), by and among Honeywell ASASCO Inc., Honeywell
ASASCO 2 Inc. and Honeywell International Inc.; and (ii) that
certain Contribution and Assignment Agreement, dated September 14,
2018 (as amended, restated, amended and restated, supplemented, or
otherwise modified from time to time), by and between Honeywell
ASASCO Inc. and Garrett ASASCO Inc., as each may be amended,
restated, supplemented or otherwise modified from time to time
prior to the Effective Date (collectively, the "Honeywell Indemnity
Agreement"); (c) that certain Tax Matters Agreement, dated
September 12, 2018, by and among Honeywell International Inc., GMI,
Honeywell ASASCO Inc. and Honeywell ASASCO 2 Inc., as may be
amended, supplemented or otherwise modified from time to time (the
"Tax Matters Agreement" and, together with the Honeywell
Indemnification Guarantee Agreement and the Honeywell Indemnity
Agreement, the "Honeywell Agreements").
A full-text copy of the Form 10-Q is available at
https://bit.ly/37SKcZ9
ASBESTOS UPDATE: Harsco Corp Has 17,200 Pending Claims at June 30
-----------------------------------------------------------------
Harsco Corporation, at June 30, 2021, has been named as a defendant
of approximately 17,200 pending asbestos personal injury actions,
according to the Company's Form 10-Q filing with the U.S.
Securities and Exchange Commission.
The Company states, "Of those actions, approximately 16,610 were
filed in the New York Supreme Court (New York County),
approximately 120 were filed in other New York State Supreme Court
Counties and approximately 470 were filed in courts located in
other states.
"The Company believes that the claims against it are without merit.
The Company has never been a producer, manufacturer or processor of
asbestos fibers. Any asbestos-containing part of a Company product
used in the past was purchased from a supplier and the asbestos
encapsulated in other materials such that airborne exposure, if it
occurred, was not harmful and is not associated with the types of
injuries alleged in the pending actions.
"The complaints in most of those actions generally follow a form
that contains a standard damages demand of $20 million or $25
million, regardless of the individual plaintiff's alleged medical
condition, and without identifying any specific Company product.
"At June 30, 2021 approximately 16,550 of the actions filed in New
York Supreme Court (New York County) were on the Deferred/Inactive
Docket created by the court in December 2002 for all pending and
future asbestos actions filed by persons who cannot demonstrate
that they have a malignant condition or discernible physical
impairment. The remaining
approximately 60 cases in New York County are pending on the Active
or In Extremis Docket created for plaintiffs who can demonstrate a
malignant condition or physical impairment.
"The Company has liability insurance coverage under various primary
and excess policies that the Company believes will be available, if
necessary, to substantially cover any liability that might
ultimately be incurred in the asbestos actions referred to above.
The costs and expenses of the asbestos actions are being paid by
the Company's insurers.
In view of the persistence of asbestos litigation in the U.S., the
Company expects to continue to receive additional claims in the
future. The Company intends to continue its practice of vigorously
defending these claims and cases. At June 30, 2021 the Company has
obtained dismissal in approximately 28,330 cases by stipulation or
summary judgment prior to trial.
"It is not possible to predict the ultimate outcome of
asbestos-related actions in the U.S. due to the unpredictable
nature of this litigation, and no loss provision has been recorded
in the Company's condensed consolidated financial statements
because a loss contingency is not deemed probable or estimable.
Despite this uncertainty, and although results of operations and
cash flows for a given period could be adversely affected by
asbestos-related actions, the Company does not expect that any
costs that are reasonably possible to be incurred by the Company in
connection with asbestos litigation would have a material adverse
effect on the Company's financial condition, results of operations
or cash flows."
A full-text copy of the Form 10-Q is available at
https://bit.ly/2W04eim
ASBESTOS UPDATE: Ingersoll Rand Has $127.5MM Litigation Reserve
---------------------------------------------------------------
Ingersoll Rand Inc. has a total litigation reserve of $127.5
million and $131.4 million as of June 30, 2021 and December 31,
2020, respectively, with regards to potential liability arising
from the Company's asbestos-related litigation, according to the
Company's Form 10-Q filing with the U.S. Securities and Exchange
Commission.
The Company believes that the pending and future asbestos and
silica-related lawsuits are not likely to, in the aggregate, have a
material adverse effect on its consolidated financial position,
results of operations or liquidity. Asbestos related defense costs
are excluded from the asbestos claims liability and are recorded
separately as services are incurred. In the event of unexpected
future developments, it is possible that the ultimate resolution of
these matters may be material to the Company's consolidated
financial position, results of operation or liquidity.
"The Company has entered into a series of agreements with certain
of its or its predecessors' legacy insurers and certain potential
indemnitors to secure insurance coverage and/or reimbursement for
the costs associated with the asbestos and silica-related lawsuits
filed against the Company. The Company has an insurance recovery
receivable for probable asbestos related recoveries of
approximately $132.1 million and $132.1 million as of June 30, 2021
and December 31, 2020, respectively. The amounts recorded by the
Company for asbestos-related liabilities and insurance recoveries
are based on currently available information and assumptions that
the Company believes are reasonable based on an evaluation of
relevant factors. The actual liabilities or insurance recoveries
could be higher or lower than those recorded if actual results vary
significantly from the assumptions.
