/raid1/www/Hosts/bankrupt/CAR_Public/210902.mbx
C L A S S A C T I O N R E P O R T E R
Thursday, September 2, 2021, Vol. 23, No. 170
Headlines
ABC PHONES: Can Partly Compel Arbitration in Klink Labor Suit
ACER THERAPEUTICS: Agreement in Principle Reached in Skiadas Suit
AETNA LIFE: Wolff Seeks Certification of Class Action
AQUA CARPATICA: Court Dismisses Jaquez's Amended Class Complaint
ARGENT TRUST: Bid to Stay Class Certification Deadlines OK'd
BMW OF NORTH AMERICA: Patlan Seeks Approval of Class Status Bid
BRYAN COWDERY: McElwee Suit Seeks to Certify FLSA Class
CORMEDIX INC: Vincent Wong Law Reminds of September 20 Deadline
DANIEL MULLINS TRUCKING: Class Status Deadline Extended to Oct. 15
DISTRICT OF COLUMBIA: Schulte Seeks Final OK of Settlement Deal
DIVERSICARE HEALTHCARE: Bid to Drop Arkansas Suit Still Pending
EASTMAN KODAK: Garfield Class Suit Voluntarily Dismissed
EASTMAN KODAK: Les Investissements Kiz Headed Class Suit Underway
EVERSIDE HEALTH: Horton Files Suit in Cal. Super. Ct.
FENNEC PHARMA: Bid to Dismiss Chapman Putative Class Suit Pending
GENERAC HOLDINGS: Schall Law Firm Reminds of Oct. 19 Deadline
GRAND CARIBBEAN: Winters' Third Amended TCPA Complaint Dismissed
HOBBY LOBBY: Class Settlement in Marcrum FUDTPA Suit Wins Final Nod
HOBBY LOBBY: Class Settlement in Phillips Suit Has Final Approval
HOME DEPOT: Stipulated Protective Order Entered in Schilling Suit
IANTHUS CAPITAL: Bid to Nix New York Putative Class Suit Pending
IANTHUS CAPITAL: Ontario Shareholder Purported Class Suit Ongoing
IANTHUS CAPITAL: Zaboroski Purported Class Suit Underway
JAGUAR LAND: Faces Class Action in N.J. Over Diesel Filter Defects
LYFT INC: N.D. California Certifies Class in Securities Suit
MASONITE INT'L: Bid to Stay Putative Class Suit in Canada Pending
MASONITE INT'L: Final Judgments Entered in Virginia Antitrust Suits
MASONITE INT'L: Putative Class Suit Underway in Canada
MCCREARY VESELKA: Approval of Class Notice and Schedule Sought
MDL 2437: Dr. Kneuper's Testimony in Antitrust Suit Partly Struck
MDL 3005: Court Denies Transfer of 13 Cases to E.D. La
MDL 3006: 18 Tasigna Drug Row Suits Transferred to M.D. Fla.
MDL 3009: 12 Pet Collar-Related Suits Transferred to N.D. Ill.
MDL 3010: 19 Digital Ad-Related Actions Transferred to S.D. N.Y.
MDL 3011: Court Denies Request to Transfer 4 Actions
MELINDA COONROD: Class Cert. Bid Filing Extended to Nov. 18
NATIONWIDE MUTUAL: Can Compel Arbitration in Bush Class Suit
NCAA: Bryson Suit Transferred to N.D. Illinois
NCAA: Ferguson Suit Transferred to N.D. Illinois
NCAA: Girard Suit Transferred to N.D. Illinois
NCAA: Mimms Suit Transferred to N.D. Illinois
NCAA: Mitchell Suit Transferred to N.D. Illinois
NEW YORK CITY: Class Status Briefing Sched Extended to Sept. 30
NEWS CORP: Suits Against HarperCollins Publishers Underway
PARETEUM CORP: Loskot Putative Class Suit Underway
PARETEUM CORP: Putative Securities Class Suit Underway in New York
PARKMOBILE LLC: Demos Suit Removed to N.D. Georgia
REALPAGE INC: Bid to Transfer Fritz's Venue to N.D. Texas Denied
SACHS ELECTRIC: 3 Classes and 2 Subclasses Certified in Durham Suit
SCIENTIFIC GAMES: Tonkawa Tribe Suit Transferred to N.D. Ill.
SEQUENTIAL BRANDS: Continues to Defend D'Arcy Class Action
SESEN BIO: Rosen Law Firm Reminds of October 18 Deadline
STATE TRANSPORT: Macomber Suit Removed to D. South Carolina
STEMILT AG: Washington Court Certifies FLCA Subclass in Garcia Suit
TRACE STAFFING: Gouldie Seeks to Certify Salaried Recruiter Class
UBER TECHNOLOGIES: Can Compel Arbitration in Davarci NYLL Suit
VIATRIS INC: EpiPen Auto-Injector Direct Purchaser Suit Junked
VIATRIS INC: Opioid Related Putative Class Actions Underway
VIATRIS INC: PERS Mississippi Suit Against Mylan Underway
WAWA INC: Class Action Over 2019 Data Security Incident Settled
WISCONSIN: Court Denies Bid to Certify Class in Justich v. Oshkosh
WW INTERNATIONAL: Membership Fees Related Suit Nixed w/ Prejudice
ZOSANO PHARMA: Bid to Junk Consolidated Stockholders Suit Pending
*********
ABC PHONES: Can Partly Compel Arbitration in Klink Labor Suit
-------------------------------------------------------------
In the case, ARIEL KLINK, Plaintiff v. ABC PHONES OF NORTH
CAROLINA, INC., Defendant, Case No. 20-cv-06276-EMC (N.D. Cal.),
Judge Edward M. Chen of the U.S. District Court for the Northern
District of California issued an Order:
a. granting in part ABC's motion to compel all provisions of
the parties' arbitration agreement except for the Private
Attorneys General Act (PAGA) waiver (section 3) and the
unilateral modification provision (section 8);
b. dismissing the non-PAGA class allegations; and
c. staying the action pending the arbitration of the non-PAGA
individual claims.
Background
Plaintiff Klink filed a class action complaint against Defendant
ABC asserting eight causes of action and alleging, among other
things, that ABC failed to pay minimum and overtime wages, failed
to provide lawful meal and rest periods, failed to pay wages at the
time of separation, failed to furnish accurate itemized wage
statements, failed to reimburse necessary expenses, and violated
California's unfair competition law.
On June 10, 2020, Ms. Klink filed the putative class action against
ABC in Alameda County Superior Court. In her complaint, Ms. Klink
raised claims for: (1) failure to pay minimum wages, (2) failure to
pay overtime wages, (3) failure to provide lawful meal periods, (4)
failure to authorize and permit rest periods, (5) failure to timely
pay wages owed upon separation from employment, (6) failure to
furnish accurate itemized wage statements, (7) failure to reimburse
necessary expenses, and (8) violation of California's Unfair
Competition Law.
On Sept. 1, 2020, ABC filed its answer by way of a general denial
and affirmative defenses to the complaint. ABC then filed a notice
of removal to federal court on Sept. 4, 2020 based on diversity
jurisdiction. See Notice of Removal. Shortly thereafter, ABC
brought the instant motion to compel arbitration, dismiss class
action allegations, and stay the action pursuant to the Federal
Arbitration Act (FAA) and the California Arbitration Act (CAA) on
Feb. 9, 2021. On June 8, 2021, the Court held an evidentiary
hearing, pursuant to 9 U.S.C. Section 4, to determine whether the
parties had entered into an arbitration agreement.
Discussion
To rule on a motion to compel arbitration, a district court must
decide "(1) whether a valid agreement to arbitrate exists and, if
it does, (2) whether the agreement encompasses the dispute at
issue." If the response is affirmative on both counts, then absent
application of the savings clause, the Act requires the court to
enforce the arbitration agreement in accordance with its terms.
A. Existence of an Agreement to Arbitrate
As a threshold matter, the Court first determines if there is a
valid agreement between the parties to arbitrate before it can
decide if an agreement is enforceable. If it cannot determine a
contract exists as a matter of law, and instead finds that there is
a genuine issue of material fact as to whether the parties formed
an agreement, then it will proceed summarily to the trial thereof.
During that limited trial or evidentiary hearing, the party seeking
to compel arbitration would "bear the burden of proving the
agreement's existence by a preponderance of the evidence," under
California Law. Rosenthal v. Great W. Fin. Sec. Corp., 926 P.2d
1061, 1072 (Cal. 1996).
In the case, Judge Chen held an evidentiary hearing pursuant to
Section 4 because, based on the parties' briefs and declarations,
there was a genuine factual dispute as to whether Ms. Klink entered
into an agreement to arbitrate with ABC. At the evidentiary
hearing, a preponderance of the evidence established that there was
indeed an agreement to arbitrate between the parties.
Taking all these competing facts into consideration, Judge Chen
determined that ABC's papers and declarations did not conclusively
prove by a preponderance of the evidence that an arbitration
agreement existed between the parties, and that there was a factual
dispute about Ms. Klink's consent thereto. Even though under a
summary judgment standard, a self-serving declaration does not
always create a genuine issue of material fact and the district
court can disregard a self-serving declaration that states only
conclusions and not facts, the Judge must "construe all facts and
reasonable inferences that can be drawn from those facts in a light
most favorable to Ms. Klink. He says, it is true that Ms. Klink
made the self-serving conclusory statement that she "did not click
on the computer button to acknowledge review and accept the
arbitration agreement." But she also alleged facts to sew doubt and
create a genuine issue of material fact regarding the existence of
an agreement.
Accordingly, Judge Chen concluded there was a genuine issue of
material fact as to whether Ms. Klink signed ABC's arbitration
agreement.
Having determined that there was a genuine issue of material fact
as to the existence of an arbitration agreement between the
parties, the Judge decided to hold an evidentiary hearing pursuant
to Section 4. In the case at bar, Ms. Klink would have been
entitled to a jury trial to determine the existence of an
arbitration agreement had she demanded one "on or before the return
day of the notice of application" to submit to arbitration. The
Judge holds that although Ms. Klink made a general demand for a "a
jury trial in the matter" in her complaint, her opposition did not
contain a special demand for a jury trial on whether an arbitration
agreement existed. Ms. Klink "requested leave to conduct discovery
relating to the formation of the purported agreement, including a
deposition of Ms. Patel and Ms. Klink's former direct supervisor."
The Judge, therefore, concluded that Ms. Klink waived her right to
a jury trial because she failed to specifically demand a jury trial
on the issue of arbitration on or before the motion to compel
arbitration was filed. Accordingly, he held an evidentiary hearing
on June 8, 2021, to give ABC an opportunity to establish the
existence of a valid arbitration agreement by a preponderance of
the evidence.
At the evidentiary hearing, ABC established by a preponderance of
the evidence that the parties entered into an arbitration
agreement. Judge Chen made three factual findings that support this
conclusion. First, ABC introduced incontrovertible record evidence
that Ms. Klink clicked on, reviewed, and acknowledged the
arbitration agreement on the LMS system. Second, ABC introduced
record evidence entirely contradicting Ms. Klink's assertion in her
declaration that her immediate supervisor and the store's manager,
Mr. Cagle, was present when she completed the arbitration agreement
module, observed her enter the password, and kept a copy of her
username and password. Finally, Ms. Klink's counsel argued that the
title and descriptor of the arbitration agreement module on the LMS
system misled Ms. Klink into thinking she was exempt from the
agreement.
Accordingly, based on the evidence presented at the evidentiary
hearing and in Ms. Biscardi's supplemental declaration, Judge Chen
concludes that ABC has established, by a preponderance of the
evidence, that Ms. Klink clicked on, reviewed, and acknowledged the
arbitration agreement.
B. The Arbitration Agreement Is Enforceable
Having determined that Ms. Klink and ABC entered into an
arbitration agreement, Judge Chen then proceeds to evaluate whether
that agreement was enforceable and conscionable. Ms. Klink argues
the arbitration agreement is unconscionable. Under California law,
therefore, she must prove both procedural and substantive
unconscionability to invalidate the arbitration agreement.
Judge Chen holds that although Ms. Klink has shown slight
procedural unconscionability because the parties' arbitration
agreement is a contract of adhesion, she fails to establish that
the agreement is plagued with significant substantive
unconscionability to be considered unenforceable under the sliding
scale applied to the unconscionability analysis under California
law. In fact, virtually identical provisions have been found to be
conscionable by other California district courts, and Judge Staton
of the Central District of California correctly found that this
exact agreement was enforceable.
In sum, the only unconscionability Ms. Klink was able to establish
was slight procedural unconscionability from the agreement being a
contract of adhesion. There was no substantive unconscionability
other than the unilateral modification provision (section 8) and
the PAGA waiver (section 3), which Judge Chen severs. And, there is
no anti-Armendariz clause which would likely cast a chilling effect
regarding arbitration fees and costs. Accordingly, because Ms.
Klink has not proven by a preponderance of the evidence that the
arbitration agreement is permeated with unconscionability, the
Judge enforces the agreement, except for sections 3 and 8.
C. Dismissal of Class Action Claims
Because he enforces the arbitration agreement, Judge Chen also
dismisses the non-PAGA class action claims in adherence with the
class action wavier in the arbitration agreement. Ms. Klink does
not raise any objection to ABC's motion to dismiss the class action
claims. Accordingly, Ms. Klink will have to proceed to arbitrate
all non-PAGA claims on an individual basis.
D. Stay Pending Arbitration
Similarly, Ms. Klink does not disagree that the suit should be
stayed pending arbitration. A court may stay proceedings as part of
its inherent power "to control the disposition of the causes on its
docket with economy of time and effort for itself, for counsel, and
for litigants." Use of this power "calls for the exercise of
judgment, which must weigh competing interests and maintain an even
balance."
Accordingly, Judge Chen uses his discretion to stay the suit until
the conclusion of arbitration.
Conclusion
For the foregoing reasons, Judge Chen grants in part ABC's motion
to compel all provisions of the parties' arbitration agreement
except sections 3 and 8. He also dismisses the non-PAGA class
allegations and stays this action pending the arbitration of the
non-PAGA individual claims. The Order disposes of Docket No. 15.
A full-text copy of the Court's Aug. 20, 2021 Order is available at
https://tinyurl.com/24wky2c5 from Leagle.com.
ACER THERAPEUTICS: Agreement in Principle Reached in Skiadas Suit
-----------------------------------------------------------------
Acer Therapeutics Inc. said in its Form 10-Q Report filed with the
Securities and Exchange Commission on August 10, 2021, for the
quarterly period ended June 30, 2021, that the parties in Skiadas
v. Acer Therapeutics Inc. et al., have reached an agreement in
principle to settle the action for a payment of $8.4 million.
On July 1, 2019, plaintiff Tyler Sell filed a putative class action
lawsuit, Sell v. Acer Therapeutics Inc. et al., No.
1:19-cv-06137GHW, against the Company, Chris Schelling and Harry
Palmin, in the U.S. District Court for the Southern District of New
York.
The Complaint alleges that the Company violated federal securities
laws by allegedly making material false and misleading statements
regarding the likelihood of the Food and Drug Administration (FDA)
approval for the EDSIVOTM New Drug Application (NDA).
With the selection of a lead plaintiff, the case is now captioned
Skiadas v. Acer Therapeutics Inc. et al. The Lead Plaintiff filed a
Second Amended Complaint on February 28, 2020 and the Company moved
to dismiss the Second Amended Complaint on May 1, 2020.
On June 16, 2020, the Court granted in part and denied in part the
Company's motion to dismiss. The Company filed its answer to the
Second Amended Complaint on August 7, 2020, and the Court held an
initial conference on August 17, 2020. After obtaining leave from
the Court to do so, the Lead Plaintiff filed his Third Amended
Complaint on February 4, 2021.
The parties reached an agreement in principle to settle this action
for a payment of $8.4 million, which is subject to Court approval.
Payment of the settlement will be made by the Company's insurance
carriers.
As of June 30, 2021, the Company has recognized $8.4 million for
the proposed settlement as a loss in other current liabilities and
also recognized a receivable from its insurance carrier of an equal
amount in other current assets.
Acer Therapeutics Inc. a pharmaceutical company focused on the
acquisition, development, and commercialization of therapies for
serious rare and life-threatening diseases with significant unmet
medical needs. The company is based in Newton, Massachusetts.
AETNA LIFE: Wolff Seeks Certification of Class Action
-----------------------------------------------------
In the class action lawsuit captioned as JOANNE WOLFF, Individually
and as Class representative on behalf of others Similarly Situated,
v. AETNA LIFE INSURANCE COMPANY and THE RAWLINGS COMPANY, LLC, Case
No. 4:19-cv-01596-MWB (M.D. Pa.), the Plaintiff asks the Court to
enter an order certifying a class of:
"All persons who were injured and received long-term
disability benefits from the defendant as a result of an
injury causing event and as against whom defendant sought or
recovered reimbursement of long-term disability benefits it
had paid to insureds from the insureds' tort recoveries and
who suffered harm and damages which include, by way of
exemplification and not in limitation, the loss of use of
money, the loss of interest on money, the loss of possession
of their funds; the loss enjoyment of their funds, their
losses in having to free their funds from defendants'
encumbrances and payment of money from their tort recoveries
to the defendant as a result of defendants' wrongful
reimbursement demands and actions based on violation of the
policy."
Ms. Wolff filed this action on August 8, 2019, setting forth claims
against the Defendants based on their reimbursement claims against
the personal injury recoveries of Aetna insureds who were insured
under long-term disability policies issued by Aetna.
The Plaintiff Wolff and the putative class members are persons who
were insured under LTD policies issued by Aetna, who were injured
in injury-causing events, who received LTD benefits from Aetna
under a standard form LTD policy, who secured a recovery against
the underlying tortfeasor, and were subject to improper claims for
repayment by Aetna.
Aetna Life provides insurance products. Rawlings provides legal
services.
A copy of the Plaintiff's motion to certify class dated Aug. 30,
2021 is available from PacerMonitor.com at https://bit.ly/3DAB3TT
at no extra charge.[CC]
The Plaintiff is represented by:
Charles Kannebecker, Esq.
THE LAW OFFICE OF CHARLES KANNEBECKER
104 W High St, Milford, PA 18337
Telephone: (570) 296-6471
AQUA CARPATICA: Court Dismisses Jaquez's Amended Class Complaint
----------------------------------------------------------------
In the case, RAMON JAQUEZ, on behalf of himself and all others
similarly situated, Plaintiff v. AQUA CARPATICA USA, INC.,
Defendant, Case No. 20 CV 8487 (ALC) (S.D.N.Y.), Judge Andrew L.
Carter, Jr., of the U.S. District Court for the Southern District
of New York granted the Defendant's motion to dismiss the
Plaintiff's amended class action complaint.
Plaintiff Jaquez brings the action on behalf of himself and all
other persons similarly situated against Defendant, Aqua Carpatica
USA ("ACU"). He alleges violations of Title III of the Americans
with Disabilities Act ("ADA"), 42 U.S.C. Section 12181, et seq. and
the New York City Human Rights Law ("NYCHRL") on the basis that ACU
denies visually impaired people from having full and equal access
to its website.
The Plaintiff is a visually impaired person who resides in the
Bronx, New York. The Defendant is a water distribution company and
Delaware Corporation that owns and operates the website,
www.shopaquacarpatica.com. It offers goods and services through
delivery throughout the United States, including New York State.
The Plaintiff alleges that he attempted to access the Defendant's
website with the intent of browsing and potentially making a
purchase on September 20, 2020, by using a reading software called
NonVisual Desktop Access. Despite his efforts, the Plaintiff
alleges that he was denied access due to the website's lack of a
variety of features and accommodations. After visiting the website,
the Plaintiff concluded that the website "includes multiple
barriers making it impossible for himself, and any other visually
impaired or blind person, from enjoying access to the website's
content equally to that of a sighted user."
The Plaintiff claims that the Defendant is subject to NYCHRL
because it owns and operates its website, making it a person within
the meaning of N.Y.C. Admin. Code Section 8-102(1). He alleges the
Defendant is violating N.Y.C. Administrative Code Section
8-107(4)(a) "in refusing to update or remove access barriers to its
website, causing its website and the services integrated with such
Website to be completely inaccessible to the blind."
The Plaintiff further alleges that many features on the website
"fail to accurately describe the contents of graphical images, fail
to properly label title, fails to distinguish one page from
another, contains multiple broken links, contains headings that do
not describe the topic or purpose, and the keyboard user interfaces
lack a mode of operation where the keyboard focus indicator is
visible." He also alleges that the access barriers remained when he
attempted to access the Defendant's website on Dec. 23, 2020.
The Plaintiff claims that the accessibility issues on the website
have not been resolved by the Defendant as a public accommodation,
and that he desires to return to the website to potentially
purchase products once it is accessible to him.
The Plaintiff commenced the action on Oct. 12, 2020. He filed his
amended complaint on Dec. 24, 2020. In light of the Plaintiff's
amended complaint, the Court denied the Defendant's motion to
dismiss on Dec. 28, 2020. On Jan. 28, 2021, the Defendant filed its
motion to dismiss and submitted an accompanying memorandum of law
in support of its motion. On Feb. 18, 2021, the Plaintiff submitted
a memorandum of law in opposition to Defendant's motion to dismiss
his amended complaint. He also submitted a declaration, resume and
audit reports from its expert Robert D. Moody. On Feb. 25, 2021,
the Defendant submitted its reply. The Court considers the motion
fully briefed.
The Plaintiff requests that the Court declares the Defendant's
website is in violation of the ADA and NYCHRL, and requests a
preliminary and permanent injunction requiring the Defendant to
"take all the steps necessary to make its website into full
compliance with the requirements set forth in the ADA, and its
implementing regulations, so that the website is ready accessible
to and usable by blind individuals".
Discussion
The Defendant argues that the Court should grant its motion to
dismiss because it lacks subject matter jurisdiction over the
Plaintiff's claims because: 1) the Plaintiff lacks standing to
bring his ADA, state and city law claims, 2) the claims alleged in
the amended complaint are moot because ACU has remedied all of the
alleged ADA violations on the website, and 3) the Plaintiff fails
to state a claim for various forms of relief under the NYCHRL.
A. Plaintiff Lacks Standing to Bring His ADA Claim
The Defendant alleges that Plaintiff lacks standing to bring his
ADA claim. It claims that the Plaintiff has not suffered an injury
in fact because he fails to explain: 1) how site elements are not
labeled to integrate with the screen reader and what that prevented
Plaintiff from accessing [the website], 2) the important
information that he was denied access to complete a purchase, 3)
the product that he intended to purchase and 4) how inaccessible
nutritional information of the products on the website prevented
Plaintiff from making a purchase.
Judge Carter agrees that the Plaintiff has not suffered an injury
in fact and lacks Article III standing. First, the Plaintiff could
not articulate the product that he intended to purchase on
Defendant's website. Furthermore, he did not specify the name of
any product that he desires to purchase in the future in his
amended complaint. A plaintiff must allege sufficient facts to show
"more than a sheer possibility that a defendant has acted
unlawfully" in order to survive a motion to dismiss. It is not
sufficient to claim that he suffered an injury in fact by casually
going on the website with the intent of browsing and potentially
purchasing a product without identifying the product that he was
prevented from purchasing.
Second, in Camacho v. Vanderbilt Univ., 2019 U.S. Dist. LEXIS
209202, at 16* (S.D.N.Y. Dec. 4, 2019) cited by the Plaintiff, the
plaintiff was a visually impaired individual that articulated that
he went on the defendant's website for a specific purpose. The
plaintiff in that case was unable to access this information from
the defendant's website which prevented him from applying to the
university. Unlike in Camacho, the Plaintiff here has not pleaded
injury in fact with sufficient clarity of the product that the
intended to purchase on defendant's website, or seeks to purchase
in the future. Therefore, the Judge holds that he lacks standing to
bring a claim under the ADA.
B. If Plaintiff Had Standing, His ADA Claim Would Not Necessarily
Be Moot
Although he has established that Plaintiff lacks standing to bring
his claim, Judge Carter examines the Defendant's claim that it has
remedied all of the alleged ADA violations listed in the
Plaintiff's original and amended complaint(s) rendering the
Plaintiff's ADA claim moot. The Defendant also claims that it will
continue to remain compliant with current Web Content Accessibility
Guidelines ("WCAG") that may be established in the future.
Judge Carter has reviewed previous case decisions in the district
on the matter including the cases cited to by the parties. He
believes that the evidence provided by the Plaintiff and the
Defendant reveal that there may be potential ADA violations on the
website that the Defendant has not yet remedied. The Judge holds
that the Plaintiff has not successfully pleaded an injury in fact
with sufficient clarity of the product that he was prevented from
purchasing on the Defendant's website when he visited the website
on Sept. 20, 2020, or Dec. 23, 2020. The Plaintiff has also not
articulated the product that he desires to buy in his wish to
return to the website in the future. If the Plaintiff had
adequately alleged that he suffered an injury in fact, his
complaint may have survived the Defendant's motion to dismiss.
C. Plaintiff's Claim under the NYCHRL
Since he has determined that the Plaintiff lacks standing to bring
his ADA claim, Judge Carter dismisses the Plaintiff's claim under
NYCHRL as well. He finds that nothing distinguishes the matter from
"the usual case." First, the Plaintiff's federal claim against the
Defendant is dismissed prior to trial. Moreover, none of the
factors that the Supreme Court enunciated in Cohill -- "judicial
economy, convenience, fairness, or comity" -- militates against
such dismissal.
Conclusion
For the reasons he stated, Judge Carter granted the Defendant's
motion to dismiss. The Clerk of Court is directed to close the
case.
A full-text copy of the Court's Aug. 20, 2021 Opinion & Order is
available at https://tinyurl.com/cztfd7ku from Leagle.com.
ARGENT TRUST: Bid to Stay Class Certification Deadlines OK'd
------------------------------------------------------------
In the class action lawsuit captioned as Lysengen v. Argent Trust
Company, et al., Case No. 1:20-cv-01177 (C.D. Ill.),
the Hon. Magistrate Judge Jonathan E. Hawley entered an order
granting the Defendant's unopposed motion to stay class
certification deadlines.
The suit alleges violation of Employee Retirement Income Security
Act involving recovery of benefits to employee.
Argent operates as an investment management firm. The company
offers financial planning, trusts, and real estate management
services.[CC]
BMW OF NORTH AMERICA: Patlan Seeks Approval of Class Status Bid
---------------------------------------------------------------
In the class action lawsuit captioned as GABRIEL PATLAN, RYAN
CORNELL and LA DELLA LEVY, on behalf of themselves and all others
similarly situated, v. BMW OF NORTH AMERICA, LLC, Case No.
2:18-cv-09546-CCC-MF (D.N.J.), the Plaintiffs ask the Court to
enter an order:
1. granting their motion for class certification;
2. appointing them as class representatives, and
3. appointing their counsel as class counsel.
BMW of North America, LLC – an importer and distributor of BMW
luxury and performance vehicles, and light trucks.
A copy of the Plaintiffs' motion to certify class dated Aug. 30,
2021 is available from PacerMonitor.com at https://bit.ly/3zD3Swo
at no extra charge.[CC]
The Plaintiffs are represented by:
James C. Shah, Esq.
Natalie Finkelman Bennett, Esq.
MILLER SHAH LLP
2 Hudson Place, Suite 100
Hoboken, NJ 07030
Telephone: (866) 540-5505
Facsimile: (866) 300-7367
E-mail: nfinkelman@millershah.com
jcshah@millershah.com
- and -
Brian C. Gudmundson, Esq.
ZIMMERMAN REED LLP
1100 IDS Center
80 South 8th Street
Minneapolis, MN 55402
Telephone: (612) 341-0400
Facsimile: (612) 341-0844
E-mail: brian.gudmundson@zimmreed.com
- and -
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
- and -
Catherine E. Anderson, Esq.
Oren Giskan, Esq.
GISKAN SOLOTAROFF &
ANDERSON LLP
217 Centre Street, 6th Floor
New York, NY 10013
Telephone: (212) 847-8315
E-mail: canderson@gslawny.com
ogiskan@gslawny.com
- and -
Cory L. Zajdel, Esq
Z LAW, LLC
2345 York Road, Suite No. B-13
Timonium, MD 21903
Telephone: (443) 213-1977
E-mail: clz@zlawmaryland.com
- and -
Bruce H. Nagel, Esq.
Randee M. Matloff, Esq.
NAGEL RICE LLP
103 Eisenhower Parkway
Roseland, NJ 07068
Telephone: (973) 618-0400
E-mail: bnagel@nagelrice.com
rmatloff@nagelrice.com
BRYAN COWDERY: McElwee Suit Seeks to Certify FLSA Class
-------------------------------------------------------
In the class action lawsuit captioned as AMANDA MCELWEE, et al.,
Plaintiffs, v. BRYAN COWDERY, INC., et al., Case No.
2:21-cv-01265-SDM-KAJ (S.D. Ohio), the Plaintiffs Amanda McElwee,
Kendall Harris, and Scott Edwards ask the Court to enter an order
pursuant to Section 16(b) of the Fair Labor Standards Act
("FLSA"):
1. conditionally certifying Plaintiffs' proposed collective
FLSA class defined as:
"All current and former Delivery Drivers who, during the
previous three years, drove a vehicle weighing less than
10,000 pounds during any workweek. ("FLSA Class");"
2. implementing a procedure whereby Court-approved Notice of
Plaintiffs' FLSA claims is sent to Plaintiffs' proposed
class; and
3. requiring the Defendants to, within 14 days of this
Court's order, identify all potential opt-in plaintiffs by
providing a list in electronic and importable format, of
the name, last known address, work and personal e-mail
address(es), phone numbers, and dates of employment of all
potential opt-in plaintiffs who worked for Defendants in
the timeframe specified by Plaintiffs.
This is a collective action to recover overtime wage payments
brought pursuant to the FLSA. The Plaintiffs are former Delivery
Drivers that were employed by the Defendants. The Plaintiffs allege
that Defendants unlawfully deducted compensable time from their
pay. The deductions resulted in a failure to pay overtime
compensation, the lawsuit says.
Bryan Cowdery is in the parcel delivery business. The Defendants
contract with FedEx or FedEx affiliates to deliver packages to
customers in central and southern Ohio.
A copy of the Plaintiffs' motion to certify class dated Aug. 30,
2021 is available from PacerMonitor.com at https://bit.ly/3jvfBHM
at no extra charge.[CC]
The Plaintiffs are represented by:
Greg R. Mansell, Esq.
Carrie J. Dyer, Esq.
Mansell Law LLC
1457 S. High St.
Columbus, OH 43207
Telephone: (614) 610-4134
Facsimile: (614) 547-3614
E-mail: Greg@MansellLawLLC.com
Carrie@MansellLawLLC.com
CORMEDIX INC: Vincent Wong Law Reminds of September 20 Deadline
---------------------------------------------------------------
The Law Offices of Vincent Wong on Aug. 29 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.
CorMedix Inc. (NASDAQ:CRMD)
If you suffered a loss, contact us
at:https://www.wongesq.com/pslra-1/cormedix-inc-loss-submission-form?prid=19066&wire=1
Lead Plaintiff Deadline: September 20, 2021
Class Period: July 8, 2020 - May 13, 2021
Allegations against CRMD include that: (i) deficiencies existed
with respect to an investigational drug product, DefenCath's,
manufacturing process and/or at the facility responsible for
manufacturing DefenCath; (ii) in light of the foregoing
deficiencies, the Food and Drug Administration was unlikely to
approve the DefenCath new drug application for catheter-related
bloodstream infections in its present form; (iii) Defendants had
downplayed the true scope of the deficiencies with DefenCath's
manufacturing process and/or at the facility responsible for
manufacturing DefenCath; and (iv) as a result, the Company's public
statements were materially false and misleading at all relevant
times.
ATI Physical Therapy, Inc. f/k/a Fortress Value Acquisition Corp.
II (NYSE:ATIP)
If you suffered a loss, contact us
at:https://www.wongesq.com/pslra-1/ati-physical-therapy-inc-f-k-a-fortress-value-acquisition-corp-ii-loss-submission-form?prid=19066&wire=1
Lead Plaintiff Deadline: October 15, 2021
This lawsuit is on behalf of investors who: (a) purchased or
otherwise acquired ATI securities between April 1, 2021 and July
23, 2021, inclusive and/or (b) held FVAC Class A common stock as of
May 24, 2021 and were eligible to vote at FVAC's June 15, 2021
special meeting.
Allegations against ATIP include that: (1) ATI was experiencing
attrition among its physical therapists; (2) ATI faced increasing
competition for clinicians in the labor market; (3) as a result of
the foregoing, the Company faced difficulties retaining therapists
and incurred increased labor costs; (4) as a result of the labor
shortage, the Company would open fewer new clinics; and (5) as a
result of the foregoing, Defendants' positive statements about the
Company's business, operations, and prospects were materially
misleading and/or lacked a reasonable basis.
Cassava Sciences, Inc. (NASDAQ:SAVA)
If you suffered a loss, contact us
at:https://www.wongesq.com/pslra-1/cassava-sciences-inc-loss-submission-form?prid=19066&wire=1
Lead Plaintiff Deadline: October 26, 2021
Class Period: February 2, 2021 - August 24, 2021
Allegations against SAVA include that: (a) the quality and
integrity of the scientific data supporting Cassava's claims for
simufilam's, a small molecule drug designed to treat Alzheimer's
disease, efficacy had been overstated; (b) the scientific data
supporting Cassava's claims for simufilam's efficacy were biased;
and (c) as a result of the foregoing, Defendants' positive
statements during the Class Period about the Company's business
metrics and financial prospects and the likelihood of Food and Drug
Administration approval were false and misleading and/or lacked a
reasonable basis.
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]
DANIEL MULLINS TRUCKING: Class Status Deadline Extended to Oct. 15
------------------------------------------------------------------
In the class action lawsuit captioned as Esprit et al v. Daniel
Mullins Trucking, Inc., Case No. 8:21-cv-00855 (M.D. Fla.), the
Hon. Judge Virginia Hernandez Covington entered an endorsed order
granting the unopposed motion to extend the motion for class
certification deadline.
The deadline is now October 15, 2021. The Court will not extend
this deadline further, says Judge Covington.
The nature of suit states civil rights – employment.
Daniel Mullins Trucking is a family owned and operated trucking
company that serves Central Florida.[CC]
DISTRICT OF COLUMBIA: Schulte Seeks Final OK of Settlement Deal
----------------------------------------------------------------
In the class action lawsuit captioned as JESSE P. SCHULTZ, III, et
al., v. DISTRICT OF COLUMBIA, et al., Case No. 1:18-cv-00120-ABJ
(D.D.C.), Case No. 1:18-cv-120 (ABJ), the Plaintiffs ask the Court
to enter an order granting final approval of the settlement
agreement.
On May 11, 2021, the Court preliminarily approved the settlement
and ordered Class Counsel and counsel for Defendant to submit any
paper in support of final approval by the settlement by August 25,
2021. On August 26, 2021, the Court extended the time within which
the parties may file these papers until August 30, 2021.
Two classes were preliminarily certified:
-- the Conditions of Confinement Class which consists of:
individuals who (i) were arrested at a location on or near
12th and L Street, NW in the District of Columbia on January
20, 2017; (ii) did not arrive at a booking facility less than
two hours after the time of arrest; and (iii) are not
plaintiffs in Horse, et al. v. District of Columbia, et al.,
Case No. 17-cv-1216 (ABJ); and
-- False Arrest Class consists of:
"individuals who (i) were arrested at a location on or near
12th and L Street, NW in the District of Columbia on January
20, 2017; (ii) were not convicted of committing a crime in
connection with that protest; (iii) attest that they were not
committing a felony or misdemeanor during that protest; and
(iv) are not plaintiffs in Horse, et al. v. District of
Columbia, et al., Case No. 17-cv-1216 (ABJ). The settlement
agreement provides that a total of $800,000 will be allocated
for distribution to the False Arrest Class, with each
eligible class member who submits an approved claim to
receive a pro rata share of this amount, subject to a maximum
of $5,000."
The settlement agreement provides that a total of $102,900 will be
allocated for distribution to the Conditions of Confinement Class,
with each eligible class member to receive "shares" based on how
much time elapsed between their arrest and their arrival at a
booking facility which provided access to food, water, and
restrooms, with the dollar amount to be determined on a pro rata
basis subject to a maximum of $680 per person. The settlement
agreement will dismiss all claims against the defendants.
A copy of the Plaintiff's motion dated Aug. 30, 2021 is available
from PacerMonitor.com at https://bit.ly/2WKHYcz at no extra
charge.[CC]
The Plaintiffs are represented by:
Jeffrey L. Light, Esq.
1629 K St., NW, Suite 300
Washington, DC 20006
Telephone: (202)277-6213
E-mail: Jeffrey@LawOfficeOfJeffreyLight.com
DIVERSICARE HEALTHCARE: Bid to Drop Arkansas Suit Still Pending
---------------------------------------------------------------
Diversicare Healthcare Services said in its Form 10-Q Report filed
with the Securities and Exchange Commission on August 10, 2021, for
the quarterly period ended June 30, 2021, that the company's motion
to dismiss the amended complaint in a purported class action
complaint in the Circuit Court of Garland County, Arkansas, remains
pending.
In January 2009, a purported class action complaint was filed in
the Circuit Court of Garland County, Arkansas against the Company
and certain of its subsidiaries and Garland Nursing &
Rehabilitation Center.
The Company answered the original complaint in 2009, and there was
no other activity in the case until May 2017.
At that time, plaintiff filed an amended complaint asserting new
causes of action.
The amended complaint alleges that the defendants breached their
statutory and contractual obligations to the patients of the Center
over a multi-year period by failing to meet minimum staffing
requirements, failing to otherwise adequately staff the Center and
failing to provide a clean and safe living environment in the
Center.
The Company filed an answer to the amended complaint denying
plaintiffs' allegations and asked the Court to dismiss the new
causes of action asserted in the amended complaint because the
Company was prejudiced by plaintiff's long delay in filing the
amended complaint.
The Court has not yet ruled on the motion to dismiss, so the
lawsuit remains in its early stages and has not yet been certified
by the court as a class action.
The Company intends to defend the lawsuit vigorously.
No further updates were provided in the Company's SEC report.
Diversicare Healthcare Services, Inc. provides post-acute care
services to skilled nursing center, patients, and residents
primarily in the Southeast, Midwest, and the Southwest United
States Diversicare Healthcare Services, Inc. was founded in 1994
and is based in Brentwood, Tennessee.
EASTMAN KODAK: Garfield Class Suit Voluntarily Dismissed
--------------------------------------------------------
Eastman Kodak Company said in its Form 10-Q Report filed with the
Securities and Exchange Commission on August 10, 2021, for the
quarterly period ended June 30, 2021, that the Robert Garfield
initiated class action suit, has been voluntarily dismissed.
On December 29, 2020 Robert Garfield commenced a class action
lawsuit against the Company and current and former members of its
Board of Directors in the Superior Court of Mercer County, New
Jersey seeking equitable relief and damages in favor of the Company
based on alleged breaches of fiduciary duty by the Company's Board
of Directors associated with alleged false and misleading proxy
statement disclosures.
The Company and each of the individual defendants filed motions to
dismiss the Fiduciary Class Action on April 13, 2021.
On May 26, 2021, the plaintiff in the Fiduciary Class Action
voluntarily dismissed the Fiduciary Class Action without
prejudice.
Eastman Kodak Company is a global technology company focused on
print and advanced materials and chemicals. Kodak provides
industry-leading hardware, software, consumables and services
primarily to customers in commercial print, packaging, publishing,
manufacturing and entertainment. Kodak is committed to
environmental stewardship and ongoing leadership in developing
sustainable solutions.
EASTMAN KODAK: Les Investissements Kiz Headed Class Suit Underway
-----------------------------------------------------------------
Eastman Kodak Company said in its Form 10-Q Report filed with the
Securities and Exchange Commission on August 10, 2021, for the
quarterly period ended June 30, 2021, that the company continues to
defend a consolidated class action suit headed by Les
Investissements Kiz Inc. and UAT Trading Service, Inc.
On August 13, 2020 Tiandong Tang commenced a class action lawsuit
against the Company, its Executive Chairman and Chief Executive
Officer and its Chief Financial Officer in Federal District Court
in the District of New Jersey, and on August 26, 2020 Jimmie A.
McAdams and Judy P. McAdams commenced a class action lawsuit
against the Company and its Executive Chairman and Chief Executive
Officer in Federal District Court in the Southern District of New
York.
The Securities Class Actions seek damages and other relief based on
alleged violations of federal securities laws in the context of the
DFC Announcement of the potential DFC Loan and DFC Pharmaceutical
Project.
The Securities Class Actions were transferred to the Federal
District Court for the Western District of New York and were
consolidated into a single proceeding on June 22, 2021.
On August 2, 2021, Les Investissements Kiz and UAT Trading Service
were appointed by the court to serve as lead plaintiff for the
Consolidated Securities Class Action.
Eastman said, "The Company intends to vigorously defend itself
against the Consolidated Securities Class Action."
Eastman Kodak Company is a global technology company focused on
print and advanced materials and chemicals. Kodak provides
industry-leading hardware, software, consumables and services
primarily to customers in commercial print, packaging, publishing,
manufacturing and entertainment. Kodak is committed to
environmental stewardship and ongoing leadership in developing
sustainable solutions.
EVERSIDE HEALTH: Horton Files Suit in Cal. Super. Ct.
-----------------------------------------------------
A class action lawsuit has been filed against Everside Health, LLC,
et al. The case is styled as Stacie Horton, individually and on
behalf of all others similarly situated v. Everside Health, LLC,
HEALTHSTAT WELLNESS, INC., Case No. BCV-21-102008 (Cal. Super. Ct.,
Kern Cty., Aug. 30, 2021).
The case type is stated as "Other Employment - Civil Unlimited."
Everside Health -- https://www.eversidehealth.com/ -- is a direct
primary care provider offering convenient on-site, near-site, and
virtual care for its members.[BN]
The Plaintiff is represented by:
Jessica L. Campbell, Esq.
AEGIS LAW FIRM
9811 Irvine Center Dr., Ste. 100
Irvine, CA 92618
Phone: 949-379-6250
FENNEC PHARMA: Bid to Dismiss Chapman Putative Class Suit Pending
-----------------------------------------------------------------
Fennec Pharmaceuticals Inc. said in its Form 10-Q Report filed with
the Securities and Exchange Commission on August 10, 2021, for the
quarterly period ended June 30, 2021, that the motion to dismiss
filed in the putative class action lawsuit, Chapman v. Fennec
Pharmaceuticals Inc., is still pending.
On September 2, 2020, a putative class action lawsuit, Chapman v.
Fennec Pharmaceuticals Inc., was filed against the company, its
Chief Executive Officer, Rostislav Raykov, and its Chief Financial
Officer, Robert Andrade, in the United States District Court for
the Middle District of North Carolina.
The complaint alleged that prior to our August 10, 2020 receipt of
a Complete Response Letter (CRL) from the Food and Drug
Administration (FDA) for PEDMARKTM, the company made materially
false or misleading statements and failed to disclose material
facts about the status of our PEDMARKTM manufacturing facility, its
compliance with current good manufacturing practices, and the
impact its status and compliance would have on regulatory approval
for PEDMARKTM.