A full-text copy of the Form 10-Q is available at
https://bit.ly/3CZHa3F
ASBESTOS UPDATE: International Paper Records $112MM Claims
----------------------------------------------------------
International Paper Company has been named as a defendant in
various asbestos-related personal injury litigation, in both state
and federal court, primarily in relation to the prior operations of
certain companies previously acquired by the Company, according to
the Company's Form 10-Q filing with the U.S. Securities and
Exchange Commission.
The Company states, "As of June 30, 2021, the Company's total
recorded liability with respect to pending and future
asbestos-related claims was $112 million, net of estimated
insurance recoveries. While it is reasonably possible that the
Company may incur losses in excess of its recorded liability with
respect to asbestos-related matters, we do not believe additional
material losses are probable."
A full-text copy of the Form 10-Q is available at
https://bit.ly/3CTed9P
ASBESTOS UPDATE: Johnson Controls Still Defends PI Lawsuits
-----------------------------------------------------------
Johnson Controls International plc and certain of its subsidiaries,
along with numerous other third parties, are named as defendants in
personal injury lawsuits based on alleged exposure to asbestos
containing materials, according to the Company's Form 10-Q filing
with the U.S. Securities and Exchange Commission.
The Company states, "These cases have typically involved product
liability claims based primarily on allegations of manufacture,
sale or distribution of industrial products that either contained
asbestos or were used with asbestos containing components.
"As of June 30, 2021, the Company's estimated asbestos-related net
liability recorded on a discounted basis within the Company's
consolidated statements of financial position was $78 million. The
net liability within the consolidated statements of financial
position was comprised of a liability for pending and future claims
and related defense costs of $466 million, of which $49 million was
recorded in other current liabilities and $417 million was recorded
in other noncurrent liabilities. The Company also maintained
separate cash, investments and receivables related to insurance
recoveries within the consolidated statements of financial position
of $388 million, of which $19 million was recorded in other current
assets, and $369 million was recorded in other noncurrent assets.
Assets included $7 million of cash and $320 million of investments,
which have all been designated as restricted. In connection with
the recognition of liabilities for asbestos-related matters, the
Company records asbestos-related insurance recoveries that are
probable; the amount of such recoveries recorded at June 30, 2021
was $61 million. As of September 30, 2020, the Company's estimated
asbestos-related net liability recorded on a discounted basis
within the Company's consolidated statements of financial position
was $115 million. The net liability within the consolidated
statements of financial position was comprised of a liability for
pending and future claims and related defense costs of $483
million, of which $49 million was recorded in other current
liabilities and $434 million was recorded in other noncurrent
liabilities. The Company also maintained separate cash, investments
and receivables related to insurance recoveries within the
consolidated statements of financial position of $368 million, of
which $39 million was recorded in other current assets, and $329
million was recorded in other noncurrent assets. Assets included $9
million of cash and $291 million of investments, which have all
been designated as restricted. In connection with the recognition
of liabilities for asbestos-related matters, the Company records
asbestos-related insurance recoveries that are probable; the amount
of such recoveries recorded at September 30, 2020 was $68 million.
"The Company's estimate of the liability and corresponding
insurance recovery for pending and future claims and defense costs
is based on the Company's historical claim experience, and
estimates of the number and resolution cost of potential future
claims that may be filed and is discounted to present value from
2068 (which is the Company's reasonable best estimate of the
actuarially determined time period through which asbestos-related
claims will be filed against Company affiliates). Asbestos-related
defense costs are included in the asbestos liability. The Company's
legal strategy for resolving claims also impacts these estimates.
The Company considers various trends and developments in evaluating
the period of time (the look-back period) over which historical
claim and settlement experience is used to estimate and value
claims reasonably projected to be made through 2068. At least
annually, the Company assesses the sufficiency of its estimated
liability for pending and future claims and defense costs by
evaluating actual experience regarding claims filed, settled and
dismissed, and amounts paid in settlements. In addition to claims
and settlement experience, the Company considers additional
quantitative and qualitative factors such as changes in
legislation, the legal environment, and the Company's defense
strategy. The Company also evaluates the recoverability of its
insurance receivable on an annual basis. The Company evaluates all
of these factors and determines whether a change in the estimate of
its liability for pending and future claims and defense costs or
insurance receivable is warranted.
"The amounts recorded by the Company for asbestos-related
liabilities and insurance-related assets are based on the Company's
strategies for resolving its asbestos claims, currently available
information, and a number of estimates and assumptions. Key
variables and assumptions include the number and type of new claims
that are filed each year, the average cost of resolution of claims,
the identity of defendants, the resolution of coverage issues with
insurance carriers, amount of insurance, and the solvency risk with
respect to the Company's insurance carriers. Many of these factors
are closely linked, such that a change in one variable or
assumption will impact one or more of the others, and no single
variable or assumption predominately influences the determination
of the Company's asbestos-related liabilities and insurance-related
assets. Furthermore, predictions with respect to these variables
are subject to greater uncertainty in the later portion of the
projection period. Other factors that may affect the Company's
liability and cash payments for asbestos-related matters include
uncertainties surrounding the litigation process from jurisdiction
to jurisdiction and from case to case, reforms of state or federal
tort legislation and the applicability of insurance policies among
subsidiaries. As a result, actual liabilities or insurance
recoveries could be significantly higher or lower than those
recorded if assumptions used in the Company's calculations vary
significantly from actual results."