On December 3, 2020, the court appointed a lead plaintiff to
represent the putative class.
On February 1, 2021, the lead plaintiff filed an amended complaint.
The amended complaint added members of the company's board of
directors as defendants, asserts a putative class period from
December 10, 2018 through August 10, 2020, makes allegations
similar to those in the original complaint, and claims the
defendants violated Section 10(b) of the Securities Exchange Act of
1934.
On March 3, 2021, of the company and the other defendants filed a
motion to dismiss the amended complaint. On April 2, 2021,
plaintiffs filed an opposition to the motion. On April 16, 2021, of
the company and the other defendants filed a reply brief in support
of the motion.
The court has not scheduled argument or issued an order on the
motion.
Fennec said, "We believe that the suit is without merit and intend
to defend it vigorously. We cannot predict the outcome of this
suit. Failure by us to obtain a favorable resolution of the suit
could have a material adverse effect on our business, results of
operations and financial condition. We have not recorded a
liability as of June 30, 2021, because we believe a potential loss
is not probable or reasonably estimable given the preliminary
nature of the proceedings."
Fennec Pharmaceuticals Inc. is a biopharmaceutical company focused
on the development of Sodium Thiosulfate for the prevention of
platinum-induced ototoxicity in pediatric cancer patients.
GENERAC HOLDINGS: Schall Law Firm Reminds of Oct. 19 Deadline
-------------------------------------------------------------
The Schall Law Firm, a national shareholder rights litigation firm,
reminds investors of a class action lawsuit against Generac
Holdings Inc. ("Generac" or "the Company") (NYSE:GNRC) for
violations of Secs. 10(b) and 20(a) of the Securities Exchange Act
of 1934 and Rule 10b-5 promulgated thereunder by the U.S.
Securities and Exchange Commission.
Investors who purchased the Company's securities between February
23, 2021 and July 29, 2021, inclusive (the "Class Period"), are
encouraged to contact the firm before October 19, 2021.
We also encourage you to contact Brian Schall of the Schall Law
Firm, 2049 Century Park East, Suite 2460, Los Angeles, CA 90067, at
310-301-3335, to discuss your rights free of charge. You can also
reach us through the firm's website at www.schallfirm.com, or by
email at brian@schallfirm.com.
The class, in this case, has not yet been certified, and until
certification occurs, you are not represented by an attorney. If
you choose to take no action, you can remain an absent class
member.
According to the Complaint, the Company made false and misleading
statements to the market. Generac's portable generators suffered
from an unreasonable risk of injuring their operators and the
general public. The Company had received reports of at least seven
finger amputations and one crushed finger related to its
generators. The Company ended sales of certain generators in the
U.S. and Canada in June 2021, and subsequently recalled generators
that were already sold. These actions came before the busy
hurricane and wildfire seasons which the Company touted as strong
sales periods. Based on these facts, the Company's public
statements were false and materially misleading throughout the
class period. When the market learned the truth about Generac,
investors suffered damages.
Join the case to recover your losses.
The Schall Law Firm represents investors around the world and
specializes in securities class action lawsuits and shareholder
rights litigation.
This press release may be considered Attorney Advertising in some
jurisdictions under the applicable law and rules of ethics.
Contacts:
The Schall Law Firm
Brian Schall, Esq.,
www.schallfirm.com
Office: 310-301-3335
info@schallfirm.com [GN]
GRAND CARIBBEAN: Winters' Third Amended TCPA Complaint Dismissed
----------------------------------------------------------------
In the case, Richard Winters, Jr., et al., Plaintiffs v. Grand
Caribbean Cruises Incorporated, Defendant, Case No.
CV-20-00168-PHX-DWL (D. Ariz.), Judge Dominic W. Lanza of the U.S.
District Court for the District of Arizona granted Grand
Caribbean's motion to dismiss.
The Plaintiffs' Third Amended Complaint ("TAC") is dismissed for
lack of personal jurisdiction and for failure to state a claim
under Rule 12(b)(6) of the Federal Rules of Civil Procedure.
The case is a putative class action brought by Plaintiffs Richard
Winters, Jr., Joseph Brem, and David James against Defendant Grand
Caribbean for alleged violations of the Telephone Consumer
Protection Act ("TCPA"), 47 U.S.C. Section 227.
Winters resides in Mesa, Arizona. In approximately July 2019, a
"Telemarketing Agent contracted by" Grand Caribbean began calling
Winters' cell phone, without his prior consent, "in an attempt to
solicit him to purchase its services." Winters has been on the
National Do-Not-Call Registry since "at least June 2019." During
most if not all of the calls, Winters either heard a beep or a
pause before a representative of the Telemarketing Agent came on
the phone line.
Brem resides in Casa Grande, Arizona. In August 2019, the same
"Telemarketing Agent contacted Brem on his cellular telephone
number, in an attempt to solicit Brem to purchase Grand Caribbean's
services," without his prior consent. The "Telemarketing Agent used
a prerecorded voice to ask Brem several qualifying questions and
then transferred Brem" to a "live agent," who identified herself
and stated, "welcome to Grand Caribbean Cruises." Brem has been on
the Registry since "at least October 2017.
James resides in Buena Park, California. In approximately February
2020, "the Telemarketing Agent contacted James approximately 6-7
times on James's landline telephone number in an attempt to solicit
him to purchase Grand Caribbean's services," without his prior
consent. James has been on the Registry since "at least 2006."
On Jan. 22, 2020, the Plaintiffs initiated the action by filing a
complaint. On March 9, 2020, before Grand Caribbean responded to
the initial complaint, the Plaintiffs filed a First Amended
Complaint. On Aug. 12, 2020, with Grand Caribbean's consent, the
Plaintiffs filed the Second Amended Complaint ("SAC"). On Aug. 26,
2020, Grand Caribbean filed a motion to dismiss the SAC for lack of
personal jurisdiction and for failure to state a claim. On Nov. 5,
2020, Grand Caribbean filed a motion to dismiss Counts One and Two
of the SAC for lack of subject matter jurisdiction.
In February 2021, the Court granted Grand Caribbean's motion to
dismiss the Plaintiffs' SAC because the Plaintiffs failed to allege
facts that would support the exercise of personal jurisdiction over
Grand Caribbean in Arizona. The Court granted the Plaintiffs leave
to amend, and the Plaintiffs filed their TAC.
Now pending before the Court is Grand Caribbean's motion to dismiss
the TAC for lack of personal jurisdiction and for failure to state
a claim under Rule 12(b)(6).
Discussion
Grand Caribbean moves to dismiss the TAC in its entirety for lack
of personal jurisdiction and for failure to state a claim. Because
jurisdiction is a threshold question and because the issue of
personal jurisdiction is dispositive, the Court begins there. The
Plaintiffs concede that Grand Caribbean, a Florida company, is not
subject to general jurisdiction in Arizona. Thus, the Court must
apply the Ninth Circuit's three-part test to determine if Grand
Caribbean has sufficient contacts with Arizona to be subject to
specific personal jurisdiction: (1) The non-resident defendant must
purposefully direct his activities or consummate some transaction
with the forum or resident thereof; or perform some act by which he
purposefully avails himself of the privilege of conducting
activities in the forum, thereby invoking the benefits and
protections of its laws; (2) the claim must be one which arises out
of or relates to the defendant's forum-related activities; and (3)
the exercise of jurisdiction must comport with fair play and
substantial justice, i.e., it must be reasonable.
Analysis
The TAC alleges that Grand Caribbean is subject to personal
jurisdiction in Arizona by virtue of its agency relationship with
the Telemarketing Agent. Grand Caribbean disagrees, arguing that
the new factual allegations added to the TAC are conclusory and
remain insufficient to plausibly establish the existence of an
agency relationship. In response, the Plaintiffs defend the
sufficiency of their new allegations. They also argue that "agency
is an incredibly fact intensive inquiry that is not suitable for
full adjudication on a Motion to Dismiss." Grand Caribbean replies
that the Plaintiffs' new allegations fail to establish the element
of control and contain only "buzz words" and "unsupported and
implausible allegations about an imagined contract with an imagined
'Telemarketing Agent.'"
Judge Lanza concludes that the Plaintiffs have failed to plead
facts that plausibly suggest an agency relationship exists between
Grand Caribbean and the caller. Although the Plaintiffs argue that
agency is a fact-intensive inquiry that should not resolved at the
motion-to-dismiss stage, courts routinely do so. Nor have the
Plaintiffs requested jurisdictional discovery. The Judge thus
grants Grand Caribbean's motion to dismiss the TAC.
The Plaintiffs request leave to amend their complaint in the event
of dismissal. Although courts generally grant leave to amend with
"extreme liberality," "a district court may dismiss without leave
where amendment would be futile." Additionally, "the district
court's discretion to deny leave to amend is particularly broad
where," as in the case, the "plaintiff has previously amended the
complaint."
Applying these standards, Judge Lanza denies the Plaintiffs'
amendment request. He explains that the Court made clear in its
previous order that the Plaintiffs needed to provide specific,
non-conclusory factual allegations concerning Grand Caribbean's
right to control the alleged agent. It also made clear that
boilerplate, formulaic allegations of agency wouldn't be enough to
survive dismissal. The Court even identified judicial decisions
discussing the types of factual allegations that would be
sufficient on this issue. The absence of such facts in the TAC,
coupled with the absence of a request for jurisdictional discovery,
suggests that the Plaintiffs simply lack them.
Order
Accordingly, Grand Caribbean's motion to dismiss is granted. The
Clerk of Court will enter judgment accordingly and terminate the
action.
A full-text copy of the Court's Aug. 20, 2021 Order is available at
https://tinyurl.com/vne76d8w from Leagle.com.
HOBBY LOBBY: Class Settlement in Marcrum FUDTPA Suit Wins Final Nod
-------------------------------------------------------------------
In the case, STEVEN D. MARCRUM, Plaintiff v. HOBBY LOBBY STORES,
INC., Defendant, Case No. 2:18-cv-01645-JHE (N.D. Ala.), Magistrate
Judge John H. England, III, of the U.S. District Court for the
Northern District of Alabama, Southern Division, granted in part
and denied without prejudice the Plaintiffs' Unopposed Motion for
Final Approval of Class Action Settlement and Petition for Award of
Fees and Expenses.
The case is a putative class action concerning the way Hobby Lobby
administered coupon discounts. Specifically, the remaining class
claims relate to the way Hobby Lobby applied a weekly 40% off
coupon to the marked prices on furniture it sells, which Marcrum
contends violates the Florida Unfair and Deceptive Trade Practices
Act ("FUDTPA"). The case was originally filed in the Northern
District of Florida, but was transferred to the Court on Oct. 9,
2018, and consolidated with Phillips, et al. v. Hobby Lobby Stores,
Inc., Case No. 2:16-cv-00837-JHE.
Judge England preliminarily approved the settlement in the class
action between Plaintiff Marcrum, and on behalf of his class, and
Defendant Hobby Lobby. Under the terms of the preliminary approval
order, notice was given to all the members of the class.
The Plaintiff has now filed an unopposed motion for final approval
of the settlement, along with a petition for attorney fees. Hobby
Lobby has filed a brief in support of that motion. As required by
Federal Rule of Civil Procedure 23(e)(2), Judge England held a
fairness hearing on Aug. 5, 2021.
Under the Settlement Agreement, Hobby Lobby has agreed to pay $14
in cash to members of the Settlement Class. The Class Counsel
requests $425,000 in fees, expenses, and potential class
representative awards. According to the Class Counsel, the expenses
in the case are, to date, $101,538.21. That leaves $323,461.79 for
an attorneys' fee award and an incentive payment to the class
representatives, if approved.
Following the hearing, and after considering the parties' arguments
and the record as a whole, Judge England granted in part and denied
without prejudice in part the Plaintiff's unopposed motion for
final approval of that settlement, along with a petition for
attorney fees.
Under Fed. R. Civ. P. 23, Judge England certified, for settlement
purposes, the following Settlement Class: All persons or entities
who purchased furniture at a Hobby Lobby store in Florida between
the dates of June 4, 2014 and Oct. 2, 2017, and in connection with
that purchase, used a Hobby Lobby 40% coupon.
Judge England appointed Marcrum as the Settlement Class
Representative, and the firms of Wiggins Childs Pantazis Fisher &
Goldfarb, LLC, the Armstrong Law Center, LLC, and the Cartwright
Law Center, LLC, as the Class Counsel.
With respect to the Class Representative Incentive Award, it is
something of an open question in the circuit whether incentive
awards are available. A divided panel of the Eleventh Circuit
recently held in Johnson v. NPAS Sols., LLC, 975 F.3d 1244, 1260
(11th Cir. 2020), that such awards are prohibited. However, an
Eleventh Circuit judge has withheld the mandate, and the plaintiff
has sought en banc review. In this posture, the Eleventh Circuit's
decision is not final.
At the fairness hearing, Judge England confirmed that Hobby Lobby
has no opposition to carving out the issue of class representative
award. Accordingly, the request for incentive awards is denied
without prejudice. He will retain jurisdiction over the matter
until the ultimate disposition of NPAS Sols. is known, either
through a final decision of the Eleventh Circuit or a final
decision of the United States Supreme Court. If NPAS Sols. is
reversed after that final decision, Plaintiff may file a motion
renewing his request for approval of class representative awards.
With respect to the attorneys' fees, Judge England approved the
$200,000 payment to the Class Counsel for attorney fees and
expenses in the case. Attorney Brian Clark spent over 770 hours on
both cases, and the Wiggins, Childs firm spent over 850 hours on
both cases. A rate of $550 per hour for Mr. Clark's time is
reasonable in the case. Mr. Clark has been practicing law in
Alabama for thirty years, and has handled many complex,
document-intensive cases including class actions. He previously had
a class settlement approved in the District in which his time was
calculated at $600 per hour.
Judge England finds Mr. Clark's rate of $550 per hour in the case
is justified. Mr. Clark's portion of the Wiggins, Childs lodestar
is 785 hours, to date, which computes to $431,750, is far in excess
of the $323,441.69 requested in fees for both cases. In addition,
Darrell Cartwright expended 126.2 hours in this case at $425, per
hour, for a total of $53,635. The total lodestar in the cases is
$415,385. This far exceeds the $323,441.69 ($425,000 less expenses)
requested for both cases.
As part of the Settlement, the parties agreed that Hobby Lobby
could submit for judicial approval a proposed new coupon with
revised terms. The Plaintiff takes no position as to whether the
revised coupon should be approved. Judge England, therefore,
approves the terms of the proposed new coupon.
The Court will retain jurisdiction over the case as stated. A
separate order will be entered.
A full-text copy of the Court's Aug. 20, 2021 Memorandum Opinion &
Order is available at https://tinyurl.com/2xe7ejfk from
Leagle.com.
HOBBY LOBBY: Class Settlement in Phillips Suit Has Final Approval
-----------------------------------------------------------------
In the case, DAVID PHILLIPS, et al., Plaintiffs v. HOBBY LOBBY
STORES, INC., Defendant, Case No. 2:16-cv-00837-JHE (N.D. Ala.),
Magistrate Judge John H. England, III, of the U.S. District Court
for the Northern District of Alabama, Southern Division, granted in
part and denied without prejudice in part the Plaintiffs' Unopposed
Motion for Final Approval of Class Action Settlement and Petition
for Award of Fees and Expenses.
The case is a putative class action concerning the way Hobby Lobby
administered coupon discounts. Specifically, the remaining class
claims relate to the way Hobby Lobby applied a weekly 40% off
coupon to the marked prices on furniture it sells, which Browning
contends violates the Alabama Deceptive Trade Practices Act
("ADTPA").
Judge England preliminarily approved the settlement in the class
action between Plaintiff Browning, as the Executor of the Estate of
Diane Browning, and on behalf of her class, and Defendant Hobby
Lobby. Under the terms of the preliminary approval order, notice
was given to all the members of the class.
The Plaintiff has now filed an unopposed motion for final approval
of that settlement, along with a petition for attorney fees. Hobby
Lobby has filed a brief in support of that motion. As required by
Federal Rule of Civil Procedure 23(e)(2), Judge England held a
fairness hearing on Aug. 5, 2021.
Under the Settlement Agreement, Hobby Lobby has agreed to pay $14
in cash to members of the Settlement Class. Further, Hobby Lobby
will provide a $25 gift card to Alabama Settlement Class Members,
which functions essentially as cash at a Hobby Lobby store and
which is fully transferrable to any other person.
The Class Counsel requests $425,000 in fees, expenses, and
potential class representative awards. According to the Class
Counsel, the expenses in the case are, to date, $101,538.21. That
leaves $323,461.79 for an attorneys' fee award and an incentive
payment to the class representatives, if approved.
Following the hearing, and after considering the parties' arguments
and the record as a whole, the Judge granted in part and denied
without prejudice in part the Plaintiff's unopposed motion for
final approval of that settlement, along with a petition for
attorney fees.
Under Fed. R. Civ. P. 23, the Judge certified, for settlement
purposes, the following Settlement Class: All persons or entities
who purchased furniture at a Hobby Lobby store in Alabama between
the dates of May 19, 2015 and Oct. 2, 2017, and in connection with
that purchase, used a Hobby Lobby 40% coupon.
The Judge appointed Browning as the Settlement Class Representative
and the firms of Wiggins Childs Pantazis Fisher & Goldfarb, LLC,
the Armstrong Law Center, LLC, and the Cartwright Law Center, LLC,
as the Class Counsel.
With respect to the class representative award, it is something of
an open question in the circuit whether incentive awards are
available. A divided panel of the Eleventh Circuit recently held in
Johnson v. NPAS Sols., LLC, 975 F.3d 1244, 1260 (11th Cir. 2020),
that such awards are prohibited. However, an Eleventh Circuit judge
has withheld the mandate, and the plaintiff has sought en banc
review. In this posture, the Eleventh Circuit's decision is not
final.
At the fairness hearing, Judge England confirmed that Hobby Lobby
has no opposition to carving out the issue of a class
representative award. Accordingly, the request for incentive awards
is denied without prejudice. He undersigned will retain
jurisdiction over this matter until the ultimate disposition of
NPAS Sols. is known, either through a final decision of the
Eleventh Circuit or a final decision of the United States Supreme
Court. If NPAS Sols. is reversed after that final decision, the
Plaintiff may file a motion renewing her request for approval of
class representative awards.
Judge England approved the $225,000 payment to the Class Counsel
for attorney fees and expenses in the case. Attorney Brian Clark
spent over 770 hours on both cases, and the Wiggins, Childs firm
spent over 850 hours on both cases. A rate of $550 per hour for Mr.
Clark's time is reasonable in the case. Mr. Clark has been
practicing law in Alabama for 30 years, and has handled many
complex, document-intensive cases including class actions. He
previously had a class settlement approved in the District in which
his time was calculated at $600 per hour.
The Judge finds Mr. Clark's rate of $550 per hour in the case is
justified. Mr. Clark's portion of the Wiggins, Childs lodestar is
785 hours, to date, which computes to $431,750, is far in excess of
the $323,441.69 requested in fees for both cases. In addition,
Darrell Cartwright expended 126.2 hours in the case at $425, per
hour, for a total of $53,635. The total lodestar in the cases is
$415,385. This far exceeds the $323,441.69 ($425,000 less expenses)
requested for both cases.
As part of the Settlement, the parties agreed that Hobby Lobby
could submit for judicial approval a proposed new coupon with
revised terms. The Plaintiff takes no position as to whether the
revised coupon should be approved. Judge England approved the terms
of the proposed new coupon.
The Court will retain jurisdiction over the case as stated. A
separate order will be entered.
A full-text copy of the Court's Aug. 20, 2021 Memorandum Opinion &
Order is available at https://tinyurl.com/4d8sb3v2 from
Leagle.com.
HOME DEPOT: Stipulated Protective Order Entered in Schilling Suit
-----------------------------------------------------------------
Magistrate Judge Michael R. Wilner of the U.S. District Court for
the Central District of California entered a Stipulated Protective
Order in the case, RICHARD SCHILLING, individually, and on behalf
of other members of the general public similarly situated,
Plaintiff v. HOME DEPOT U.S.A., INC., a Delaware corporation,
Defendant, Case No. CV 20-08740 FMO-MRWx (C.D. Cal.).
It is a wage-and-hour putative class action that principally
pertains to compensation for allegedly mandatory health screening
questionnaires pertaining to the Covid-19 pandemic. As such,
disclosure and discovery activity in the action are likely to
involve production of confidential, proprietary, medical, financial
or other private information for which special protection from
public disclosure and from use for any purpose other than
prosecuting the litigation may be warranted.
Good cause exists to protect the good faith designation of each of
the categories of documents identified, as prejudice or harm to the
Plaintiff and/or the Defendant and/or to one or more third parties
may result if no protective order is granted. In particular,
business competitors of the Defendant could obtain an unfair
advantage, the Defendant could be economically prejudiced, and the
privacy rights of the Defendant's current and/or former employees
or contractors could be violated if any of the confidential
information identified is published for purposes outside those
permitted in the Stipulated Protective Order. The purpose of the
Stipulated Protective Order is to protect any legitimately
designated confidential business, employee, and privacy-protected
information to be produced in the action from public disclosure.
The protections conferred by the Stipulation and Order cover not
only Protected Material, but also (1) any information copied or
extracted from Protected Material; (2) all copies, excerpts,
summaries, or compilations of Protected Material; and (3) any
testimony, conversations, or presentations by Parties or their
Counsel that might reveal Protected Material. Any use of Protected
Material at trial will be governed by the orders of the trial
judge. The Order does not govern the use of Protected Material at
trial.
Even after final disposition of the litigation, the confidentiality
obligations imposed by the Order will remain in effect until a
Designating Party agrees otherwise in writing or a court order
otherwise directs. Final disposition will be deemed to be the later
of (1) dismissal of all claims and defenses in the Action, with or
without prejudice; and (2) final judgment after the completion and
exhaustion of all appeals, rehearings, remands, trials, or reviews
of the Action. The Court retains jurisdiction over the parties for
enforcement of the provisions of the Order following the conclusion
of the action.
Any Party or Non-Party may challenge a designation of
confidentiality at any time that is consistent with the Court's
Scheduling Order.
If a Receiving Party learns that, by inadvertence or otherwise, it
has disclosed Protected Material to any person or in any
circumstance not authorized under the Stipulated Protective Order,
the Receiving Party must immediately (a) notify in writing the
Designating Party of the unauthorized disclosures, (b) use its best
efforts to retrieve all unauthorized copies of the Protected
Material, (c) inform the person or persons to whom unauthorized
disclosures were made of all the terms of this Order, and (d)
request such person or persons to execute the "Acknowledgment and
Agreement to Be Bound."
A Party that seeks to file under seal any Protected Material must
comply with Civil Local Rule 79-5.
Not later than the deadline for filing pretrial disclosures
pursuant to Rule 26(a)(3) of the Federal Rules of Civil Procedure,
the Parties will meet and confer regarding the procedures for use
of Protected Material at trial and will move the Court for entry of
an appropriate order. In the event that the Parties cannot agree
upon the procedures for use of Protected Material at trial, each
Party will include a notation in its pretrial disclosures that the
intended disclosure contains Protected Material. The Parties may
object to the Disclosure of Protected Material pursuant to Rule
26(a)(3)(B) of the Federal Rules of Civil Procedure, and the Court
will resolve any outstanding disputes over such Disclosure.
After the final disposition of the Action, within 60 days of a
written request by the Designating Party, each Receiving Party must
return all Protected Material to the Producing Party or destroy
such material.
Any willful violation of the Order may be punished by civil or
criminal contempt proceedings, financial or evidentiary sanctions,
reference to disciplinary authorities, or other appropriate action
at the discretion of the Court.
A full-text copy of the Court's Aug. 20, 2021 Protective Order is
available at https://tinyurl.com/zmc23hts from Leagle.com.
Bevin Allen Pike -- Bevin.Pike@CapstoneLawyers.com -- Daniel
Jonathan -- Daniel.Jonathan@CapstoneLawyers.com -- Trisha K. Monesi
-- Trisha.Monesi@CapstoneLawyers.com -- Capstone Law APC, in Los
Angeles, California, Attorneys for Plaintiff Richard Schilling.
Evan R. Moses -- evan.moses@ogletree.com -- Aaron H. Cole --
aaron.cole@ogletree.com -- Melis Atalay --
melis.atalay@ogletree.com -- Ogletree, Deakins, Nash, Smoak &
Stewart, P.C., in Los Angeles, California, Attorneys for Defendant
Home Depot U.S.A., Inc.
IANTHUS CAPITAL: Bid to Nix New York Putative Class Suit Pending
----------------------------------------------------------------
iAnthus Capital Holdings, Inc. said in its Form 10-Q Report filed
with the Securities and Exchange Commission on August 10, 2021, for
the quarterly period ended June 30, 2021, that the motion to
dismiss a consolidated putative class action suit, is pending.
On April 20, 2020, a shareholder filed a class action lawsuit with
the United States District Court for the Southern District of New
York against the Company and is seeking damages for an unspecified
amount against the Company, its former Chief Executive Officer, its
current Chief Financial Officer and others for alleged false and
misleading statements regarding certain proceeds from the issuance
of long-term debt, that were held in escrow to make interest
payments in the event of default on such long-term debt.
On July 9, 2020, the United States District Court for the Southern
District of New York issued an order consolidating the Class Action
Lawsuit and the Hi-Med Complaint and appointed a lead plaintiff.
On September 4, 2020, the Lead Plaintiff filed a consolidated
amended class action lawsuit against the Company. On November 20,
2020, the Company and its Chief Financial Officer filed a Motion to
Dismiss the Amended Complaint.
On January 8, 2021, the Lead Plaintiff filed an opposition to the
Motion to Dismiss the Amended Complaint. The Company and its Chief
Financial Officer's reply to the opposition was filed on February
22, 2021.
The Motion to Dismiss remains pending before the United States
District Court for the Southern District of New York.
iAnthus Capital Holdings, Inc. owns and operates licensed cannabis
cultivation, processing and dispensary facilities throughout the
United States, providing investors diversified exposure to the U.S.
regulated cannabis industry. The company is based in New York, New
York.
IANTHUS CAPITAL: Ontario Shareholder Purported Class Suit Ongoing
-----------------------------------------------------------------
iAnthus Capital Holdings, Inc. said in its Form 10-Q Report filed
with the Securities and Exchange Commission on August 10, 2021, for
the quarterly period ended June 30, 2021, that the company
continues to defend a purported shareholder class action suit in
Ontario Superior Court of Justice in Toronto.
On July 23, 2020, a proposed class action was issued in the Ontario
Superior Court of Justice in Toronto against the Company, the
Company's former Chief Executive Officer, and the Company's Chief
Financial Officer.
The plaintiff seeks to certify the proposed class action on behalf
of all persons, other than any executive level employee of the
Company and their immediate families, who acquired the Company's
common shares in the secondary market on or after May 30, 2019, and
who held some or all of those securities until after the close of
trading on April 5, 2020.
Among other things, the plaintiff alleges statutory and common law
misrepresentation, and seeks an unspecified amount of damages
together with interest and costs.
The certification motion and leave to proceed motion for a
secondary market claim under the Securities Act (Ontario) have not
yet been scheduled.
iAnthus Capital Holdings, Inc. owns and operates licensed cannabis
cultivation, processing and dispensary facilities throughout the
United States, providing investors diversified exposure to the U.S.
regulated cannabis industry. The company is based in New York, New
York.
IANTHUS CAPITAL: Zaboroski Purported Class Suit Underway
--------------------------------------------------------
iAnthus Capital Holdings, Inc. said in its Form 10-Q Report filed
with the Securities and Exchange Commission on August 10, 2021, for
the quarterly period ended June 30, 2021, that the company
continues to defend a purported class action suit initiated by Sean
Zaboroski.
On April 13, 2021, Sean Zaboroski, a shareholder of the Company,
filed a Statement of Claim in the Ontario Superior Court of Justice
for a putative class action lawsuit against the Company, its former
Chief Executive Officer, its current Interim Chief Executive
Officer, and its current Board of Directors alleging gross
negligence on the part of the iAnthus Defendants.
Zaboroski seeks to certify the proposed class on behalf of all
persons, except the Company's and Gotham Green Partners LLC's
affiliates, agents, officers, directors, senior employees, legal
representatives, heirs, predecessors, successors and assigns, and
any member of the individual defendants' immediate families and any
entity in which any of the foregoing has or had an interest, who
were non-debenture holding shareholders of the Company from the
date the Company defaulted on its obligations under the Secured
Notes to the date the Plan of Arrangement is implemented (the
"Proposed Class").
The Proposed Class does not include shareholders who acquired the
Company's shares in the secondary market on or after May 30, 2019
and who held some or all of those securities until after the close
of trading on April 5, 2020.
Zaboroski seeks an unspecified amount of damages, including
punitive damages, together with costs and interest.
Zaboroski's certification motion has not yet been scheduled.
iAnthus Capital Holdings, Inc. owns and operates licensed cannabis
cultivation, processing and dispensary facilities throughout the
United States, providing investors diversified exposure to the U.S.
regulated cannabis industry. The company is based in New York, New
York.
JAGUAR LAND: Faces Class Action in N.J. Over Diesel Filter Defects
------------------------------------------------------------------
David A. Wood, writing for CarComplaints.com, reports that a Land
Rover class action lawsuit alleges defects in the diesel
particulate filter (DPF) cause it to become clogged in stop-and-go
traffic.
New Jersey plaintiff Candace Nejat owns a 2017 Land Rover Range
Rover Sport and alleges the vehicle has been serviced by a Land
Rover dealer five times between December 22, 2017, and April 23,
2021.
According to court documents, the plaintiff's Range Rover has a
diminished value of $13,877.64 due to the alleged diesel filter
problems.
The Land Rover class action lawsuit includes:
"All persons who purchased or leased a diesel engine-powered
2017-2021 Land Rover Range Rover or other diesel engine-powered
Jaguar Land Rover vehicle equipped with a substantially similar DPF
system within the United States."
The plaintiff says the check engine light activated when the
vehicle had about 37,300 on the odometer, with the warning light
indicating the diesel exhaust fuel filter was full.
A dealer confirmed the diesel particulate filter was full and a
dynamic regeneration was performed and technicians cleared the
trouble codes from the Land Rover Range Rover Sport.
But about 600 miles later the DPF allegedly clogged again and
caused the warning light to illuminate. The lawsuit says a dealer
technician found the "diesel particulate filter beyond regeneration
capabilities" and proceeded to "remove and replace particulate
filter."
According to the class action, the Range Rover Sport has been at
the dealer about 22 days due to diesel particulate filter
problems.
Purpose of the Land Rover Diesel Particulate Filter
A diesel vehicle with a DPF allegedly has better emissions because
the filter catches and stores soot particles from the exhaust. But
the particles must be burned away through regeneration to keep the
DPF clean.
Regeneration occurs by driving long enough at highway speeds, but
the Land Rover class action alleges this won't help with vehicles
driven in stop-and-go traffic.
And although the diesel vehicles include warning systems for the
diesel particulate filters, the lawsuit alleges the systems can
activate too late. This allegedly causes replacements of the
filters.
The class action lawsuit says Land Rover acts out of "deceptive
motives" and has failed to recall the vehicles to repair the
alleged diesel particulate filter problems.
Land Rover has responded to similar customer complaints in the past
by saying all DPFs are cleaned the same way (prolonged highway
driving) no matter which automaker made the diesel vehicle.
The Land Rover class action lawsuit was filed in the U.S. District
Court for the District of New Jersey: Nejat, et al., v. Jaguar Land
Rover North America, LLC, et al.
The plaintiff is represented by the Law Office of Lewis G. Adler,
and Perlman DePetris Consumer Law. [GN]
LYFT INC: N.D. California Certifies Class in Securities Suit
------------------------------------------------------------
In the case, IN RE LYFT INC. SECURITIES LITIGATION, Case No.
19-cv-02690-HSG (N.D. Cal.), Judge Haywood S. Gilliam, Jr., of the
U.S. District Court for the Northern District of California grants
the Plaintiffs' motion for class certification.
On April 16, 2021, the Plaintiff filed the operative consolidated
complaint against Defendant Lyft, Logan Green, Co-Founder, CEO, and
Director on Lyft's board of directors, John Zimmer, Co-Founder,
President and Vice Chairman of the Board, Brian Roberts, CFO,
Prashant (Sean) Aggarwal, Chairman of the Board, Board Members Ben
Horowitz, Valerie Jarrett, David Lawee, Hiroshi Mikitani, Ann
Miura-Ko, and Mary Agnes (Maggie) Wilderotter.
Lyft is a rideshare company that "sought to revolutionize
transportation by launching its peer-to-peer marketplace for
on-demand ridesharing." It registered its issuance of common stock
"under the Securities Act of 1933, as amended, pursuant to Lyft's
registration statement on Form S-1 (File No. 333-229996) declared
effective on March 28, 2019." Lyft offered 32.5 million shares to
the public through an initial public offering ("IPO") at a price of
$72 per share, generating total proceeds of $2.34 billion.
According to Plaintiff, Lyft made representations in the IPO
Registration Statement and Prospectus filed in connection with the
IPO that "were materially misleading, omitted information necessary
in order to make the statements not misleading, and omitted
material facts required to be stated therein."
On March 4, 2020, the Court appointed Rick Keiner as the Lead
Plaintiff. On May 14, 2020, the Defendants moved to dismiss the
Plaintiff's consolidated amended class action complaint. On Sept.
8, 2020, the Court granted in part and denied in part the
Defendants' motion.
On Sept. 25, 2020, the Plaintiff filed the instant motion seeking
to certify the following class: "All persons and entities who
purchased or otherwise acquired the common stock of Lyft issued and
traceable to the IPO Registration Statement."
The Plaintiff also requests that the Court appoints him as the
Class Representative and appoints Block & Leviton as the Class
Counsel. The Defendants assert that the Plaintiff fails to the meet
the requirements of Federal Rule of Civil Procedure 23(b) and that
the class definition should be modified.
The Plaintiff seeks certification under Rule 23(b)(3), which
requires the Plaintiff to show predominance and superiority. The
Defendants assert that the Plaintiff fails to meet either
requirement because individual inquiries are required to determine
whether investors had actual knowledge of the allegedly omitted
facts.
Judge Giliam holds that the Plaintiffs have met the Rule 23(a) and
23(b)(3) requirements. Therefore, he grants the Plaintiffs' motion
to certify the Class.
Accordingly, he certifies the following class: "All persons and
entities who purchased or otherwise acquired the common stock of
Lyft issued and traceable to the IPO Registration Statement."
The Judge appoints Plaintiff Keiner as the lass Representative and
appoints Block and Leviton LLP as the Class Counsel. He set a
telephonic case management conference for Aug. 31, 2021, at 2:00
p.m. He directs the parties to submit a joint case management
statement. All counsel will use the following dial-in information
to access the call: Dial-In: 888-808-6929; Passcode: 6064255. For
call clarity, parties will not use speaker phone or earpieces for
these calls, and where at all possible, parties will use
landlines.
A full-text copy of the Court's Aug. 20, 2021 Order is available at
https://tinyurl.com/2sjyrbdz from Leagle.com.
MASONITE INT'L: Bid to Stay Putative Class Suit in Canada Pending
-----------------------------------------------------------------
Masonite International Corporation said in its Form 10-Q Report
filed with the Securities and Exchange Commission on August 10,
2021, for the quarterly period ended July 4, 2021, that the motion
to stay filed in the putative class action antitrust case pending
in Quebec, Canada, is still pending.
With respect to the putative class action antitrust case pending in
Quebec, Canada, all parties in the Quebec proceeding filed a motion
with the Quebec court seeking to stay the proceeding on December
22, 2020.
The Quebec court has not yet released its decision regarding this
motion.
Masonite International Corporation designs, manufactures, and
distributes interior and exterior doors for the new construction
and repair, renovation, and remodeling sectors of the residential
and non-residential building construction markets worldwide.
Masonite International Corporation was founded in 1925 and is
headquartered in Tampa, Florida.
MASONITE INT'L: Final Judgments Entered in Virginia Antitrust Suits
-------------------------------------------------------------------
Masonite International Corporation said in its Form 10-Q Report
filed with the Securities and Exchange Commission on August 10,
2021, for the quarterly period ended July 4, 2021, that final
judgments have been entered in the putative class action antitrust
cases pending in the Eastern District of Virginia.
With respect to the putative class action antitrust cases pending
in the Eastern District of Virginia, at a hearing held on June 2,
2021, the Court stated that it would grant final approval of the
settlement with the direct purchaser plaintiffs, which it did in a
written order issued the next day.
Subsequently: (i) the company paid $30.75 million in June 2021,
representing the remainder of the previously agreed upon settlement
that had been accrued for the direct purchaser settlement within
accrued expenses in the condensed consolidated balance sheets, and
(ii) the Court entered final judgment of dismissal as to defendants
in the direct purchaser case.
Additionally, at a hearing held on July 26, 2021, the Court stated
that it would grant final approval of the settlement with the
indirect purchaser plaintiffs, which it did in a written order
issued the following day.
Subsequently: (i) the company paid $9.25 million in August 2021,
representing the remainder of the previously agreed upon settlement
that had been accrued for the indirect purchaser settlement within
accrued expenses in the condensed consolidated balance sheet, and
(ii) the Court entered final judgment of dismissal as to defendants
in the indirect purchaser case.
Masonite International Corporation designs, manufactures, and
distributes interior and exterior doors for the new construction
and repair, renovation, and remodeling sectors of the residential
and non-residential building construction markets worldwide.
Masonite International Corporation was founded in 1925 and is
headquartered in Tampa, Florida.
MASONITE INT'L: Putative Class Suit Underway in Canada
------------------------------------------------------
Masonite International Corporation said in its Form 10-Q Report
filed with the Securities and Exchange Commission on August 10,
2021, for the quarterly period ended July 4, 2021, that the company
continues to defend a putative class action antitrust suit pending
in the Federal Court of Canada.
With respect to the putative class action antitrust case pending in
the Federal Court of Canada, the plaintiff served its certification
record on March 31, 2021.
The parties are conferring regarding a narrowing of issues and with
respect to a mutually agreeable timeline of steps leading up to the
plaintiff's certification motion.
The parties have written to the Federal Court advising that the
parties do not yet propose to set a timetable of steps leading to
the certification motion and requesting that the parties be
permitted to provide a further update to the Federal Court by
September 30, 2021.
Masonite said, "We have not recognized an expense related to
damages in connection with this matter because, although an adverse
outcome is reasonably possible, the amount or range of any
potential loss cannot be reasonably estimated."
Masonite International Corporation designs, manufactures, and
distributes interior and exterior doors for the new construction
and repair, renovation, and remodeling sectors of the residential
and non-residential building construction markets worldwide.
Masonite International Corporation was founded in 1925 and is
headquartered in Tampa, Florida.
MCCREARY VESELKA: Approval of Class Notice and Schedule Sought
--------------------------------------------------------------
In the class action lawsuit captioned as MARIELA PEREZ, on behalf
of herself and all others similarly situated, v. MCCREARY, VESELKA,
BRAGG & ALLEN, P.C. & MVBA, LLC, F/K/A MCCREARY, VESELKA BRAGG &
ALLEN, LLC, Case No. 1:19-cv-00724-RP (W.D. Tex.), the Plaintiff
asks the Court to enter an order granting approval of notice to the
class, and setting of a schedule for notification to the class.
The Plaintiff filed this action on behalf of herself and all others
similarly situated for alleged violations by Defendants of the Fair
Debt Collection Practices Act (FDCPA).
Pursuant to Rule 23(b)(3), by Order dated August 17, 2021, the
Court granted Plaintiff's motion for lass certification. The class
is defined as:
"(i) all persons at a Texas address (ii) to whom Defendants
sent a letter which were not returned as undeliverable (iv)
in an attempt to collect a debt incurred for personal,
family, or household purposes as shown by Defendants' or the
creditors' records (v) which includes a "Delinquency Date" of
more than four years prior to the date of the respective
letter during the one year prior to the filing of this
lawsuit."
A copy of the Plaintiff's motion dated Aug. 30, 2021 is available
from PacerMonitor.com at https://bit.ly/38wVkeA at no extra
charge.[CC]
The attorneys for the Plaintiff and the Putative Class, are:
Brent A. Devere, Esq.
1411 West Avenue, Suite No. 200
Austin, TX 78701
Telephone: (512) 457-8080
Facsimile: (512) 457-8060
E-mail: BDevere@1411west.com
- and -
O. Randolph Bragg, Esq.
HORWITZ, HORWITZ & ASSOCIATES
25 East Washington Street, Suite 900
Chicago, IL 60602
Telephone: (312) 372-8822
E-mail: rand@horwitzlaw.com
MDL 2437: Dr. Kneuper's Testimony in Antitrust Suit Partly Struck
-----------------------------------------------------------------
In the case, IN RE: DOMESTIC DRYWALL ANTITRUST LITIGATION, HOME
DEPOT U.S.A., INC., v. LAFARGE NORTH AMERICA INC., Civil Action MDL
2437, No. 18-5305 (E.D. Pa.), Judge Michael M. Baylson of the U.S.
District Court for the Eastern District of Pennsylvania grants
Lafarge's Motion to Exclude the Proposed Expert Testimony of Dr.
Kneuper in substantial part.
Background
In Fall 2011, several U.S. drywall manufacturers announced
substantial changes to their pricing, ending long-standing pricing
practices and arranging for a very large price increase to take
place in January 2012 and to be effective for the entire year.
Then, in fall 2012, these manufacturers again announced similar
price increases to take effect in January 2013.
The litigation started with class action complaints filed in
several district courts which were consolidated in the Court for
pretrial proceedings under 28 U.S.C. Section 1407.
Home Depot was a putative member of the alleged class of direct
purchasers who sued drywall manufacturer defendants. There were two
separate class settlements. Home Depot did not opt out of the first
settlement, but did opt out of the second class settlement, but
only as to a single defendant, Lafarge, on Oct. 16, 2016. Home
Depot subsequently filed the lawsuit against Lafarge in the
Northern District of Georgia on June 11, 2018. The case was then
transferred by the Judicial Panel of Multidistrict Litigation
("JPML") to continue as part of the ongoing pretrial proceedings in
the Court, over Home Depot's objection, on Dec. 10, 2018.
Home Depot's opt-out complaint against Lafarge includes very
similar allegations as those contained in the class action
complaint against the drywall manufacturers. Those allegations were
previously the subject of the second class-wide settlement for over
$200 million, which the Court approved.
Summarized briefly, Home Depot, purportedly the world's largest
purchaser and reseller of drywall, participated in the
direct-purchaser settlement class which was based upon the Court
having made a number of rulings -- some of which favored the
Plaintiffs and some of which favored the Defendants. Of utmost
importance now: (i) the Plaintiffs never sued Georgia-Pacific; (ii)
the Court granted summary judgment in favor CertainTeed; and (iii)
USG (and its subsidiaries USG Corp. and L&W) settled with the
direct-action plaintiffs before the Court certified a direct
purchaser class.
Despite these very relevant events in the same litigation, Dr.
Kneuper has made conclusions about these three entities --
CertainTeed, USG, and Georgia Pacific -- that are contrary to
undisputed facts and specific legal conclusions reached by the
Court.