A full-text copy of the Form 10-Q is available at
https://bit.ly/3z05XlJ
ASBESTOS UPDATE: Manitex Intl. Defends Product Liability Suits
--------------------------------------------------------------
Manitex International, Inc. has been named as a defendant in
several multi-defendant asbestos related product liability
lawsuits, according to the Company's Form 10-Q filing with the U.S.
Securities and Exchange Commission.
The Company states, "In certain instances, the Company is
indemnified by a former owner of the product line in question. In
the remaining cases the plaintiff has, to date, not been able to
establish any exposure by the plaintiff to the Company's products.
The Company is uninsured with respect to these claims but believes
that it will not incur any material liability with respect to these
claims.
"For claims originated in 2020, the Company changed its insurance
coverage for worker's compensation and no longer has a deductible
obligation. The Company is fully insured for any amount on any
individual claim that exceeds the deductible and for any additional
amounts of all claims once the aggregate is reached. The Company
currently has several workers' compensation claims related to
injuries that occurred after December 31, 2011 and therefore are
subject to a deductible. The Company does not believe that the
contingencies associated with these workers' compensation claims in
aggregate will have a material adverse effect on the Company.
"On May 5, 2011, the Company entered into two separate settlement
agreements with two plaintiffs. As of June 30, 2021, the Company
has a remaining obligation under the agreements to pay the
plaintiffs an aggregate of $950 without interest in 10 annual
installments of $95 on or before May 22 of each year. The Company
has recorded a liability for the net present value of the
liability. The difference between the net present value and the
total payment will be charged to interest expense over the payment
period.
"When it is probable that a loss has been incurred and possible to
make a reasonable estimate of the Company's liability with respect
to such matters, a provision is recorded for the amount of such
estimate to estimate the amount within the range that is most
likely to occur. Certain cases are at a preliminary stage, and it
is not possible to estimate the amount or timing of any cost to the
Company. However, the Company does not believe that these
contingencies, in the aggregate, will have a material adverse
effect on the Company."
A full-text copy of the Form 10-Q is available at
https://bit.ly/3sqz3se
ASBESTOS UPDATE: Meritor Defends 600 Pending Active Claims
----------------------------------------------------------
Meritor, Inc.'s predecessor ArvinMeritor, Inc. ("AM") along with
many other companies, has been named as a defendant in lawsuits
alleging personal injury as a result of exposure to asbestos used
in certain components of Rockwell products many years ago,
according to the Company's Form 10-Q filing with the U.S.
Securities and Exchange Commission.
The Company states, "Liability for these claims was transferred at
the time of the spin-off of the automotive business from Rockwell
in 1997. There were approximately 600 and 1,200 pending active
asbestos claims in lawsuits that name AM, together with many other
companies, as defendants as of June 30, 2021 and September 30,
2020, respectively. In March 2021, AM entered into a tolling
agreement with an asbestos plaintiff's law firm. Under the terms of
this agreement, AM agreed to toll the statute of limitations from
expiring on asbestos claims in exchange for the plaintiff's law
firm agreeing not to raise a claim until there is product
identification linking AM. The plaintiff's law firm also agreed to
dismiss pending active claims for which product identification was
not yet determined. There were approximately 600 claims dismissed
as a result of this tolling agreement in the third fiscal quarter
of fiscal year 2021. According to the terms of the tolling
agreement, if the plaintiff's law firm subsequently links AM's
product to the plaintiff, they will refile a claim against AM.
"A significant portion of the claims do not identify any Rockwell
products or specify which of the claimants, if any, were exposed to
asbestos attributable to Rockwell products, and past experience has
shown that the vast majority of the claimants will likely never
identify any of Rockwell products. Historically, AM has been
dismissed from the vast majority of similar claims filed in the
past with no payment to claimants. For those claimants who do show
that they worked with Rockwell products, management nevertheless
believes it has meritorious defenses, in substantial part due to
the integrity of the products involved and the lack of any
impairing medical condition on the part of many claimants."
A full-text copy of the Form 10-Q is available at
https://bit.ly/3meNv5y
ASBESTOS UPDATE: MRC Global Faces Lawsuits Involving 1,152 Claims
-----------------------------------------------------------------
MRC Global Inc., as of June 30, 2021, is named a defendant in
approximately 586 lawsuits involving approximately 1,152 claims,
according to the Company's Form 10-Q filing with the U.S.
Securities and Exchange Commission.
The Company states, "We are one of many defendants in lawsuits that
plaintiffs have brought seeking damages for personal injuries that
exposure to asbestos allegedly caused. Plaintiffs and their family
members have brought these lawsuits against a large volume of
defendant entities as a result of the defendants' manufacture,
distribution, supply or other involvement with asbestos, asbestos
containing-products or equipment or activities that allegedly
caused plaintiffs to be exposed to asbestos. These plaintiffs
typically assert exposure to asbestos as a consequence of
third-party manufactured products that our MRC Global (US) Inc.
subsidiary purportedly distributed. No asbestos lawsuit has
resulted in a judgment against us to date, with a majority being
settled, dismissed or otherwise resolved. Applicable third-party
insurance has substantially covered these claims, and insurance
should continue to cover a substantial majority of existing and
anticipated future claims. Accordingly, we have recorded a
liability for our estimate of the most likely settlement of
asserted claims and a related receivable from insurers for our
estimated recovery, to the extent we believe that the amounts of
recovery are probable. It is not possible to predict the outcome of
these claims and proceedings. However, in our opinion, the
likelihood that the ultimate disposition of any of these claims and
legal proceedings will have a material adverse effect on our
consolidated financial statements is remote."