The issue presented is whether, in the antitrust case, the
Plaintiff, Home Depot, can present opinions by an economist that:
1. ignore relevant facts and prior decisions in the same case;
and
2. ignore the benefits Home Depot received, as a member of a
settlement class, as it proceeds as an opt out against one
Defendant, Lafarge.
Analysis
I. Lafarge's Motion to Exclude the Testimony of Dr. Kneuper
Dr. Kneuper's report concerns the allegedly collusive behavior of
drywall manufacturers. Dr. Kneuper states in a summary: (i) The
drywall industry was susceptible to collusion by suppliers to fix
and raise prices; (ii) The drywall suppliers' behavior during the
2012-13 price increases was consistent with collusion and
inconsistent with independent competitive behavior; and, (ii)
Suppliers successfully raised prices that Home Depot and other
purchasers paid to levels inconsistent with competitive market
forces.
Lafarge identifies seven reasons why Dr. Kneuper's report should be
excluded. First, Lafarge argues that because of this Court's
granted summary judgment in favor of USG and CertainTeed, Dr.
Kneuper should not be permitted to testify that USG, CertainTeed,
or Georgia-Pacific engaged in explicit collusion, because there is
no "fact in issue" related to these entities. Second, Lafarge
argues that the lack of evidence regarding USG, CertainTeed, and
Georgia-Pacific excludes them from any alleged conspiracy. Third,
Lafarge contends that Dr. Kneuper's opinion on umbrella damages is
irrelevant, unreliable, and untimely. Fourth, Lafarge argues that
Dr. Kneuper should be precluded from opining on continuing effects
of the alleged conspiracy because his initial report did not
include them, Home Depot did not request discovery to support his
hypotheses, and he makes tentative assertions that do not pass
muster under Daubert.
Fifth, Lafarge contends that Dr. Kneuper should be precluded from
opining that Dr. McClave's regressions support his opinion because
he has not independently validated McClave's methodology. Sixth,
Lafarge argues that Dr. Kneuper goes beyond the territory of what
an antitrust economic expert may do. Seventh, Lafarge argues that
Dr. Kneuper should be precluded from opining on damages resulting
from L&W purchases because he failed to evaluate Home Depot's
automatically-passed-on price increases to customers. Lafarge
emphasizes that overall, each step of an expert's analysis must
satisfy the Daubert standard.
At a threshold level, Home Depot disputes that Dr. Kneuper's report
was untimely. It points out that Kneuper's initial report discloses
the opinion that USG and Georgia-Pacific colluded by matching the
behavior of other suppliers rather than competing. What Lafarge
calls untimely was Dr. Kneuper's answer to Dr. Willig in rebuttal.
And, even if the report was in error, it would be harmless.
Substantively, Home Depot contends that each of Dr. Kneuper's
conclusions is admissible and helpful to the jury. It argues that
Dr. Kneuper's report did not disregard the Court's prior summary
judgment ruling. Next, Home Depot contends that Lafarge's attack on
umbrella damages fails, because Mid-West Paper, which Lafarge
relies on, is no longer good law. It also disputes Lafarge's
position that Dr. Kneuper parroted Dr. McClave's opinion. As for
continuing effects, Home Depot argues that the fact Lafarge sold
its drywall business does not end the inquiry.
Finally, Home Depot argues that Lafarge's cost-plus argument does
not warrant excluding Dr. Kneuper's proposed testimony—Lafarge
does not offer evidence of the requirements for this exception to
apply, such as a contract entered into prior to the alleged
antitrust violation specifying the purchase/resale of a fixed
quantity of drywall on a cost-plus basis. Home Depot also
emphasizes that Third Circuit law liberally permits experts to
testify, and contends that Dr. Kneuper's opinion is the kind of
opinion that courts regularly admit.
Judge Baylson concludes that Dr. Kneuper's report and testimony do
not pass muster under Rule 702 or Daubert. He says, the Court's
role is to "function as a gatekeeper to ensure that any and all
scientific testimony or evidence admitted is not only relevant, but
reliable." The Third Circuit has interpreted Daubert, in
conjunction with Rule 702, to require a "trilogy of restrictions"
on expert testimony. The expert must be (A) qualified; the
methodology or technique must be (B) reliable; and the testimony
must (C) fit the facts and context of the case and "assist the
trier of fact."
The parties do not dispute that Dr. Kneuper is qualified. However,
the Judge holds that the reliability and fit of his methods and
testimony are vigorously attacked by Lafarge, and the Judge agrees
that Dr. Kneuper's expert report must be precluded. By seriously
misrepresenting, omitting, and ignoring various aspects of the
prior proceedings in the MDL, Dr. Kneuper and Home Depot have not
proffered expert testimony that fits this case and stems from
reliable methodology.
II. Overview of Dr. McClave's Opinion
Dr. McClave was assigned to determine the amount, if any, by which
drywall prices sold to Home Depot increased due to the alleged
conspiracy. Using econometric methodology, he demonstrated that
prices were elevated beyond normal competitive levels during the
alleged conspiracy period. Specifically, he used two analyses to
estimate Home Depot's damages to total between $77 million and $101
million.
Lafarge makes five main arguments in support of exclusion. First,
Lafarge argues that Dr. McClave gives no opinion endorsing an
alternative damages model and doesn't rely on them. Second, it
argues that Dr. McClave's analyses do not fit the facts of the
case. Third, Lafarge argues that Dr. McClave omitted variables for
Home Depot and all other plaintiffs in the MDL. Fourth, it argues
that Dr. McClave's opinions related to the existence of the alleged
conspiracy should be excluded. Fifth, Lafarge argues that Dr.
McClave's opinions must be excluded to the extent Dr. Kneuper's are
excluded.
Home Depot first responds that there is not a high bar for expert
testimony in the Third Circuit, especially for damages in antitrust
price-fixing cases. It also points out that Dr. McClave used
multiple regression analysis to make his calculations. Home Depot
also accuses Lafarge of trying to muddy a clear principle:
price-fixing conspiracies can continue to raise prices even after
collusion ends. As to the inclusion of USG and Georgia-Pacific in
the analysis, Home Depot argues that Dr. McClave's model allows the
trier of fact to calculate damages whether or not Home Depot may
recover for overcharges it paid to these companies. Home Depot also
responds that Dr. McClave did not improperly omit interest rate
variables. Showing that other experts have taken a different
approach with respect to one variable does not meant that another
expert's approach is unreliable.
Judge Baylson holds that he will not decide any of these issues at
present. Dr. McClave should modify his report after Dr. Kneuper
does the same.
Conclusion
Turning to the present opt-out case between Home Depot and Lafarge,
Judge Baylson concludes that grants Lafarge's Motion to Exclude the
Proposed Expert Testimony of Dr. Kneuper in substantial part
because Dr. Kneuper has crossed the line from economist to
attorney-juror-judge. He holds that Dr. Kneuper's opinion, as well
as the arguments of Home Depot's counsel, lack a fundamental
acknowledgement of the important procedural history, underlying and
undisputed facts, events, and rulings in the case. Because of these
defects in Dr. Kneuper's report, it will be stricken, with leave
for Dr. Kneuper to serve a revised report within 60 days. Dr.
McClave may have 30 days thereafter to revise his report.
A full-text copy of the Court's Aug. 20, 2021 Memorandum is
available at https://tinyurl.com/hyp6h322 from Leagle.com.
MDL 3005: Court Denies Transfer of 13 Cases to E.D. La
------------------------------------------------------
In the case "In re: Belviq (Lorcaserin HCI) Products Liability
Litigation," MDL No. 3005, Judge Karen K. Caldwell, Chairperson of
the U.S. Judicial Panel on Multidistrict Litigation denied the
proposed transfer of four cases from the U.S. District Court for
the Middle District of Florida and one each from the U.S. District
Court for the Northern District of Alabama, Eastern District of
Louisiana, Western District of Louisiana, Western District of
Missouri, District of New Jersey, Eastern District of New York,
Northern District of New York, Southern District of New York and
Western District of Oklahoma to the U.S. District Court for the
Eastern District of Louisiana.
The thirteen actions include twelve individual personal injury
actions and one putative class action alleging that lorcaserin
hydrochloride, the active ingredient in the weight loss medication
Belviq, is a potential carcinogen. The individual plaintiffs claim
that they developed a variety of different cancers, including
breast cancer, colorectal cancer, thyroid cancer, and cancer of the
parotid gland, as a result of taking Belviq. These actions thus
involve common factual issues relating to the development, testing
and marketing of Belviq.
It has been nearly eighteen months since the U.S. Food and Drug
Administration requested that defendant Eisai withdraw Belviq from
the market. Only a limited number of actions have been filed, many
by the same plaintiffs' counsel. The panel said that the movants
have failed to meet their burden of establishing that
centralization would be the most efficient path for this
litigation. Individualized factual issues concerning causation
predominate and diminish the potential to achieve significant
efficiencies in an MDL. The actions allege a broad range of cancers
without indicating the mechanism by which Belviq allegedly causes
the various cancers. Additionally, some plaintiffs allegedly took
Belviq for as little as a month or two, while others claim to have
taken it for several years or more.
Lastly, the panel held that a number of factors suggest that
informal coordination would be practicable. All actions are in
their early stages. Plaintiffs in over half the actions before the
panel are represented by the same counsel and four of the other
actions are pending in the same district, where two already have
been related before the same judge. Both defendants are represented
in all underlying actions by national counsel, who are coordinating
with one another. Defendants and movants have reached agreements
regarding a number of discovery issues, which will apply to all
actions brought by movants' counsel.
The panel concluded that because only a minimal number of actions
are involved, the proponent of centralization bears a heavier
burden to demonstrate that centralization is appropriate and has
failed to meet that burden here.
A full-text copy of the Court's August 10, 2021 order is available
at https://bit.ly/3jpPL8e
MDL 3006: 18 Tasigna Drug Row Suits Transferred to M.D. Fla.
------------------------------------------------------------
In case "In Re: Tasigna (Nilotinib) Products Liability Litigation,"
MDL No. 3006, Judge Karen K. Caldwell, Chairperson of the U.S.
Judicial Panel on Multidistrict Litigation, transfers:
* three cases each from the U.S. District Courts for the Middle
District of Florida and the Western District of Washington;
* two cases each from the the U.S. District Courts for District of
New Jersey and District of North Dakota; and
* one each from the the U.S. District Courts for the Western
District of Arkansas, District of Connecticut, Southern District of
Illinois, District of Maryland, District of New Mexico, Southern
District of New York, Middle District of North Carolina and the
Eastern District of Wisconsin,
all to the Middle District of Florida and assigning them to Judge
Roy Bale Dalton for coordinated or consolidated pretrial
proceedings.
The actions here involve common factual issues involving
atherosclerotic injuries associated with use of the chronic myeloid
leukemia drug Tasigna (nilotinib), including allegations that its
manufacturer Novartis failed to appropriately warn of the risks
that use of Tasigna may cause severe atherosclerotic injuries.
Plaintiffs in all actions support the motion while Defendant
Novartis Pharmaceuticals Corp. opposes centralization in favor of
informal cooperation among the parties; alternatively, Novartis
suggests centralization in the Middle District of Florida.
Novartis opposes centralization, arguing that there are too few
actions to justify centralization and that informal cooperation is
feasible. The panel, however, contends that informally coordinating
so many actions with differing schedules before so many different
judges seems labor-intensive and inefficient. Novartis argued that
plaintiff-specific causation issues arising from diagnoses of
atherosclerotic conditions in the Tasigna patient population are
central to each action and best managed outside of an MDL. But the
panel said that all personal injury litigation involves questions
of causation that are plaintiff-specific. Those differences are not
an impediment to centralization when common questions of fact are
multiple and complex. Here, issues of general causation and
discovery into Tasigna's labeling and regulatory history, which may
be international in scope, appear to be sufficiently complex to
justify centralization.
A full-text copy of the Court's August 10, 2021 Transfer Order is
available at https://bit.ly/3t0MfEA
MDL 3009: 12 Pet Collar-Related Suits Transferred to N.D. Ill.
--------------------------------------------------------------
In case "In Re: Seresto Flea and Tick Collar Marketing, Sales
Practices and Products Liability Litigation," MDL No. 3009, Judge
Karen K. Caldwell, Chairperson of the U.S. Judicial Panel on
Multidistrict Litigation, transfers three cases from the U.S.
District Court for the District of New Jersey, two cases each from
the Southern District of New York, the Northern District of
California and the Central District of California and one each from
the Southern District of Florida, Northern District of Illinois and
the Eastern District of Missouri, all to the Northern District of
Illinois and assigning them to John R. Blakey for coordinated or
consolidated pretrial proceedings.
The actions here share factual questions arising from allegations
that the pesticides in Elanco's Seresto Flea and Tick Collar can
harm or even kill dogs and cats, as well as cause harm in humans.
Defendants oppose centralization. The panel contends that the
Northern District of Illinois is an appropriate transferee district
for the 12 actions stating that this district presents an
accessible and geographically central venue for this litigation,
reasonably close to both the Kansas City and Indianapolis metro
areas where the parties assert that relevant documents and
witnesses are located and furthermore has the resources and the
capacity to efficiently handle this nationwide litigation.
A full-text copy of the Court's August 10, 2021 Transfer Order is
available at https://bit.ly/3zxs0AB
MDL 3010: 19 Digital Ad-Related Actions Transferred to S.D. N.Y.
----------------------------------------------------------------
In the case "In Re: Digital Advertising Antitrust Litigation," MDL
No. 3010, Judge Karen K. Caldwell, Chairperson of the U.S. Judicial
Panel on Multidistrict Litigation, transfers three cases from the
U.S. District Courts for the Northern District of California, two
in the Southern District of West Virginia and one each from the
District of Delaware, District of District of Columbia, Southern
District of Indiana, District of Maryland, Northern District of
Mississippi, Southern District of Mississippi, District of New
Jersey, Southern District of New York, Southern District of Ohio,
Western District of Pennsylvania, Eastern District of Texas,
Southern District of Texas, Northern District of West Virginia and
the Eastern District of Wisconsin, all to the the U.S. District
Court for the Southern District of New York and assigning them to
Judge P. Kevin Castel for coordinated or consolidated pretrial
proceedings.
Defendants Google LLC, Alphabet Inc., and YouTube, LLC moved to
centralize this antitrust litigation in the Northern District of
California. The litigation currently consists of 19 actions pending
in 16 districts and concern Google's alleged monopolization and
suppression of competition in online display advertising,
essentially, the marketplace for the placement of digital display
ads on websites and mobile apps. The parties describe the principal
participants in online display advertising as advertisers seeking
to place ads on the internet, online content providers such as news
sites offering ad space alongside digital content, and high-speed
electronic trading venues called "exchanges" that advertisers and
online publishers use to manage the buying and selling of ad space.
The actions allege that Google runs the largest ad exchange and has
engaged in unlawful acts to suppress competition, causing injuries
to advertisers and publishers that participate in its exchange by
imposing supra-competitive pricing and depriving them of revenue.
Plaintiffs in all actions seek declaratory and equitable relief
under federal or state antitrust laws to stop the alleged conduct
and damages.
Defendant Facebook supports centralization of all actions in the
Northern District of California or, alternatively, the Southern
District of New York.
On the plaintiffs' side, there are varying positions on the
threshold issue of whether centralization of these actions is
warranted and the appropriate transferee district.
The panel finds that these actions involve common questions of
fact, namely, that Google has monopolized or suppressed competition
in online display advertising services in violation of federal
antitrust law, whether that market is described singly as all
display advertising services, as components of display advertising,
or as some larger spectrum of digital advertising. The panel
further states that centralization will eliminate duplicative
discovery and avoiding the risk of inconsistent rulings on pretrial
matters, particularly on discovery disputes, Daubert issues and
dispositive motions and that all actions, whether brought as
putative class actions, individual actions, or governmental
actions, will require common discovery from Google, which is the
principal and common defendant. In addition, all cases will require
discovery from Facebook because of the questions surrounding
Facebook's status as a competitor, in at least 16 actions.
Discovery also will cover the Google-Facebook agreement.
Third-party discovery will be significant, as the record indicates
that there will be discovery concerning other alleged competitors,
such as Amazon, as well as federal, state, and international
investigations into Google's online display advertising practices.
Few of the actions have commenced discovery, and those that have
done so remain at a preliminary stage, making now an optimal time
to structure the litigation to maximize efficiencies.
The panel also concludes that the Southern District of New York is
an appropriate transferee district because the advertising and
publishing industry around which these actions revolve have a
strong presence in New York, where the Associated Newspapers action
is pending. Two organizations representing news entities and other
online content providers filed amicus briefs supporting
centralization of the private actions in the Southern District of
New York and plaintiffs in 14 actions request this district in the
event that centralization is granted over their objection. Facebook
indicated at oral argument that the Southern District of New York
is an appropriate alternative to its preferred California forum.
Moreover, significant Google operations concerning the issues in
this litigation are located in New York and that much of the common
evidence is there as well.
A full-text copy of the Court's August 10, 2021 Transfer Order is
available at https://bit.ly/3ky1wJ0
MDL 3011: Court Denies Request to Transfer 4 Actions
-----------------------------------------------------
In the product liability case "In re: New York Area Employee
Retirement Income Security Act (ERISA) and Employment Practices
Litigation (No. II)," MDL No. 3011, Judge Karen K. Caldwell,
Chairperson of the U.S. Judicial Panel on Multidistrict Litigation
denied the proposed transfer of three cases from the U.S. District
Court for the Northern District of New York and one from the
Southern District of New York.
The actions all began as similar derivative actions brought in New
York state court by Oriska Corp. to recover funds owed to its
former subsidiary, Oriska Insurance Company, against nursing home
or health care provider defendants that allegedly underpaid various
workers compensation and benefit trust funds by $60 million.
Defendants in these complaints are owners and operators of nursing
homes, entities that engaged in alleged prohibited transactions,
and certain New York state officials (the governor, state
regulators and university officials) that plaintiffs argue are
complicit in the alleged scheme and participants in the allegedly
prohibited transactions.
Class defendants moved to centralize this litigation in the
Southern District of New York. This litigation currently consists
of four actions pending in two districts. The panel was not
persuaded that centralization is necessary for the convenience of
the parties and witnesses or to further the just and efficient
conduct of this litigation demonstrate that centralization is
appropriate. The panel claims to be not convinced that
centralization will add any, much less any significant,
efficiencies to this litigation. This litigation involves only four
actions pending in two districts before two judges in the same
state. Where only a few actions are involved, the proponent of
centralization bears a heavier burden to demonstrate that
centralization is appropriate.
A full-text copy of the Court's August 10, 2021 order is available
at https://bit.ly/3Bu0zs8
MELINDA COONROD: Class Cert. Bid Filing Extended to Nov. 18
-----------------------------------------------------------
In the class action lawsuit captioned as Howard, et al., v.
Coonrod, et al., Case No. 6:21-cv-00062 (M.D. Fla.), the Hon. Judge
Paul G. Byron entered an endorsed order granting joint motion to
extend class discovery and class certification deadlines:
-- The class action discovery deadline is extended to October
21, 2021.
-- The motion for class certification deadline is extended to
November 18, 2021.
-- The response to motion for class certification deadline is
extended to December 9, 2021.
-- The reply to response to motion for class certification is
extended to December 24, 2021.
-- No other deadlines are extended as a result of this Order.
The nature of suit states civil rights.[CC]
NATIONWIDE MUTUAL: Can Compel Arbitration in Bush Class Suit
------------------------------------------------------------
In the case, R. MITCHELL BUSH and R. M. BUSH & COMPANY d/b/a THE
BUSH AGENCY, Plaintiffs v. NATIONWIDE MUTUAL INSURANCE COMPANY,
Defendant, Civil Action No. 4:20-cv-219 (S.D. Ga.), Judge R. Stan
Baker of the U.S. District Court for the Southern District of
Georgia, Savannah Division, grants in part and denies in part the
Defendant's Motion to Compel Arbitration and Dismiss the
Complaint.
According to the Complaint, Nationwide entered into an agreement
with Plaintiffs R. Mitchell Bush and R. M. Bush & Co., doing
business as The Bush Agency (as well as other Georgia insurance
agents), which allegedly dealt with the transfer of certain "policy
assets." The Plaintiffs filed the putative class action suit
against Nationwide seeking a judgment declaring this agreement to
be void and unenforceable, an injunction against Nationwide
prohibiting them from enforcing this agreement, and, finally,
equitable rescission of the agreement.
According to the Complaint, Bush is the principal and owner of the
Company and has been an insurance agent representing Nationwide for
27 years. For many years, the Company operated "under an exclusive
Nationwide contract." he Complaint alleges that, under this
exclusive contract, the Company agreed to place its clients who
were eligible for Nationwide insurance products exclusively with
Nationwide in exchange for "major deferred compensation." In
contrast, under an independent contract, an agent is "free to
represent multiple insurers and to place their clients who are
eligible for Nationwide insurance products with Nationwide or with
other carriers." In 2018, Nationwide announced that it intended to
end all of its exclusive agent contracts and replace them with
independent contracts by July 1, 2020.
In May 2020, Bush, as the agent of the Company, signed several
agreements with Nationwide. One of these agreements was called the
"Independent Contractor Agent Agreement" ("IC Agreement") which
established that the Company would begin operating under an
independent Nationwide contract on July 1, 2020.
The IC Agreement contained an arbitration provision which states
that "any claim or dispute between Agent and Company, will be
adjudicated on an individual agent-by-agent basis, and not on a
class or representative basis. The adjudication will be by
mandatory binding arbitration under the American Arbitration
Association Commercial Arbitration Rules and Mediation Procedures
in effect on the date of the filing for arbitration." Finally, the
arbitration provision also provides that "the enforceability of
this Agreement, including this arbitration clause, will be resolved
by the arbitrator."