A full-text copy of the Form 10-Q is available at
https://bit.ly/2Usv7KR
ASBESTOS UPDATE: MSA LLC Faces 1,610 Cumulative Trauma Lawsuits
---------------------------------------------------------------
MSA Safety Incorporated's subsidiary, Mine Safety Appliances
Company, LLC ("MSA LLC") was named as a defendant in 1,610
cumulative trauma lawsuits comprised of 3,942 claims at June 30,
2021, according to the Company's Form 10-Q filing with the U.S.
Securities and Exchange Commission.
The Company states, "Cumulative trauma product liability claims
involve exposures to harmful substances (e.g., silica, asbestos and
coal dust) that occurred years ago and may have developed over long
periods of time into diseases such as silicosis, asbestosis,
mesothelioma or coal worker's pneumoconiosis. The products at issue
were manufactured many years ago and are not currently offered by
MSA LLC. A reserve has been established with respect to estimated
amounts for cumulative trauma product liability claims currently
asserted and incurred but not reported ("IBNR") cumulative trauma
product liability claims. Because our cumulative trauma product
liability risk is subject to inherent uncertainties, including
unfavorable trial rulings or developments, an increase in newly
filed claims, or more aggressive settlement demands, and since MSA
LLC is largely self-insured, there can be no certainty that MSA LLC
may not ultimately incur losses in excess of presently recorded
liabilities. These losses could have a material adverse effect on
our business, operating results, financial condition and
liquidity.
"We will adjust the reserve from time to time based on whether the
actual numbers, types and settlement values of claims asserted
differ from current projections and estimates or there are
significant changes in the facts underlying the assumptions used in
establishing the reserve. Each of these factors may increase or
decrease significantly within an individual period depending on,
among other things, the timing of claims filings or settlements, or
litigation outcomes during a particular period that are especially
favorable or unfavorable to MSA LLC. We accordingly consider MSA
LLC's claims experience over multiple periods and/or whether there
are changes in MSA LLC's claims experience and trends that are
likely to continue for a significant time into the future in
determining whether to make an adjustment to the reserve, rather
than evaluating such factors solely in the short term. Any future
adjustments to the reserve may be material and could materially
impact future periods in which the reserve is adjusted.
"In the normal course of business, MSA LLC makes payments to settle
these types of cumulative trauma product liability claims and for
related defense costs, and records receivables for the amounts
believed to be recoverable under insurance. MSA LLC has recorded
insurance receivables totaling $104.1 million and notes receivables
of $53.0 million at June 30, 2021. Since MSA LLC is now largely
self-insured for cumulative trauma claims, additional amounts
recorded as insurance receivables will be limited and based on
calculating the amounts to be reimbursed pursuant to negotiated
Coverage-in-Place Agreements. Various factors could affect the
timing and amount of recovery of the insurance receivables,
including assumptions regarding claims composition (which are
relevant to calculating reimbursement under the terms of certain
Coverage-In-Place Agreements) and the extent to which the issuing
insurers may become insolvent in the future."
A full-text copy of the Form 10-Q is available at
https://bit.ly/37V6xFD
ASBESTOS UPDATE: OfficeMax Retains Liability for Asbestos Claims
----------------------------------------------------------------
The ODP Corporation's wholly owned subsidiary, OfficeMax, has
agreed to retain responsibility for all pending or threatened
proceedings and future proceedings alleging asbestos-related
injuries arising out of the operation of the paper and forest
products assets prior to the closing of the sale, according to the
Company's Form 10-Q filing with the U.S. Securities and Exchange
Commission.
OfficeMax is named as a defendant in a number of lawsuits, claims,
and proceedings arising out of the operation of certain paper and
forest products assets prior to those assets being sold in 2004,
for which OfficeMax agreed to retain responsibility. The Company
has made provision for losses with respect to the pending
proceedings. Additionally, as of June 26, 2021, the Company has
made provision for environmental liabilities with respect to
certain sites where hazardous substances or other contaminants are
or may be located. For these liabilities, the Company's estimated
range of reasonably possible losses was approximately $15 million
to $25 million. The Company regularly monitors its estimated
exposure to these liabilities. As additional information becomes
known, these estimates may change, however, the Company does not
believe any of these OfficeMax retained proceedings are material to
the Company's financial position, results of operations or cash
flows.
A full-text copy of the Form 10-Q is available at
https://bit.ly/3gedgiw
ASBESTOS UPDATE: Park-Ohio Holdings Defends 125 PI Cases
--------------------------------------------------------
Park-Ohio Holdings Corp. is a co-defendant in approximately 125
cases asserting claims on behalf of approximately 229 plaintiffs
alleging personal injury as a result of exposure to asbestos,
according to the Company's Form 10-Q filing with the U.S.
Securities and Exchange Commission.
The Company states, "These asbestos cases generally relate to
production and sale of asbestos-containing products and allege
various theories of liability, including negligence, gross
negligence and strict liability, and seek compensatory and, in some
cases, punitive damages.
"In every asbestos case in which we are named as a party, the
complaints are filed against multiple named defendants. In
substantially all of the asbestos cases, the plaintiffs either
claim damages in excess of a specified amount, typically a minimum
amount sufficient to establish jurisdiction of the court in which
the case was filed (jurisdictional minimums generally range from
$25,000 to $75,000), or do not specify the monetary damages sought.
To the extent that any specific amount of damages is sought, the
amount applies to claims against all named defendants.
"There are four asbestos cases, involving 20 plaintiffs, that plead
specified damages against named defendants. In each of the four
cases, the plaintiff is seeking compensatory and punitive damages
based on a variety of potentially alternative causes of action. In
two cases, the plaintiff has alleged three counts at $3.0 million
compensatory and punitive damages each; one count at $3.0 million
compensatory and $1.0 million punitive damages; one count at $1.0
million. In the third case, the plaintiff has alleged compensatory
and punitive damages, each in the amount of $20.0 million, for
three separate causes of action, and $5.0 million compensatory
damages for the fifth cause of action. In the fourth case, the
plaintiff has alleged compensatory and punitive damages, each in
the amount of $10.0 million, for ten separate causes of action.
"Historically, we have been dismissed from asbestos cases on the
basis that the plaintiff incorrectly sued one of our subsidiaries
or because the plaintiff failed to identify any asbestos-containing
product manufactured or sold by us or our subsidiaries. We intend
to vigorously defend these asbestos cases, and believe we will
continue to be successful in being dismissed from such cases.
However, it is not possible to predict the ultimate outcome of
asbestos-related lawsuits, claims and proceedings due to the
unpredictable nature of personal injury litigation. Despite this
uncertainty, and although our results of operations and cash flows
for a particular period could be adversely affected by
asbestos-related lawsuits, claims and proceedings, management
believes that the ultimate resolution of these matters will not
have a material adverse effect on our financial condition,
liquidity or results of operations. Among the factors management
considered in reaching this conclusion were: (a) our historical
success in being dismissed from these types of lawsuits on the
bases mentioned above; (b) many cases have been improperly filed
against one of our subsidiaries; (c) in many cases the plaintiffs
have been unable to establish any causal relationship to us or our
products or premises; (d) in many cases, the plaintiffs have been
unable to demonstrate that they have suffered any identifiable
injury or compensable loss at all or that any injuries that they
have incurred did in fact result from alleged exposure to asbestos;
and (e) the complaints assert claims against multiple defendants
and, in most cases, the damages alleged are not attributed to
individual defendants. Additionally, we do not believe that the
amounts claimed in any of the asbestos cases are meaningful
indicators of our potential exposure because the amounts claimed
typically bear no relation to the extent of the plaintiff's injury,
if any.
"Our cost of defending these lawsuits has not been material to date
and, based upon available information, our management does not
expect its future costs for asbestos-related lawsuits to have a
material adverse effect on our results of operations, liquidity or
financial position."
A full-text copy of the Form 10-Q is available at
https://bit.ly/37Uoi83
ASBESTOS UPDATE: Rogers Corp. Defends Multiple PI Lawsuits
----------------------------------------------------------
Rogers Corporation, like many other industrial companies, have been
named as a defendant in a number of lawsuits filed in courts across
the country by persons alleging personal injury from exposure to
products containing asbestos, according to the Company's Form 10-Q
filing with the U.S. Securities and Exchange Commission.
The Company states, "We have never mined, milled, manufactured or
marketed asbestos; rather, we made and provided to industrial users
a limited number of products that contained encapsulated asbestos,
but we stopped manufacturing these products in the late 1980s. Most
of the claims filed against us involve numerous defendants,
sometimes as many as several hundred.
"For the six months ended June 30, 2021, 71 claims were dismissed
and 6 claims were settled. Settlements totaled approximately $0.5
million for the six months ended June 30, 2021.
"To date, the indemnity and defense costs of our asbestos-related
product liability litigation have been substantially covered by
insurance. Although we have exhausted coverage under some of our
insurance policies, we believe that we have applicable primary,
excess and/or umbrella coverage for claims arising with respect to
most of the years during which we manufactured and marketed
asbestos-containing products. In addition, we have entered into a
cost sharing agreement with most of our primary, excess and
umbrella insurance carriers to facilitate the ongoing
administration and payment of claims covered by the carriers. The
cost sharing agreement may be terminated by any party, but will
continue until a party elects to terminate it. As of the filing
date for this report, the agreement has not been terminated, and no
carrier had informed us it intended to terminate the agreement. We
expect to continue to exhaust individual primary, excess and
umbrella coverages over time, and there is no assurance that such
exhaustion will not accelerate due to additional claims, damages
and settlements or that coverage will be available as expected. We
are responsible for uninsured indemnity and defense costs, and we
incurred an immaterial amount of expenses for each of the three-
and six-month periods ended June 30, 2021 and 2020, respectively,
related to such costs."
A full-text copy of the Form 10-Q is available at
https://bit.ly/3k3utMz
ASBESTOS UPDATE: Transocean Ltd.'s Subsidiary Faces 281 PI Suits
----------------------------------------------------------------
Transocean Ltd.'s subsidiary, as of June 30, 2021, was a defendant
in approximately 281 lawsuits with a corresponding number of
plaintiffs, according to the Company's Form 10-Q filing with the
U.S. Securities and Exchange Commission.