The parties also executed an "Asset Transfer Agreement." Under this
agreement, Nationwide agreed to transfer its "right, title, and
interest in, to, in connection with, and under certain specified
assets, properties, and contractual rights" which included, among
other things, the "Renewal Rights and Customer Data related to
Policies written by Nationwide and being serviced by the Company
and existing as of July 1, 2020." The Asset Transfer Agreement also
contained a "Submission to Jurisdiction" provision stating that
"each Party irrevocably agrees that any legal action or proceeding
arising out of or relating to this Agreement or for recognition and
enforcement of any judgment in respect hereof brought by the other
Party or Parties must be brought and determined exclusively in any
Ohio state or federal court sitting in Columbus, Ohio."
In their Complaint, the Plaintiffs contend that the Asset Transfer
Agreement "was obtained under duress with no valid consideration in
pursuit of a scheme to allow Nationwide to obtain an unlawful or
improper tax benefit." Specifically, they claim that "the policy
asset' that Nationwide is purporting to transfer is not a separate
asset and is not owned by Nationwide" but is instead "the defining
feature of an independent contract, a right which all independent
agents, including The Bush Agency and the proposed class,
automatically have without the need for any separate purchase from
the insurer." The Complaint also alleges that Nationwide coerced
Bush into signing the Asset Transfer Agreement by "threatening to
take his clients (by unspecified means) and confiscate the
remainder of his deferred compensation package." Bush signed the
Asset Transfer Agreement on May 28, 2020 but indicated that he was
signing "UNDER DURESS."
The Plaintiffs filed their Complaint on Sept. 14, 2020, seeking a
declaratory judgment stating that the Asset Transfer Agreement is
void and unenforceable, an injunction prohibiting Nationwide from
enforcing the Asset Transfer Agreement, and equitable rescission of
the Asset Transfer Agreement. Nationwide then filed its Motion to
Compel Arbitration and Dismiss the Complaint. The Plaintiffs filed
a Response, and Nationwide filed a Reply.
Discussion
In its Motion, Nationwide argues that the Court should compel
arbitration and dismiss the Plaintiffs' Complaint. Specifically,
Nationwide asserts that the IC Agreement contains a valid
arbitration provision which, it argues, requires that this dispute
be handled through arbitration. In Response, the Plaintiffs argue
that their claims are based on the Asset Transfer Agreement, so the
arbitration provision in the IC Agreement does not govern the
dispute. They also argue that even if the arbitration provision is
generally applicable, their injunction claim falls outside of that
provision's terms.
First, Judge Baker finds that the arbitration provision in the IC
Agreement is applicable to the Plaintiffs' claims in the case. He
says, the Plaintiffs are unable to cite one case supporting their
contention that the arbitration clause is inapplicable because of
the forum selection clause in the Asset Transfer Agreement. The
arbitration provision in the IC Agreement states that "any claim or
dispute between Agent and Company, will be adjudicated on an
individual agent-by-agent basis, and not on a class or
representative basis. The adjudication will be by mandatory binding
arbitration." The provision goes on to explain that "the Parties
intend that any dispute in any way relating to the Parties'
contractual and business relationship must be pursued through
arbitration."
The Judge holds that nothing in the provision limits its scope only
to claims or disputes arising out of or relating to the terms of
the IC Agreement. Instead, the plain language of the arbitration
provision indicates that it extends not only generally to the
Plaintiffs and Nationwide's "contractual relationship," but also
beyond that, to disputes that relate in any way to their entire
"business relationship." Any other interpretation would, in effect,
render the "business relationship" language meaningless in
violation of Ohio law.
Second, Judge Baker finds that the Plaintiffs' requests for a
judgment declaring the Asset Transfer Agreement void and
unenforceable and for equitable rescission of the Asset Transfer
Agreement are subject to arbitration. In addition, he finds that an
arbitrator should determine whether the Plaintiffs' request for an
injunction prohibiting Nationwide from enforcing the Asset Transfer
Agreement is subject to arbitration. Courts in the circuit
typically stay cases when an arbitrator must determine the issue of
arbitrability. Accordingly, the Judge Grants Nationwide's Motion to
Compel Arbitration. However, he denies Nationwide's Motion to the
extent it seeks to dismiss the action.
Conclusion
In light of the foregoing, Judge Baker grants in part and denies in
part Defendant Nationwide's Motion to Compel Arbitration and
Dismiss the Complaint. He orders the parties to submit the
underlying dispute to arbitration. In addition, he directs the
Clerk of Court to stay and administratively close the case until an
arbitrator rules on whether the Plaintiffs' request for an
injunction prohibiting Nationwide from enforcing the Asset Transfer
Agreement is subject to arbitration.
The parties are directed to file a joint report on the status of
the arbitration proceeding 60 days from the date of the Order, and
every 60 days thereafter, and to immediately notify the Court upon
the arbitrator's determination of the threshold issue of
arbitrability.
A full-text copy of the Court's Aug. 20, 2021 Order is available at
https://tinyurl.com/xtb5a328 from Leagle.com.
NCAA: Bryson Suit Transferred to N.D. Illinois
----------------------------------------------
The case styled as Justin Bryson, individually and on behalf of all
others similarly situated v. National Collegiate Athletic
Association, Case No. 1:21-cv-02185, was transferred from the U.S.
District Court for the Southern District of Indiana to the U.S.
District Court for the Northern District of Illinois on Aug. 30,
2021.
The District Court Clerk assigned Case No. 1:21-cv-04564 to the
proceeding.
The nature of suit is stated as Other P.I. for Personal Injury.
The National Collegiate Athletic Association --
https://www.ncaa.org/ -- is a non-profit organization which
regulates athletes of 1,268 North American institutions and
conferences.[BN]
The Plaintiff is represented by:
Jeffrey L. Raizner, Esq.
RAIZNER SLANIA, LLP
2402 Dunlavy Street
Houston, TX 77006
Phone: (713) 554-9099
Fax: (713) 554-9098
Email: jraizner@raiznerlaw.com
NCAA: Ferguson Suit Transferred to N.D. Illinois
------------------------------------------------
The case styled as Joseph Ferguson, individually and on behalf of
all others similarly situated v. National Collegiate Athletic
Association, Case No. 1:21-cv-02110, was transferred from the U.S.
District Court for the Southern District of Indiana, to the U.S.
District Court for the Northern District of Illinois on August 30,
2021.
The District Court Clerk assigned Case No. 1:21-cv-04561 to the
proceeding.
The nature of suit is stated as Other P.I. for Personal Injury.
The National Collegiate Athletic Association --
https://www.ncaa.org/ -- is a non-profit organization which
regulates athletes of 1,268 North American institutions and
conferences.[BN]
The Plaintiff is represented by:
Jeffrey L. Raizner, Esq.
RAIZNER SLANIA, LLP
2402 Dunlavy Street
Houston, TX 77006
Phone: (713) 554-9099
Fax: (713) 554-9098
Email: jraizner@raiznerlaw.com
NCAA: Girard Suit Transferred to N.D. Illinois
----------------------------------------------
The case styled as Eugene Girard, individually and on behalf of all
others similarly situated v. National Collegiate Athletic
Association, Case No. 1:21-cv-02100, was transferred from the U.S.
District Court for the Southern District of Indiana, to the U.S.
District Court for the Northern District of Illinois on Aug. 30,
2021.
The District Court Clerk assigned Case No. 1:21-cv-04559 to the
proceeding.
The nature of suit is stated as Other P.I. for Personal Injury.
The National Collegiate Athletic Association --
https://www.ncaa.org/ -- is a non-profit organization which
regulates athletes of 1,268 North American institutions and
conferences.[BN]
The Plaintiff is represented by:
Jeffrey L. Raizner, Esq.
RAIZNER SLANIA, LLP
2402 Dunlavy Street
Houston, TX 77006
Phone: (713) 554-9099
Fax: (713) 554-9098
Email: jraizner@raiznerlaw.com
NCAA: Mimms Suit Transferred to N.D. Illinois
---------------------------------------------
The case styled as Harry Mimms, Joseph Ingram, individually and on
behalf of all others similarly situated v. National Collegiate
Athletic Association, Case No. 1:21-cv-02111, was transferred from
the U.S. District Court for the Southern District of Indiana to the
U.S. District Court for the Northern District of Illinois on Aug.
30, 2021.
The District Court Clerk assigned Case No. 1:21-cv-04562 to the
proceeding.
The nature of suit is stated as Other P.I. for Personal Injury.
The National Collegiate Athletic Association --
https://www.ncaa.org/ -- is a non-profit organization which
regulates athletes of 1,268 North American institutions and
conferences.[BN]
The Plaintiffs are represented by:
Jeffrey L. Raizner, Esq.
RAIZNER SLANIA, LLP
2402 Dunlavy Street
Houston, TX 77006
Phone: (713) 554-9099
Fax: (713) 554-9098
Email: jraizner@raiznerlaw.com
NCAA: Mitchell Suit Transferred to N.D. Illinois
------------------------------------------------
The case styled as Matthew Mitchell, individually and on behalf of
all others similarly situated v. National Collegiate Athletic
Association, Case No. 1:21-cv-02172, was transferred from the U.S.
District Court for the Southern District of Indiana, to the U.S.
District Court for the Northern District of Illinois on Aug. 30,
2021.
The District Court Clerk assigned Case No. 1:21-cv-04563 to the
proceeding.
The nature of suit is stated as Other P.I. for Personal Injury.
The National Collegiate Athletic Association --
https://www.ncaa.org/ -- is a non-profit organization which
regulates athletes of 1,268 North American institutions and
conferences.[BN]
The Plaintiff is represented by:
Jeffrey L. Raizner, Esq.
RAIZNER SLANIA, LLP
2402 Dunlavy Street
Houston, TX 77006
Phone: (713) 554-9099
Fax: (713) 554-9098
Email: jraizner@raiznerlaw.com
NEW YORK CITY: Class Status Briefing Sched Extended to Sept. 30
---------------------------------------------------------------
In the class action lawsuit captioned as Feeley v. The City of New
York, et al., Case No. 1:20-cv-01770 (E.D.N.Y.), the Hon. Judge Ann
M. Donnelly entered an order that the deadline for the parties to
file a joint status report certifying the close of fact discovery
and proposing a new briefing schedule for the Rule 23 class
certification motion is extended to September 30, 2021.
The nature of suit states civil rights -- employment
discrimination.[CC]
NEWS CORP: Suits Against HarperCollins Publishers Underway
----------------------------------------------------------
News Corporation said in its Form 10-K report filed with the U.S.
Securities and Exchange Commission on August 10, 2021, for the
fiscal year ended June 30, 2021, that the company's subsidiary
HarperCollins Publishers, L.L.C., faces purported class action
suits in N.Y. District Court.
Beginning in February 2021, a number of purported class action
complaints have been filed in the N.Y. District Court against
Amazon.com, Inc. and certain publishers, including the Company's
subsidiary, HarperCollins Publishers, L.L.C., alleging violations
of antitrust and competition laws.
The complaints seek treble damages, injunctive relief and
attorneys' fees and costs.
While it is not possible at this time to predict with any degree of
certainty the ultimate outcome of these actions, HarperCollins
believes it has been compliant with applicable laws and intends to
defend itself vigorously.
News Corporation is a global diversified media and information
services company comprised of businesses across a range of media,
including: news and information services, book publishing, digital
real estate services, cable network programming in Australia and
pay-TV distribution in Australia.
PARETEUM CORP: Loskot Putative Class Suit Underway
--------------------------------------------------
Pareteum Corporation said in its Form 10-Q Report filed with the
Securities and Exchange Commission on August 10, 2021, for the
quarterly period ended June 30, 2021, that the company continues to
defend a putative class action suit initiated by Douglas Loskot.
Douglas Loskot v. Pareteum Corporation, et al., is a putative class
action pending in the Superior Court of California, County of San
Mateo.
It was filed on May 29, 2020 on behalf of all former stockholders
of iPass Inc. who received shares of the Company's common stock
pursuant to a February 12, 2019 Offer to Exchange.
The defendants are the Company, Robert H. Turner, Edward O'Donnell,
Victor Bozzo, Yves van Sante, Robert Lippert and Luis
Jimenez-Tunon.
The complaint alleges that the defendants caused the Company to
issue materially false or misleading statements in SEC filings
submitted in connection with the Offer to Exchange in violation of
Sections 11 and 15 of the Securities Act.
No further updates were provided in the Company's SEC report.
Pareteum Corporation formerly known as Elephant Talk
Communications, Inc., is an international provider of business
software and services to the telecommunications and financial
services industry. Pareteum Corporation is based in New York, New
York.
PARETEUM CORP: Putative Securities Class Suit Underway in New York
------------------------------------------------------------------
Pareteum Corporation said in its Form 10-Q Report filed with the
Securities and Exchange Commission on August 10, 2021, for the
quarterly period ended June 30, 2021, that company continues to
defend a putative securities class action suit entitled, In re
Pareteum Securities Litigation.
In re Pareteum Securities Litigation is the consolidation of
various putative class actions that were filed in the United States
District Court for the Southern District of New York.
The cases were assigned to Judge Alvin Hellerstein, who
consolidated the actions on January 10, 2020 and named the Pareteum
Shareholder Investor Group as the Lead Plaintiff.
The Lead Plaintiff is asserting claims on behalf of purported
purchasers and/or acquirers of Company securities between December
14, 2017 and October 21, 2019. The defendants are the Company,
Robert H. Turner, Edward O'Donnell, Victor Bozzo, Denis McCarthy,
Dawson James Securities Inc., and Squar Milner LLP.
The Lead Plaintiff alleges that Defendants caused the Company to
issue certain materially false or misleading statements in SEC
filings and other public pronouncements in violation of Sections
10(b) and 20(a) of the Exchange Act, and Sections 11, 12 and 15 of
the Securities Act.
The Lead Plaintiff seeks to recover compensatory damages with
interest for itself and the other class members for all damages
sustained as a result of Defendants' alleged wrongdoing and
reasonable costs and attorney's fees incurred in the case.
Pareteum Corporation formerly known as Elephant Talk
Communications, Inc., is an international provider of business
software and services to the telecommunications and financial
services industry. Pareteum Corporation is based in New York, New
York.
PARKMOBILE LLC: Demos Suit Removed to N.D. Georgia
--------------------------------------------------
The case styled as Megean Demos, on behalf of herself and all
others similarly situated v. ParkMobile, LLC, Case No. 2021cv352327
was removed from the Superior Court of Fulton County to the
Northern District of Georgia on Aug. 30, 2021.
The District Court Clerk assigned Case No. 1:21-cv-03595-MHC to the
proceeding.
The nature of suit is stated as Other Contract for Breach of
Fiduciary Duty.
ParkMobile, LLC -- https://parkmobile.io/ -- is the leading
provider for on-demand and prepaid mobile payments for on- and
off-street parking.[BN]
The Plaintiff is represented by:
Arthur M. Murray, Esq.
Caroline Thomas White, Esq.
MURRAY LAW FIRM
650 Poydras Street, Suite 2150
New Orleans, LA 70130
Phone: (505) 525-8100
Email: amurray@murray-lawfirm.com
cthomas@murray-lawfirm.com
- and -
Gary F. Lynch, Esq.
CARLSON LYNCH LLP - PA
5th Floor
1133 Penn Avenue
Pittsburgh, PA 15222
Phone: (412) 253-6307
Fax: (412) 322-9243
Email: glynch@carlsonlynch.com
- and -
Joseph P. Guglielmo
SCOTT & SCOTT, ATTOTNEYS AT LAW, LLP
230 Park Avenue, 17th Floor
New York, NY 10169
Phone: (212) 223-6444
Email: jguglielmo@scott-scott.com
- and -
MaryBeth Vassil Gibson
N. Nickolas Jackson
THE FINLEY FIRM, P.C.
Building 14, Suite 230
3535 Piedmont Road
Atlanta, GA 30305
Phone: (404) 320-9979 ext 202
Fax: (404) 320-9978
Email: mgibson@thefinleyfirm.com
njackson@thefinleyfirm.com
The Defendant is represented by:
Caroline Gieser
Joshua Luke Becker
SHOOK, HARDY & BACON
1230 Peachtree Street, Suite 1200
Atlanta, GA 30309
Phone: (864) 680-7518
Email: cgieser@shb.com
jbecker@shb.com
- and -
Timia Andrielle Skelton
FORD & HARRISON LLP
271 17tth Street NW, Suite 1900
Atlanta, GA 30363
Phone: (404) 888-3841
Fax: (404) 888-3863
Email: tskelton@shb.com
REALPAGE INC: Bid to Transfer Fritz's Venue to N.D. Texas Denied
----------------------------------------------------------------
In the case, HAROLD OROZCO FRITZ, Plaintiff v. REALPAGE, INC.,
Defendant, Case No. 20-CV-7055-CJS-MJP (W.D.N.Y.), Magistrate Judge
Mark W. Pedersen of the U.S. District Court for the Western
District of New York denies the Defendant's motion to transfer
venue.
Plaintiff Fritz commenced the action on Dec. 9, 2020, alleging the
Defendant violated the Fair Credit Reporting Act ("FCRA"), 15
U.S.C. Sections 1681-1681x, and the New York Fair Credit Reporting
Act ("NYFCRA"), N.Y. Gen. Bus. Law Section 380.
The Defendant is incorporated under the laws of Delaware and is
headquartered in Richardson, Texas. It provides several services to
landlords to assist them in evaluating prospective tenants. The
Defendant's business is predominantly located in Richardson, Texas,
including the executive leadership team, information technology
operations employees, and Defendant's computer servers. Defendant
conducts business in all fifty states.
The Plaintiff has lived in Rochester for more than five years and
in the spring of 2020, he sought to move to a new apartment in the
Rochester area. He applied to two locations: Villas of Victor
Apartments and Auburn Creek Apartments. Property managers for both
apartment complexes requested and received a screening report from
the Defendant regarding the Plaintiff. The Plaintiff alleges that
both applications were denied based on inaccurate reports produced
by the Defendant.
The case was referred to Judge Pederson by the Hon. Charles J.
Siragusa on Feb. 9, 2021, for all non-dispositive pretrial matters.
Presently before the Court is Defendant Realpage's motion to
transfer venue, filed Feb. 16, 2021.
Discussion
The Defendant argues that it would be severely burdened should the
case be litigated in the Western District of New York. It contends
that Texas is the more appropriate venue because Texas has a more
direct connection to the claims in the action as the Defendant's
headquarters are in Richardson, Texas, and all the relevant
personnel, documents, and data reside there as well.
The Plaintiff counters that the inconvenience to the Defendant is
minimal when taking into consideration its resources, that most
information is available digitally, and a change of venue would
preclude him from properly litigating the New York class action
suit that he alleges against the Defendant.
Judge Pederson holds that the sole factor weighing in favor of
transfer is the locus of operative facts. Factors weighing against
transfer include the deference to the Plaintiff's choice of forum,
convenience of witnesses, convenience of parties, the availability
of process to compel the attendance of unwilling witnesses, and the
relative means of the parties. Neutral factors include the location
of relevant documents, the forum's familiarity with the governing
law, and the interest of justice and judicial economy. The Judge
finds that the Defendant has not made a strong showing favoring
transfer, nor does the balance of factors support transferring the
action to the U.S. District Court for the Northern District of
Texas.
Conclusion
Based on the foregoing, Judge Pederson denies the Defendant's
motion to transfer venue to the Northern District of Texas.
A full-text copy of the Court's Aug. 20, 2021 Decision & Order is
available at https://tinyurl.com/4xz4jc2u from Leagle.com.
SACHS ELECTRIC: 3 Classes and 2 Subclasses Certified in Durham Suit
-------------------------------------------------------------------
In the case, WILLIAM DURHAM, et al., Plaintiffs v. SACHS ELECTRIC
COMPANY, et al., Defendants, Case No. 18-cv-04506-BLF (N.D. Cal.),
Judge Beth Labson Freeman of the U.S. District Court for the
Northern District of California, San Jose Division, granted in part
and denied in part the Plaintiff's Second Motion for Class
Certification.
The wage and hour class and PAGA action arises out of Plaintiff
Durham and the proposed class members' employment by Defendant
Sachs at the California Flats Solar Project. Durham alleges that
Sachs acted as an employer, co-employer, or joint-employer of
Durham and the proposed class members during their work on the
California Flats Solar Project, which involved the construction and
development of photovoltaic power. Relevant now, Durham alleges
that Sachs violated California labor laws when the company
"controlled" employees "during the mandated travel time before and
after their scheduled shifts."
The Second Amended Complaint explains that after the Plaintiff and
the class members were badged in at the security entrance, they
were then required to travel approximately 12 or more miles along a
route designated by the Defendants, at a slow speed limit
designated by the Defendants, and using non-public roads controlled
by the Defendants to reach parking lots controlled by the
Defendants and arrive by a specific time designated by the
Defendants. The Plaintiff and the class members were not able to
use this travel time effectively for their own purposes. The travel
time generally took 45 minutes or more each way.
Presently before the Court is the Plaintiff's Second Motion for
Class Certification. Durham seeks to certify five California
classes (three classes and two subclasses) under Rule 23(b)(3).
The five classes under 23(a) and 23(b)(3) are:
i. Unpaid Wages Class (Security Time): All non-exempt
employees of or worked for Sachs Electric Company who worked on the
construction of the California Flats Solar Project at any time
within the period from July 25, 2014 through the date of class
certification who were not paid for all time waiting in line to go
through and going through the mandatory exit security process.
ii. Unpaid Wages Class (Controlled Travel Time): All
non-exempt persons who were employees of or worked for Sachs
Electric Company on the construction of the California Flats Solar
Project at any time within the period from July 25, 2014 through
the date of class certification who were not paid for all time
traveling from the badging-in location at the security gate to when
they began to be paid and from when they stopped being paid to when
they arrived back at badging-out location at the security gate.
iii. Unpaid Wages Class (Paragraph 5(A) Travel Time): All
non-exempt persons who were employees of or worked for Sachs
Electric Company on the construction of the California Flats Solar
Project at any time within the period from July 25, 2014 through
the date of class certification who were not paid for all time
traveling from the badging-in location at the security gate to when
they began to be paid and from when they stopped being paid to when
they arrived back at badging-out location at the security gate.
iv. Termination Pay Subclass: All member of Class 1, 2, or 3
whose employment with Sachs Electric Company terminated within the
period beginning July 25, 2015 to the date of class certification.
v. Wage Statement Subclass: All member of Class 1, 2, or 3
whose received wage statements from Sachs Electric Company during
the period beginning July 25, 2017 to the date of class
certification.