The Company states, "One of our subsidiaries has been named as a
defendant, along with numerous other companies, in lawsuits arising
out of the subsidiary's manufacture and sale of heat exchangers,
and involvement in the construction and refurbishment of major
industrial complexes alleging bodily injury or personal injury as a
result of exposure to asbestos. For many of these lawsuits, we
have not been provided sufficient information from the plaintiffs
to determine whether all or some of the plaintiffs have claims
against the subsidiary, the basis of any such claims, or the nature
of their alleged injuries. The operating assets of the subsidiary
were sold in 1989. In September 2018, the subsidiary and certain
insurers agreed to a settlement of outstanding disputes that
provided the subsidiary with cash and an annuity. Together with a
coverage-in-place agreement with certain insurers and additional
coverage issued by other insurers, we believe the subsidiary has
sufficient resources to respond to both the current lawsuits as
well as future lawsuits of a similar nature. While we cannot
predict or provide assurance as to the outcome of these matters, we
do not expect the ultimate liability, if any, resulting from these
claims to have a material adverse effect on our condensed
consolidated statement of financial position, results of operations
or cash flows."
A full-text copy of the Form 10-Q is available at
https://bit.ly/3gg8LUu
ASBESTOS UPDATE: TriMas Defends 374 Pending PI Cases at June 30
---------------------------------------------------------------
TriMas Corporation, as of June 30, 2021, was a party to 374 pending
cases involving an aggregate of 4,725 claimants primarily alleging
personal injury from exposure to asbestos containing materials
formerly used in gaskets (both encapsulated and otherwise)
manufactured or distributed by its former Lamons division and
certain other related subsidiaries for use primarily in the
petrochemical, refining and exploration industries, according to
the Company's Form 10-Q filing with the U.S. Securities and
Exchange Commission.
In addition, the Company acquired various companies to distribute
its products that had distributed gaskets of other manufacturers
prior to acquisition. The Company believes that many of its pending
cases relate to locations at which none of its gaskets were
distributed or used.
The Company may be subjected to significant additional
asbestos-related claims in the future, and will aggressively defend
or reasonably resolve, as appropriate. The cost of settling cases
in which product identification can be made may increase, and the
Company may be subjected to further claims in respect of the former
activities of its acquired gasket distributors. The cost of claims
varies as claims may be initially made in some jurisdictions
without specifying the amount sought or by simply stating the
requisite or maximum permissible monetary relief, and may be
amended to alter the amount sought. The large majority of claims do
not specify the amount sought. Of the 4,725 claims pending at June
30, 2021, 33 set forth specific amounts of damages (other than
those stating the statutory minimum or maximum). At June 30, 2021,
of the 33 claims that set forth specific amounts, there was one
claim seeking more than $5 million for punitive damages.
Relatively few claims have reached the discovery stage and even
fewer claims have gone past the discovery stage. Total settlement
costs (exclusive of defense costs) for all such cases, some of
which were filed over 25 years ago, have been approximately $10.3
million. All relief sought in the asbestos cases is monetary in
nature. Based on the settlements made to date and the number of
claims dismissed or withdrawn for lack of product identification,
the Company believes that the relief sought (when specified) does
not bear a reasonable relationship to its potential liability.
There has been significant volatility in the historical number of
claim filings and costs to defend, with previous claim counts and
spend levels much higher than current levels. Management believes
this volatility was associated more with tort reform, plaintiff
practices and state-specific legal dockets than the Company’s
underlying asbestos-related exposures. From 2017 to 2019, however,
the number of new claim filings, and costs to defend, had become
much more consistent, ranging between 143 to 173 new claims per
year and total defense costs ranging between $2.2 million and $2.3
million.
The higher degree of consistency in census data and spend levels,
as well as lower claim activity levels and an evolving defense
strategy, has allowed the Company to more effectively and
efficiently manage claims, making process or local counsel
arrangement improvements where possible. Given the consistency of
activity over a multi-year period, the Company believed a trend may
have formed where it could be possible to reasonably estimate its
future cash exposure for all asbestos-related activity with an
adequate level of precision. As such, the Company commissioned an
actuary to help evaluate the nature and predictability of its
asbestos-related costs, and provide an actuarial range of estimates
of future exposures. Based upon its review of the actuarial study,
which was completed in June 2020 using data as of December 31, 2019
and which projected spend levels through a terminal year of 2064,
the Company affirmed its belief that it now has the ability to
reasonably estimate its future asbestos-related exposures for
pending as well as unknown future claims.
During the second quarter 2020, the Company elected to change its
method of accounting for asbestos-related defense costs from
accruing for probable and reasonably estimable defense costs
associated with known claims expected to settle to accrue for all
future defense costs for both known and unknown claims, which the
Company now believes are reasonably estimable. The Company believes
this change is preferable, as asbestos-related defense costs
represent expenditures related to legacy activities that do not
contribute to current or future revenue generating activities, and
recording an estimate of the full liability for asbestos-related
costs, where estimable with reasonable precision, provides a more
complete assessment of the liability associated with resolving
asbestos-related claims. This accounting change was reflected as a
change in accounting estimate effected by a change in accounting
principle.
Following the change in accounting estimate, the Company's
liability for asbestos-related claims will be based on a study from
the Company's third-party actuary, the Company's review of the
study, as well as the Company's own review of asbestos claims and
claim resolution activity. The study from the Company's actuary,
based on data as of December 31, 2019, provided for a range of
possible future liability from $31.5 million to $43.3 million. The
Company did not believe any amount within the range of potential
outcomes represented a better estimate than another given the many
factors and assumptions inherent in the projections, and therefore
recorded a non-cash, pre-tax charge of $23.4 million in second
quarter 2020 to increase the liability estimate to $31.5 million,
at the low-end of the range. This charge is included in selling,
general and administrative expenses in the accompanying
consolidated statement of operations. As of June 30, 2021, the
Company's total asbestos-related liability is $27.3 million, and is
included in accrued liabilities and other long-term liabilities,
respectively, in the accompanying consolidated balance sheet.
The Company's primary insurance, which covered approximately 40% of
historical costs related to settlement and defense of asbestos
litigation, expired in November 2018, upon which the Company became
solely responsible for defense costs and indemnity payments. The
Company is party to a coverage-in-place agreement (entered into in
2006) with its first level excess carriers regarding the coverage
to be provided to the Company for asbestos-related claims. The
coverage-in-place agreement makes asbestos defense costs and
indemnity insurance coverage available to the Company that might
otherwise be disputed by the carriers and provides a methodology
for the administration of such expenses. The Company will continue
to be solely responsible for defense costs and indemnity payments
prior to the commencement of coverage under this agreement, the
duration of which would be subject to the scope of damage awards
and settlements paid. Based upon the Company's review of the
actuarial study, the Company does not believe it is probable that
it will reach the threshold of qualified future settlements
required to commence excess carrier insurance coverage under the
coverage-in-place agreement.
A full-text copy of the Form 10-Q is available at
https://bit.ly/3z23JSX
ASBESTOS UPDATE: U.S. Steel Defends 935 Active Cases at June 30
---------------------------------------------------------------
United States Steel Corporation, as of June 30, 2021, is a
defendant in approximately 935 active cases involving approximately
2,525 plaintiffs, according to the Company's Form 10-Q filing with
the U.S. Securities and Exchange Commission.
The Company states, "The vast majority of these cases involve
multiple defendants. About 1,545, or approximately 61 percent, of
these plaintiff claims are currently pending in a jurisdiction
which permits filings with massive numbers of plaintiffs. At
December 31, 2020, U. S. Steel was a defendant in approximately 855
cases involving approximately 2,445 plaintiffs. Based upon U. S.
Steel's experience in such cases, it believes that the actual
number of plaintiffs who ultimately assert claims against U. S.
Steel will likely be a small fraction of the total number of
plaintiffs.
"The amount U. S. Steel accrues for pending asbestos claims is not
material to U. S. Steel's financial condition. However, U. S. Steel
is unable to estimate the ultimate outcome of asbestos-related
claims due to a number of uncertainties, including: (1) the rates
at which new claims are filed, (2) the number of and effect of
bankruptcies of other companies traditionally defending asbestos
claims, (3) uncertainties associated with the variations in the
litigation process from jurisdiction to jurisdiction, (4)
uncertainties regarding the facts, circumstances and disease
process with each claim, and (5) any new legislation enacted to
address asbestos-related claims.
"Further, U. S. Steel does not believe that an accrual for
unasserted claims is required. At any given reporting date, it is
probable that there are unasserted claims that will be filed
against the Company in the future. In 2020 and 2019, the Company
engaged an outside valuation consultant to assist in assessing its
ability to estimate an accrual for unasserted claims. This
assessment was based on the Company's settlement experience,
including recent claims trends. The analysis focused on settlements
made over the last several years as these claims are likely to best
represent future claim characteristics. After review by the
valuation consultant and U. S. Steel management, it was determined
that the Company could not estimate an accrual for unasserted
claims.
"Despite these uncertainties, management believes that the ultimate
resolution of these matters will not have a material adverse effect
on U. S. Steel's financial condition."
A full-text copy of the Form 10-Q is available at
https://bit.ly/3md5XLS
ASBESTOS UPDATE: Univar Solutions Faces 227 PI Cases at June 30
---------------------------------------------------------------
Univar Solutions Inc., as of June 30, 2021, had an approximately
227 asbestos-related cases for which Univar has the obligation to
defend and indemnify; however, this number tends to fluctuate up
and down over time, according to the Company's Form 10-Q filing
with the U.S. Securities and Exchange Commission.
The Company is subject to liabilities from claims alleging personal
injury from exposure to asbestos. The claims result primarily from
an indemnification obligation related to Univar Solutions USA
Inc.'s ("Univar") 1986 purchase of McKesson Chemical Company from
McKesson Corporation ("McKesson"). Once certain conditions have
been met, Univar will have the ability to pursue insurance
coverage, if any, that may be available under McKesson's historical
insurance coverage to offset the impact of any fees, settlements,
or judgments that Univar is obligated to pay because of its
obligation to defend and indemnify McKesson. Historically, the vast
majority of these asbestos cases have been dismissed without
payment or with a nominal payment. While the Company is unable to
predict the outcome of these matters, it does not believe, based
upon currently available facts, that the ultimate resolution of any
of these matters will have a material effect on its overall
financial position, results of operations, or cash flows.