For each class, Durham seeks to bring the following five claims:
(1) failure to pay wages for hours worked under Cal. Labor Code
Sectio 1197; (2) wage statement and record-keeping violations under
Cal. Labor Code Section 226; (3) failure to pay waiting time wages
under Cal. Labor Code Section 203; (4) violation of Cal. Labor Code
Section 2802; and (5) violation of California's Unfair Competition
Law ("UCL"), Cal. Bus. & Prof. Code Sections 17200, et seq. First
Am. Compl. ("FAC"). Durham separately brings a representative claim
for the recovery of civil penalties under the California Private
Attorney General Act ("PAGA"), Cal. Labor Code Section 2698, et
seq.
Discussion
The parties have submitted evidence in support of their respective
positions. Judge Freeman has reviewed all of this evidence in
detail. She is persuaded that it is appropriate to certify the
three classes and two subclasses under Rule 23(b)(3) for each of
the five causes of action. This certification, however, is made
with modification to the class definitions.
Order
For the foregoing reasons, Judge Freeman granted in part and denied
in part the Plaintiff's Motion for Class Certification. The action
is certified for the Rule 23(b)(3) Class and Subclasses as to wage
and hour claims brought pursuant to the Cal. Labor Code and the
UCL.
Pursuant to Rule 23(c)(1)(B):
a. The Unpaid Wages Class (Security Time) is defined as all
non-exempt employees of or worked for Sachs Electric Company who
worked on the construction of the California Flats Solar Project at
any time within the period from July 25, 2014 through the date of
class certification who did not ride the bus and were not paid for
all time waiting in line to go through and going through the
mandatory exit security process.
b. The Unpaid Wages Class (Controlled Travel Time) is defined
as all non-exempt persons who were employees of or worked for Sachs
Electric Company on the construction of the California Flats Solar
Project at any time within the period from July 25, 2014 through
the date of class certification who did not ride the bus and were
not paid for all time traveling from the badging-in location at the
security gate to when they began to be paid and from when they
stopped being paid to when they arrived back at badging-out
location at the security gate.
c. The Unpaid Wages Class (Paragraph 5(A) Travel Time) is
defined as all non-exempt persons who were employees of or worked
for Sachs Electric Company on the construction of the California
Flats Solar Project at any time within the period from July 25,
2014 through the date of class certification who did not ride the
bus and were not paid for all time traveling from the badging-in
location at the security gate to when they began to be paid and
from when they stopped being paid to when they arrived back at
badging-out location at the security gate.
d. The Termination Pay Subclass is defined as all member of
Class 1, 2, or 3 whose employment with Sachs Electric Company
terminated within the period beginning July 25, 2015 to the date of
class certification.
e. The Wage Statement Subclass is defined as all member of
Class 1, 2, or 3 whose received wage statements from Sachs Electric
Company during the period beginning July 25, 2017 to the date of
class certification.
The class issues are (1) Whether any of the exit Security Time
constituted compensable hours worked under California law; (2)
Whether the Travel Time between the Security Gate and the parking
lots constituted compensable hours worked under California law; and
(3) Whether the Security Gate was the first location where the
employee's presence is required for purposes of Paragraph 5(A) of
Wage Order 16.
Judge Freeman appoints William Durham as the class representative;
and pursuant to Rule 23(g), the Dion-Kindem Law Firm and the
Blanchard Law Group, APC as the co-class counsel.
The counsel is directed to meet and confer concerning the manner,
form and content of notice to be provided to the absent class
members, and to submit a proposal concerning the same to the Court
in writing no later than Sept. 15, 2021.
A full-text copy of the Court's Aug. 20, 2021 Order is available at
https://tinyurl.com/5nm8sy8a from Leagle.com.
SCIENTIFIC GAMES: Tonkawa Tribe Suit Transferred to N.D. Ill.
-------------------------------------------------------------
The case styled as Tonkawa Tribe of Indians of Oklahoma doing
business as: Tonkawa Enterprises; Cow Creek Band of Umpqua Tribe of
Indians; Umpqua Indian Development Corporation; on behalf of itself
and others similarly situated v. Scientific Games Corporation,
Bally Technologies, Inc., Bally Gaming Inc., Defendants; Alfred T.
Giuliano doing business as: Magnolia House Casino doing business
as: The Atlantic Club Casino Hotel and Ranchos Club Casino, Inc as
Liquidation Trustee for RIH Acquisitions NJ, LLC, Intervenor, Case
No. 2:20-cv-01637, was transferred from the U.S. District Court for
the District of Nevada, to the U.S. District Court for the Northern
District of Illinois on Aug. 30, 2021.
The District Court Clerk assigned Case No. 1:21-cv-04626 to the
proceeding.
The nature of suit is stated as Anti-Trust for Antitrust
Litigation.
Scientific Games Corporation -- https://www.scientificgames.com/ --
is an American corporation that provides gambling products and
services to lottery and gambling organizations across the
globe.[BN]
The Plaintiff is represented by:
Anthony S. Broadman, Esq.
Gabriel S. Galanda, Esq.
GALANDA BROADMAN PLLC
8603 35th Ave. NE, Suite L1
Seattle, WA 98115
Phone: (206) 557-7509
- and -
Michael F. Lynch, Esq.
LYNCH LAW PRACTICE, PLLC
3613 S. Eastern Ave.
Las Vegas, NV 89169
Phone: (702) 684-6000
Email: Michael@LynchLawPractice.com
- and -
Robert Stephen Berry, Esq.
BERRY LAW PLLC
1100 Connecticut Ave. NW, Ste 645
Washington, DC 20036
Phone: (202) 296-1212
Email: sberry@berrylawpllc.com
- and -
Zeke Fletcher, Esq.
FLETCHER LAW, PLLC
124 W. Allegan #1400
Lansing, MI 48933
Phone: (517) 755-0776
- and -
Jason H. Kim, Esq.
SCHNEIFER WALLACE COTTRELL KONECKY
901 S Flower Street, #401
Los Angeles, CA 90015
Phone: (415) 421-7100
Email: jkim@schneiderwallace.com
The Defendants are represented by:
Craig C Martin, Esq.
Matt Basil, Esq.
Aaron Jerome Hersh, Esq.
Sara T Horton, Esq.
WILLKIE FARR & GALLAGHER LLP
300 N. LaSalle
Chicago, IL 60654
Phone: (312) 728-9050
Email: cmartin@willkie.com
mbasil@willkie.com
ahersh@willkie.com
shorton@willkie.com
- and -
Matthew S Freimuth, Esq.
WILLKIE FARR
787 Seventh Ave
New York, NY 10019
Phone: (212) 728-8183
Email: mfreimuth@willkie.com
- and -
Philip R Erwin, Esq.
CAMPBELL & WILLIAMS
710 S. 7th St., Ste. A
Las Vegas, NV 89101
Phone: (702) 382-5222
Email: Perwin@campbellandwilliams.com
The Intervenor is represented by:
Don Springmeyer, Esq.
DRAKULICH & SPRINGMEYER
6490 South McCarran, Suite 28
Reno, NE 89509
Phone: (702) 825-1112
- and -
Daniel Bravo, Esq.
WOLF, RIFKIN, SHAPIRO, SCHULMAN, & RABKIN, LLP
3773 Howard Hughes Parkway, Suite 590 South
Las Vegas, NV 89169
Phone: (702) 341-5200
Email: dbravo@wrslawyers.com
SEQUENTIAL BRANDS: Continues to Defend D'Arcy Class Action
-----------------------------------------------------------
Sequential Brands Group, Inc. said in its Form 10-K/A report filed
with the U.S. Securities and Exchange Commission on August 10,
2021, for the fiscal year ended December 31, 2020, that the company
continues to defend a class action suit entitled, D'Arcy v.
Sequential Brands Group Inc. et al.
On March 16, 2021, a class action lawsuit, titled D'Arcy v.
Sequential Brands Group Inc. et al., was filed by a purchaser of
the Company's securities, and prospectively on behalf of all other
purchasers of the Company's publicly traded securities between
November 3, 2016 and December 11, 2020, in the U.S. District Court
for the Central District of California.
The complaint names the Company and certain of its current and
former officers and directors as defendants.
The complaint alleges violations of Section 10(b) and 20(a) of the
Exchange Act.
The allegations in the complaint are based principally on the
allegations in the SEC's complaint filed on December 11, 2020.
The plaintiff seeks, among other things, class certification and
damages.
Sequential Brands said, "While it is not uncommon for a lawsuit to
be filed promptly after an SEC complaint, it should be noted that
even the SEC action did not allege fraud under Section 10(b), so
this action seeks relief far beyond what the SEC had any basis to
allege under the facts and the law. The Company plans to defend
itself vigorously. Litigation costs in this matter may be
significant."
Sequential Brands Group, Inc. owns a portfolio of consumer brands
in the active and lifestyle categories, including, Jessica Simpson,
AND1, Avia, Joe's and GAIAM. The company aims to maximize the value
of its brands by promoting, marketing and licensing the brands
through various distribution channels, including to retailers,
wholesalers and distributors in the United States and in certain
international territories. The company is based in New York, New
York.
SESEN BIO: Rosen Law Firm Reminds of October 18 Deadline
--------------------------------------------------------
WHY: Rosen Law Firm, a global investor rights law firm, on Aug. 30
announced the filing of a class action lawsuit on behalf of
purchasers of the securities of Sesen Bio, Inc. (NASDAQ: SESN)
between December 21, 2020 and August 17, 2021, inclusive (the
"Class Period"). A class action lawsuit has already been filed. If
you wish to serve as lead plaintiff, you must move the Court no
later than October 18, 2021.
SO WHAT: If you purchased Sesen Bio securities during the Class
Period you may be entitled to compensation without payment of any
out of pocket fees or costs through a contingency fee arrangement.
WHAT TO DO NEXT: To join the Sesen Bio class action, go to
http://www.rosenlegal.com/cases-register-2149.htmlor call Phillip
Kim, Esq. toll-free at 866-767-3653 or email pkim@rosenlegal.com or
cases@rosenlegal.com for information on the class action. A class
action lawsuit has already been filed. If you wish to serve as lead
plaintiff, you must move the Court no later than October 18, 2021.
A lead plaintiff is a representative party acting on behalf of
other class members in directing the litigation.
WHY ROSEN LAW: We encourage investors to select qualified counsel
with a track record of success in leadership roles. Often, firms
issuing notices do not have comparable experience, resources or any
meaningful peer recognition. Be wise in selecting counsel. The
Rosen Law Firm represents investors throughout the globe,
concentrating its practice in securities class actions and
shareholder derivative litigation. Rosen Law Firm has achieved the
largest ever securities class action settlement against a Chinese
Company. Rosen Law Firm was Ranked No. 1 by ISS Securities Class
Action Services for number of securities class action settlements
in 2017. The firm has been ranked in the top 4 each year since 2013
and has recovered hundreds of millions of dollars for investors. In
2019 alone the firm secured over $438 million for investors. In
2020, founding partner Laurence Rosen was named by law360 as a
Titan of Plaintiffs' Bar. Many of the firm's attorneys have been
recognized by Lawdragon and Super Lawyers.
DETAILS OF THE CASE: According to the lawsuit, defendants
throughout the Class Period made false and/or misleading statements
and/or failed to disclose that: (1) Sesen Bio's clinical trial for
Vicineum (VB4-845), a locally administered targeted fusion protein
("TFP") developed as a treatment of bacillus Calmette-Guerin
("BCG")-unresponsive non-muscle invasive bladder cancer ("NMIBC")
had more than 2,000 violations of trial protocol, including 215
classified as "major"; (2) three of Sesen Bio's clinical
investigators were found guilty of "serious noncompliance,"
including "back-dating data"; (3) Sesen Bio had submitted the
tainted data in connection with the Biologics License Application
("BLA") for Vicineum; (4) Sesen Bio's clinical trials showed that
Vicineum leaked out into the body, leading to side effects
including liver failure and liver toxicity, and increasing the
risks for fatal, drug-induced liver injury; (5) as a result of the
foregoing, the Company's BLA for Vicineum was not likely to be
approved; (6) as a result of the foregoing, there was a reasonable
likelihood that Sesen Bio would be required to conduct additional
trials to support the efficacy and safety of Vicineum; and (7) as a
result of the foregoing, defendants' positive statements about the
Company's business, operations, and prospects were materially
misleading and/or lacked a reasonable basis. When the true details
entered the market, the lawsuit claims that investors suffered
damages.
To join the Sesen Bio class action, go to
http://www.rosenlegal.com/cases-register-2149.htmlor call Phillip
Kim, Esq. toll-free at 866-767-3653 or email pkim@rosenlegal.com or
cases@rosenlegal.com for information on the class action.
No Class Has Been Certified. Until a class is certified, you are
not represented by counsel unless you retain one. You may select
counsel of your choice. You may also remain an absent class member
and do nothing at this point. An investor's ability to share in any
potential future recovery is not dependent upon serving as lead
plaintiff.
Attorney Advertising. Prior results do not guarantee a similar
outcome.
Contact Information:
Laurence Rosen, Esq.
Phillip Kim, Esq.
The Rosen Law Firm, P.A.
275 Madison Avenue, 40th Floor
New York, NY 10016
Tel: (212) 686-1060
Toll Free: (866) 767-3653
Fax: (212) 202-3827
lrosen@rosenlegal.com
pkim@rosenlegal.com
cases@rosenlegal.com
www.rosenlegal.com [GN]
STATE TRANSPORT: Macomber Suit Removed to D. South Carolina
-----------------------------------------------------------
The case styled as Jonathan Wayne-Payson Macomber, Ehab Yahia
Zahran, on behalf of those similarly situated v. State Transport
Police, a division of the SC Department of Public Safety, Case No.
2021-CP-42-02505 was removed from the Spartanburg County Court of
Common Pleas to the District of South Carolina on Aug. 30, 2021.
The District Court Clerk assigned Case No. 7:21-cv-02799-DCC to the
proceeding.
The nature of suit is stated as Constitutional - State Statute.
The State Transport Police (STP) -- http://scdps.sc.gov/scstp-- is
primarily responsible for enforcing state and federal laws
governing commercial motor vehicles.[BN]
The Plaintiffs are represented by:
Patrick Eugene Knie, Esq.
KNIE LAW FIRM
PO Box 5159
Spartanburg, SC 29304
Phone: (864) 582-5118
Fax: (864) 585-1615
Email: pknie@knielaw.com
- and -
Andrew J. Johnston
ANDREW JOHNSTON LAW OFFICE
PO Box 3252
Spartanburg, SC 29304
Phone: (864) 591-1093
Fax: (864) 591-1371
Email: ajohnston@spartanburglegal.com
The Defendant is represented by:
William Ussery Gunn
HOLCOMBE BOMAR PA
PO Box 1897
Spartanburg, SC 29304
Phone: (864) 585-4273
Fax: (864) 585-3844
Email: bgunn@holcombebomar.com
STEMILT AG: Washington Court Certifies FLCA Subclass in Garcia Suit
-------------------------------------------------------------------
In the case, GILBERTO GOMEZ GARCIA, as an individual and on behalf
of all other similarly situated persons, and JONATHAN GOMEZ RIVERA,
as an individual and on behalf of all other similarly situated
persons, Plaintiffs v. STEMILT AG SERVICES LLC, Defendant, Case No.
2:20-cv-00254-SMJ (E.D. Wash.), Judge Salvador Mendoza, Jr., of the
U.S. District Court for the Eastern District of Washington grants
in part and denies in part the Plaintiffs' Motion for Class
Certification.
The case concerns the Plaintiffs' allegations that the Defendant
imposed a productivity requirement that was not disclosed in the
workers' contracts, discriminated against foreign H-2A workers,
threatened to blackball them or force them to leave the country,
and did not pay them wages owed.
Altogether, the Plaintiffs' Third Amended Complaint brings three
claims under the Trafficking Victims' Protection Act (TVPA) (18
U.S.C. Sections 1589(a)(3),(4) and 1592(a)), a claim under the
Washington Law Against Discrimination (WLAD) (Wash. Rev. Code
Section 49.60.180(3)), a breach of contract claim, the Farm Labor
Contractor Act (FLCA) claims (a single count alleging violations
of Wash. Rev. Code Sections 19.30.120(2), 19.30.110(5),
19.30.110(7)(h), 19.30.110(7), and 19.30.110(2)), a willful refusal
to pay wages claim (Wash. Rev. Code Section 49.52.050(2)), and an
alienage discrimination claim (42 U.S.C. Section 1981).
The Plaintiffs' claims arise from one or both of two H-2A Clearance
Orders -- from January 2017 and August 2017 -- and the labor
performed thereunder. Neither contract included minimum production
standards, although they did require workers to "work at a
sustained pace and make bona-fide efforts to work efficiently and
consistently that are reasonable under the climactic and other
working conditions."
The second contract also provided: "If the Worker is consistently
unable to perform their duties in a timely and proficient manner
consistent with applicable industry standards, considering all
factors, they will be provided training in accordance with
Employer's progressive discipline standards, including verbal
instruction, written warnings, time off, or other coaching or
instruction to teach the worker to work more efficiently. If
performance does not improve after coaching and several warnings,
the Worker may be terminated. These standards are not linked to any
specific productivity measure and apply equally to if the Worker is
working on an hourly and/or piece rate basis."
Complicating matters in the case is a supposed scheme by two of
Defendant's former employees. HR employee Elizabeth Hernandez and
her assistant, Christina Medrano headed the Defendant's H-2A
program, including training, and recruitment. This role required
them to understand the legal requirements of the H-2A program.
Medrano and Hernandez allegedly secretly created their own H-2A
vendor, H2Global. Hernandez requested that Defendant approve a new
vendor, Evergreen Agricultural Services, LLC, for H-2A visa
processing. The Defendant did so. Evergreen in turn outsourced the
work to H2Global -- thereby charging the Defendant for work that it
was paying them to perform as a part of their job.
Before the Court is Plaintiffs' Motion for Class Certification. The
Court heard oral argument in the matter and has considered the
parties' briefing and exhibits. As the defense counsel put it at
the hearing, "the case is an untidy sprawling mess" of facts,
procedural issues, and substantive law. This is not "a simple case
with a straightforward resolution." Nor does the case -- which is
plagued by individual issues -- generally lend itself to class-wide
resolution.
Judge Mendoza finds that the Plaintiffs' class certification
attempt has several fatal flaws. Foremost, they cannot meet Rule
23(a)(3)'s typicality requirement or Rule 23(b)(3)'s predominance
requirement for most of their claims. Because the Plaintiffs' bid
for class certification fails on these grounds, the Judge need not
address the other Rule 23 requirements as to those claims. However,
he certifies a small subset of the Plaintiffs' FLCA claims under
Section 19.30.110(7).
Judge Mendoza concludes that the Plaintiffs have identified and
alleged concerning issues with the Defendant's policies and
culture. In fact, the Defendant admits that at certain orchards and
with certain managers, legal violations likely occurred, giving
rise to "legitimate gripes." Unfortunately, with the exception of
their Section 19.30.110(7) claims, the Judge holds that the
Plaintiffs have simply not met their burden of showing that the
case is manageable as a class action. The sprawling physical and
factual landscape of the case, as well as the thorny issues with
the proffered class representatives, render the case generally too
unwieldy and unfit for class treatment under the required rigorous
analysis.
Accordingly, Judge Mendoza granted in part and denied in part the
Plaintiffs' Motion for Class Certification.
Judge Mendoza certified the following class, referred to as the
FLCA Subclass, under Rule 23(b)(3): All Mexican nationals employed
at Stemilt Ag Services, LLC in Washington, pursuant to both the
2017 H-2A contract from Jan. 16, 2017 through Aug. 11, 2017 and the
H-2A contract from Aug. 14, 2017 through Nov. 15, 2017 for the
purposes of litigating class members claims under Wash. Rev. Code
Section 19.30.110(7) only.
Columbia Legal Services and Keller Rohrback L.L.P. are appointed as
the class counsel pursuant to Rule 23(g). The Judge designated
named Plaintiffs Gilberto Gómez Garcia and Jonathan Gómez Rivera
as the class representatives.
By no later than three weeks from the date of the Order, the
parties will confer concerning notice to the class pursuant to
Federal Rule of Civil Procedure 23(c)(2) and will file a proposed
Notice and notice plan. If the parties cannot reach an agreement
regarding the proposed Notice and notice plan, Plaintiffs will
submit a proposed Notice and notice plan by that date.
The Defendant will have 10 days from service of the proposed Notice
and notice plan to serve and file any objections. The Plaintiffs
will have five days from service of any objection to serve and file
a reply.
By no later than three weeks from the date of this Order, the
parties will file a joint status report with proposed deadlines for
the remainder of the matter -- including those claims which the
Court did not certify as a class action -- and addressing any other
issues of which they believe the Court should be aware.
The Clerk's Office is directed to enter the Order and provide
copies to all the counsel.
A full-text copy of the Court's Aug. 20, 2021 Order is available at
https://tinyurl.com/7dvuswte from Leagle.com.
TRACE STAFFING: Gouldie Seeks to Certify Salaried Recruiter Class
-----------------------------------------------------------------
In the class action lawsuit captioned as MICHAEL GOULDIE,
individually and on behalf of all others similarly situated, v.