In the ordinary course of business, the Company is subject to
pending or threatened claims, lawsuits, regulatory matters and
administrative proceedings from time to time. Where appropriate the
Company has recorded provisions in the consolidated financial
statements for these matters. The liabilities for injuries to
persons or property are in some instances covered by liability
insurance, subject to various deductibles and self-insured
retentions.
The Company is not aware of any claims, lawsuits, regulatory
matters or administrative proceedings, pending or threatened, that
are likely to have a material effect on its overall financial
position, results of operations, or cash flows. However, the
Company cannot predict the outcome of any present or future claims
or litigation or the potential for future claims or litigation and
adverse developments could negatively impact earnings or cash flows
in a particular future period.
A full-text copy of the Form 10-Q is available at
https://bit.ly/3mdj67v
ASBESTOS UPDATE: W.W. Grainger Still Defends PI Claims
------------------------------------------------------
W.W. Grainger, Inc., from time to time, has been named, along with
numerous other nonaffiliated companies, as a defendant in
litigation in various states involving asbestos and/or silica,
according to the Company's Form 10-Q filing with the U.S.
Securities and Exchange Commission.
The Company states, "These lawsuits typically assert claims of
personal injury arising from alleged exposure to asbestos and/or
silica as a consequence of products manufactured by third parties
purportedly distributed by the Company. While several lawsuits have
been dismissed in the past based on the lack of product
identification, if a specific product distributed by the Company is
identified in any pending or future lawsuits, the Company will seek
to exercise indemnification remedies against the product
manufacturer to the extent available. In addition, the Company
believes that a substantial number of these claims are covered by
insurance. The Company has entered into agreements with its major
insurance carriers relating to the scope, coverage and the costs of
defense, of lawsuits involving claims of exposure to asbestos. The
Company believes it has strong legal and factual defenses and
intends to continue defending itself vigorously in these lawsuits.
"While the Company is unable to predict the outcome of any of these
proceedings and other matters, it believes that their ultimate
resolution will not have, either individually or in the aggregate,
a material adverse effect on the Company's consolidated financial
condition or results of operations."
A full-text copy of the Form 10-Q is available at
https://bit.ly/37PBJpQ
ASBESTOS UPDATE: Xylem Inc. Could Face Product Liability Claims
---------------------------------------------------------------
Xylem Inc., from time to time, may be asserted with claims alleging
injury caused by any of its products resulting from asbestos
exposure, according to the Company's Form 10-Q filing with the U.S.
Securities and Exchange Commission.
The Company states, "We believe there are numerous legal defenses
available for such claims and would defend ourselves vigorously.
Pursuant to the Distribution Agreement among ITT Corporation (now
ITT LLC; acquired by Delticus HoldCo, L.P., a portfolio company of
Warburg Pincus LLC, on July 1, 2021), Exelis (acquired by Harris
Corporation, now L3Harris Technologies, Inc.) and Xylem, ITT LLC
has an obligation to indemnify, defend and hold Xylem harmless for
asbestos product liability matters, including settlements,
judgments, and legal defense costs associated with all pending and
future claims that may arise from past sales of ITT's legacy
products. We believe ITT LLC remains a substantial entity with
sufficient financial resources to honor its obligations to us.
"Although the ultimate outcome of any legal matter cannot be
predicted with certainty, based on present information, including
our assessment of the merits of the particular claims, we do not
believe it is reasonably possible that any asserted or unasserted
legal claims or proceedings, individually or in aggregate, will
have a material adverse effect on our results of operations, or
financial condition. We have estimated and accrued $5 million and
$6 million as of June 30, 2021 and December 31, 2020, respectively,
for these general legal matters.
"As part of our 2011 spin-off from our former parent, ITT
Corporation (now ITT LLC; acquired by Delticus HoldCo, L.P., a
portfolio company of Warburg Pincus LLC, on July 1, 2021), Exelis
Inc. (acquired by Harris Corporation, now L3Harris Technologies,
Inc.) and Xylem will indemnify, defend and hold harmless each of
the other parties with respect to such parties' assumed or retained
liabilities under the Distribution Agreement and breaches of the
Distribution Agreement or related spin agreements. ITT LLC's
indemnification obligations include asserted and unasserted
asbestos and silica liability claims that relate to the presence or
alleged presence of asbestos or silica in products manufactured,
repaired or sold prior to October 31, 2011, the Distribution Date,
subject to limited exceptions with respect to certain employee
claims, or in the structure or material of any building or
facility, subject to exceptions with respect to employee claims
relating to Xylem buildings or facilities. The indemnification
associated with pending and future asbestos claims does not expire.
Xylem has not recorded a liability for material matters for which
we expect to be indemnified by the former parent or Exelis Inc.
through the Distribution Agreement and we are not aware of any
claims or other circumstances that would give rise to material
payments from us under such indemnifications.
A full-text copy of the Form 10-Q is available at
https://bit.ly/3mfjUbV
*********
S U B S C R I P T I O N I N F O R M A T I O N
Class Action Reporter is a daily newsletter, co-published by
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Toledo, Christopher G. Patalinghug, and Peter A. Chapman, Editors.
Copyright 2021. All rights reserved. ISSN 1525-2272.
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