TRACE STAFFING SOLUTIONS, LLC, Case No. 5:21-cv-00088-TES (M.D.
Ga.), the Plaintiff asks the Court to enter an order:
1. granting conditional certification and authorizing notice
to be sent (by mail, email, and text) to:
"All current and former salaried recruiters employed by
Trace Staffing at any time during the past three years
(the "Salaried Recruiters");
2. approving the Notice and Consent forms;
3. directing Trace Staffing to produce to Class Counsel the
contact information for each Salaried Recruiter within 10
days;
4. authorizing a 60-day notice period for the Salaried
Recruiters to join this case;
5. authorizing an identical reminder notice halfway through
the notice period; and
6. authorizing Class Counsel to contact certain Salaried
Recruiters by telephone if their mailed or emailed Notice
forms return as undeliverable to obtain updated contact
information.
The issue presented is whether the Court should conditionally
certify this Fair Labor Standards Act (FLSA) collective action and
authorize Plaintiff Michael Gouldie to send notice to the proposed
class. Conditional certification is appropriate because Defendant
Trace Staffing, LLC imposed an illegal pay scheme on its Salaried
Recruiters, the lawsuit says.
Specifically, Trace Staffing misclassified its Salaried Recruiters
as exempt from overtime pay and deprived them of the "time and a
half" overtime premium required by the FLSA.
As a staffing agency, Trace Staffing employs recruiters to make
Internet job postings, place phone calls, and generally field
candidates according to the criteria established by Trace
Staffing’s customers. Trace Staffing pays these recruiters a
salary and classifies them as exempt from overtime pay.
A copy of the Plaintiff's motion to certify class dated Aug. 30,
2021 is available from PacerMonitor.com at https://bit.ly/3gSg5Gp
at no extra charge.[CC]
The Plaintiff is represented by:
Michael A. Josephson, Esq.
Andrew W. Dunlap, Esq.
Carl A. Fitz, Esq.
JOSEPHSON DUNLAP LLP
11 Greenway Plaza, Suite 3050
Houston, TX 77046
Telephone: (713) 352-1100
Facsimile: (713) 352-3300
E-mail: mjosephson@mybackwages.com
adunlap@mybackwages.com
cfitz@mybackwages.com
- and-
Richard J. (Rex) Burch, Esq.
BRUCKNER BURCH PLLC
8 Greenway Plaza, Ste. 1500
Houston, TX 77046
Telephone: (713) 877-8788
Facsimile: 713-877-8065
E-mail: rburch@brucknerburch.com
UBER TECHNOLOGIES: Can Compel Arbitration in Davarci NYLL Suit
--------------------------------------------------------------
In the case, SANCAK DAVARCI and JOSEPH CHAMBERS, individually and
on behalf of all others similarly situated, Plaintiffs v. UBER
TECHNOLOGIES, INC., Defendant, Case No. 20-CV-9224 (VEC)
(S.D.N.Y.), Judge Valerie Caproni of the U.S. District Court for
the Southern District of New York granted the Defendant's motion to
compel arbitration and to strike the Plaintiffs' class claims.
Plaintiffs Davarci and Chambers work in New York State as drivers
for the rideshare company Uber. In November 2020, the Plaintiffs,
individually and on behalf of a class of all others who work or
have worked as Uber drivers in New York, sued Uber alleging that
Uber misclassifies its drivers as independent contractors instead
of employees. As a result, Uber has, according to the Plaintiffs,
violated the New York Labor Law ("NYLL").
On Dec. 11, 2020, Uber filed a motion pursuant to the Federal
Arbitration Act ("FAA"), 9 U.S.C. Section 1, et seq., to compel
individual arbitration of the Plaintiffs' claims and to strike
their class allegations. The Plaintiffs have opposed Uber's motion.
Analysis
The critical issue in dispute is whether Uber drivers fall under
the exemption to the FAA for employment contracts of workers
"engaged in foreign or interstate commerce." As the so-called gig
economy has exploded in recent years, a growing number of courts
has considered this precise issue. A consensus has seemingly begun
to develop that rideshare drivers are not exempt from the FAA,
although recently a handful of courts have disagreed.
Judge Caproni finds that the residual clause of Section 1 of the
FAA covers workers who transport goods and workers who transport
passengers in interstate commerce. Section 1 states that "nothing
herein contained will apply to contracts of employment of seamen,
railroad employees, or any other class of workers engaged in
foreign or interstate commerce." At the outset, the Judge rejects
Uber's threshold argument that Uber drivers are not included within
the Section 1 exemption because they are engaged in the transport
of passengers rather than physical goods. She is persuaded that
these more recent decisions declining to distinguish between the
interstate transportation of goods and passengers have the better
of the argument. There is no basis in the statutory text to
distinguish between transportation workers who transport goods and
those who transport passengers, nor does the contemporary meaning
of the term "commerce" support such a distinction.
Turning to the central issue on the motion, Judge Caproni agrees
with Uber that the Plaintiffs do not belong to a class of workers
engaged in interstate commerce within the meaning of Section 1's
residual clause. To begin, she notes the Court's agreement with
recent decisions that define the level of generality of the class
of workers at issue as all Uber (or Lyft) drivers nationwide. She
says, the FAA embodies a national policy favoring arbitration, and
it would be illogical if Uber drivers performing the same work for
the same company in different cities were to have completely
different rights and obligations under the FAA merely because of a
happenstance of geography.
In short, by transporting passengers to hubs of interstate
commerce, rideshare drivers play a distinct, segmented role, which
is itself local in nature. That a certain portion -- maybe even a
meaningful portion -- of their trips involve pick-ups or drop-offs
at interstate travel hubs does not transform the fundamental nature
of rideshare drivers' job into one in which a central feature of
the job is interstate commerce. In other words, the fact that a
meaningful portion of local trips involves transportation to an
airport or train station does not alter the fundamentally local
nature of those trips such that Uber drivers are part of the flow
of interstate goods and persons.
Having considered carefully the arguments supporting both the
majority and minority positions, Judge Caproni concludes that Uber
drivers are not a class of workers engaged in interstate commerce
within the meaning of Section 1's residual clause.
Conclusion
For the foregoing reasons, the Defendant's motion to compel
arbitration and to strike the Plaintiffs' class claims is granted.
The action is stayed pending the conclusion of individual
arbitration. The Clerk of Court is respectfully requested to
terminate the open motion at Dkt. 13.
A full-text copy of the Court's Aug. 20, 2021 Opinion & Order is
available at https://tinyurl.com/339vmvuw from Leagle.com.
VIATRIS INC: EpiPen Auto-Injector Direct Purchaser Suit Junked
--------------------------------------------------------------
Viatris Inc. said in its Form 10-Q Report filed with the Securities
and Exchange Commission on August 9, 2021, for the quarterly period
ended June 30, 2021, that the court had dismissed the putative
direct purchaser class suit related to EpiPen(R) Auto-Injector.
On February 14, 2020, the Company, together with other non-Viatris
affiliated companies, were named as defendants in a putative direct
purchaser class action filed in the U.S. District Court for the
District of Kansas relating to the pricing and/or marketing of the
EpiPen(R) Auto-Injector.
The plaintiff, in this case, asserts federal antitrust claims which
are based on allegations that are similar to those in the putative
indirect purchaser class actions discussed.
On November 3, 2020, the plaintiff filed a second amended complaint
that is substantially similar to the allegations in the amended
complaint.
Plaintiffs' seek monetary damages, declaratory relief, attorneys'
fees and costs.
On July 26, 2021, the Court dismissed the second amended complaint
with an option for Plaintiff to file a limited amended complaint
within 30 days.
Viatris Inc. is a global healthcare company formed in November 2020
through the combination of Mylan and the Upjohn Business whose
mission is to empower people worldwide to live healthier at every
stage of life. The company is based in Canonsburg, Pennsylvania.
VIATRIS INC: Opioid Related Putative Class Actions Underway
-----------------------------------------------------------
Viatris Inc. said in its Form 10-Q Report filed with the Securities
and Exchange Commission on August 9, 2021, for the quarterly period
ended June 30, 2021, that the company continues to defend putative
class action suits related to opioid.
The Company, along with other manufacturers, distributors,
pharmacies, pharmacy benefit managers, and individual healthcare
providers is a defendant in more than 1,000 cases in the United
States and Canada filed by various plaintiffs, including counties,
cities and other local governmental entities, asserting civil
claims related to sales, marketing and/or distribution practices
with respect to prescription opioid products.
In addition, lawsuits have been filed as putative class actions
including on behalf of children with Neonatal Abstinence Syndrome
due to alleged exposure to opioids.
The lawsuits generally seek equitable relief and monetary damages
(including punitive and/or exemplary damages) based on a variety of
legal theories, including various statutory and/or common law
claims, such as negligence, public nuisance and unjust enrichment.
The vast majority of these lawsuits have been consolidated in an
MDL in the U.S. District Court for the Northern District Court of
Ohio.
No further updates were provided in the Company's SEC report.
Viatris Inc. is a global healthcare company formed in November 2020
through the combination of Mylan and the Upjohn Business whose
mission is to empower people worldwide to live healthier at every
stage of life. The company is based in Canonsburg, Pennsylvania.
VIATRIS INC: PERS Mississippi Suit Against Mylan Underway
---------------------------------------------------------
Viatris Inc. said in its Form 10-Q Report filed with the Securities
and Exchange Commission on August 9, 2021, for the quarterly period
ended June 30, 2021, that Mylan N.V. continues to defend a putative
class action suit initiated by the Public Employees Retirement
System of Mississippi.
On June 26, 2020, a putative class action complaint was filed by
the Public Employees Retirement System of Mississippi, which was
subsequently amended on November 13, 2020, against Mylan N.V.,
certain of Mylan N.V.'s former directors and officers, and an
officer and director of the Company in the U.S. District Court for
the Western District of Pennsylvania on behalf of certain
purchasers of securities of Mylan N.V.
The amended complaint alleges that defendants made false or
misleading statements and omissions of purportedly material fact,
in violation of federal securities laws, in connection with
disclosures relating to the Morgantown manufacturing plant and
inspections at the plant by the Food and Drug Administration (FDA).
Plaintiff seeks certification of a class of purchasers of Mylan
N.V. securities between February 16, 2016 and May 7, 2019.
The complaint seeks monetary damages, as well as the plaintiff's
fees and costs.
No further updates were provided in the Company's SEC report.
Viatris Inc. is a global healthcare company formed in November 2020
through the combination of Mylan and the Upjohn Business whose
mission is to empower people worldwide to live healthier at every
stage of life. The company is based in Canonsburg, Pennsylvania.
WAWA INC: Class Action Over 2019 Data Security Incident Settled
---------------------------------------------------------------
Wawa and a group of consumers on Aug. 30 announced a settlement of
litigation stemming from the data security incident Wawa previously
announced in December of 2019.
The agreement announced on Aug. 30, which is subject to Court
approval, resolves all customer claims related to that data
security incident, which resulted from malware being discovered on
Wawa payment processing servers. The malware affected customer
payment card information used at most Wawa locations beginning at
different points in time after March 4, 2019 and until it was
contained on December 12, 2019. Customers who used a credit or
debit card at Wawa stores or fuel pumps can participate in the
settlement and obtain Wawa gift cards capped at $8 million in
aggregate, and cash reimbursements of out-of-pocket costs capped at
$1 million in aggregate. Settlement claims can be submitted by
visiting www.WawaConsumerDataSettlement.com run by KCC LLC. The
settlement also requires Wawa to implement and continue to maintain
significant enhancements to its data security measures.
Counsel for the consumer class stated: "We feel this settlement is
an excellent result for the class, providing a range of benefits to
consumers. The settlement compensates three types of customers via
different monetary awards -- those who used their cards at Wawa and
did not experience fraudulent charges on their cards and who spent
time monitoring their payment card or other accounts, those who did
experience fraudulent charges on their cards, and those who
incurred out-of-pocket costs as a result of the data breach. The
settlement also provides valuable remedial relief aimed at
preventing similar breaches in the future."
In response to the announced agreement, Wawa stated: "We are
focused on a timely resolution for Wawa customers who may have been
affected by this incident, and this settlement allows us to just do
that. At Wawa, the people who come through our doors every day are
not just customers, you are our friends and neighbors, and nothing
is more important than honoring and protecting your trust. We can
assure you that we have continued to and will work diligently to
protect your information and enhance our cybersecurity
resiliency."
For more information, to submit a claim, or for contact information
for Class Counsel, please visit www.WawaConsumerDataSettlement.com.
[GN]
WISCONSIN: Court Denies Bid to Certify Class in Justich v. Oshkosh
------------------------------------------------------------------
In the case, TONY JUSTICH, Plaintiff v. KEVIN CARR, JOHN TATE,
MICHAEL RIVERS, and JOHN DOES 1-50, Defendants, Case No.
20-CV-1575-JPS (E.D. Wis.), Judge J.P. Stadtmueller of the U.S.
District Court for the Eastern District of Wisconsin denied the
Plaintiff's motion for a preliminary injunction and for a temporary
restraining order and his requests that the case be certified as a
class action.
Plaintiff Justich was an inmate confined at Oshkosh Correctional
Institution when he filed a pro se complaint under 42 U.S.C.
Section 1983 alleging that the Defendants violated the Eighth and
Fourteenth Amendment rights, as well as other state and
constitutional rights, of all persons incarcerated in Wisconsin
facilities under the custody of the Wisconsin Department of
Corrections, due to the conditions of Wisconsin prisons during the
COVID-19 pandemic.
The Plaintiff seeks to make the case a class action, with himself
representing all prisoners in the Wisconsin prison system.
Additionally, he filed a motion for a preliminary injunction and
for a TRO.
Judge Stadtmueller resolves the Plaintiff's pending motions,
addresses his request to proceed as a class, and screens his
complaint.
1. Motion for Leave to Proceed Without Prepaying the Filing Fee
On Nov. 5, 2020, the Court permitted the Plaintiff to pay an
initial partial filing fee of $23.72 from his release account. The
Plaintiff paid that fee on Nov. 19, 2020.
Judge Stadtmueller grants the Plaintiff's motion for leave to
proceed without prepaying the filing fee. The Plaintiff must pay
the remainder of the filing fee over time in the manner explained
in the Order.
2. Screening the Complaint
The Plaintiff alleges that from Jan. 1, 2020 until the present, the
Defendants violated the Eighth and Fourteenth Amendment rights, as
well as other state and constitutional rights, of all persons
incarcerated in Wisconsin facilities under the custody of the
Wisconsin Department of Corrections. He states that the Defendants
did not properly create, implement, or enforce policies that would
prevent the spread of COVID-19 in the prisons.
Additionally, the Plaintiff alleges that the conditions of
confinement at the prisons during the COVID-19 pandemic created an
environment that allowed the virus to spread easily. Further, he
alleges that the Defendants did not utilize the various methods of
releasing prisoners to prevent overcrowding in the prisons. Lastly,
he requests that the case be certified as a class action, with him
representing over 20,000 inmates.
First, because the Plaintiff and his proposed class of 20,000
inmates are not represented by a lawyer, Judge Stadtmueller denies
the request for class certification at this time. Second, as the
Plaintiff drafted the complaint for the purpose of a class action
suit, the complaint does not state with specificity what claims
apply to him, rather than the 20,000 Wisconsin inmates.
The Judge allows the Plaintiff an opportunity to amend his
complaint to expound upon his allegations against the Defendants.
If he chooses to offer an amended complaint, the Plaintiff should
provide the Court with enough facts to answer the following
questions: 1) what actions did each Defendant take or not take that
specifically violated Plaintiff's constitutional rights; and 2)
what injury did the Plaintiff sustain due to the Defendants'
actions or lack of action. The Plaintiff's amended complaint does
not need to be long or contain legal language or citations to
statutes or cases, but it does need to provide the Court and each
Defendant with notice of what each Defendant allegedly did or did
not do to violate his rights.
The Judge encloses a copy of his complaint form and instructions.
The Plaintiff must list all of the Defendants in the caption of his
amended complaint. He should use the spaces on pages two and three
to allege the key facts that give rise to the claims he wishes to
bring, and to describe which Defendants he believes committed the
violations that relate to each claim. If the space is not enough,
the Plaintiff may use up to five additional sheets of paper.
3. Motion for Preliminary Injunction and TRO
On Oct. 13, 2020, the Plaintiff filed a motion for a preliminary
injunction and for a TRO, and a supporting declaration. Then
Plaintiff seeks to have the Defendants and the Wisconsin Department
of Corrections: 1) lower the number of prisoners within the
Wisconsin prison system; 2) move prisoners to specific housing
units if they have tested positive for COVID-19; 3) have all
prisoners in the Wisconsin prison system evaluated for
medically-based release; 4) utilize release methods, with the goals
of releasing at least 500 of the prisoners within 30 days and an
additional 2,000 every six months until the amount of people
confined in the Wisconsin prison system is 15,000; and 5) allow
medical personnel to support prisoners' applications for
medically-based release without retaliation.
To start, Judge Stadtmueller says when the Plaintiff filed his
motion, the many COVID-19 vaccines had not yet been approved for
use. However, now, the vaccines are being distributed to the people
confined in the Wisconsin Prison system. As of Aug. 18, 2021, 69.8%
of the people in the care of the Wisconsin Department of
Corrections have been fully vaccinated. Additionally, there are
only ten active COVID-19 cases in all facilities under the control
of the Wisconsin Department of Corrections and no active cases
where Plaintiff was incarcerated.
With the change in circumstances regarding the COVID-19 pandemic
and vaccines, the Judge finds that the Plaintiff has failed to show
that without the relief requested he will suffer irreparable harm.
Therefore, he denies the Plaintiff's motion for a preliminary
injunction and temporary restraining order.
Conclusion
In sum, Judge Stadtmueller concludes that the Plaintiff will not be
permitted to proceed as the representative of a class, and his
complaint fails to state a claim. The Plaintiff will be permitted
to file an amended complaint. Additionally, the Judge will deny the
Plaintiff's motion for a preliminary injunction and temporary
restraining order.
Accordingly, the Plaintiff's motion for leave to proceed without
prepayment of the filing fee is granted. The complaint fails to
state a claim. The Plaintiff may file an amended complaint that
complies with the instructions in the Order by Sept. 20, 2021. If
he files an amended complaint by the deadline, the Court will
screen the amended complaint under 28 U.S.C. Section 1915A. If the
Plaintiff does not file an amended complaint by the deadline, the
Court will dismiss this case based on his failure to state a claim
in his original complaint and will issue him a "strike" under 28
U.S.C. Section 1915(g).
The Judge denied the Plaintiff's motion for a preliminary
injunction and TRO.
The Clerk's Office mail Plaintiff a blank prisoner complaint form
and a copy of the guides entitled "Answers to Prisoner Litigants'
Common Questions" and "Answers to Pro Se Litigants' Common
Questions," along with the Order.
The Plaintiff must pay the $326.28 balance of the filing fee over
time as he is able. His payments will be clearly identified by the
case name and number assigned to this action. Plaintiff may mail
his payments to the Clerk's Office at Office of the Clerk, United
States District Court, Eastern District of Wisconsin, 362 United
States Courthouse, 517 E. Wisconsin Avenue, Milwaukee, Wisconsin
53202.
The Plaintiff must submit the original document for each filing to
the Court to the following address: Office Eastern District of
Wisconsin 362 United States Courthouse 517 E. Wisconsin Avenue
Milwaukee, Wisconsin 53202. The Plaintiff is advised not to mail
anything directly to the Judge's chambers as it will only delay the
processing of the matter.
The Plaintiff is further advised that failure to make a timely
submission may result in the dismissal of the case for failure to
diligently pursue it. In addition, the parties must notify the
Clerk of Court of any change of address. Failure to do so could
result in orders or other information not being timely delivered,
thus affecting the legal rights of the parties.
A full-text copy of the Court's Aug. 20, 2021 Order is available at
https://tinyurl.com/wk9yvhn from Leagle.com.
WW INTERNATIONAL: Membership Fees Related Suit Nixed w/ Prejudice
-----------------------------------------------------------------
WW International, Inc. said in its Form 10-Q Report filed with the
Securities and Exchange Commission on August 10, 2021, for the
quarterly period ended July 3, 2021, that the court in a, class
action suit filed by Workshops + Digital member, granted the
Company's motion to dismiss with prejudice.
In June 2020, a Workshops + Digital (then known as Studio +
Digital) member filed a class action complaint against the Company
in the Superior Court of California in Ventura County.
The complaint was filed on behalf of all Workshops + Digital
members nationwide and regarded the fees charged for Workshops +
Digital memberships since the replacement of in-person workshops
with virtual workshops in March 2020 in response to the COVID-19
pandemic.
The complaint alleged, among other things, that the Company's
decision to charge its members the full Workshops + Digital
membership fee while only providing a virtual workshop experience
violated California state consumer protection laws and gave rise to
claims for breach of contract, fraud, and other tort causes of
action based on the same factual allegations that were the basis
for the breach of contract claim.
The plaintiff sought to recover damages plus injunctive relief to
enjoin the Company from engaging in similar conduct in the future
on behalf of the class members.
On July 30, 2020, the Company filed a notice to remove the matter
to the United States District Court for the Central District of
California, and per the parties' stipulation, on August 7, 2020,
the case was transferred to the United States District Court for
the Southern District of New York.
On September 23, 2020, the Company filed a motion to dismiss all of
the plaintiff's claims with prejudice.
At the parties' September 29, 2020 preliminary conference, the
court issued an order permitting the plaintiff to either submit her
opposition to the motion to dismiss or file an amended complaint by
October 14, 2020.
On October 14, 2020, the plaintiff filed an amended complaint with
predominantly the same claims. The Company filed another motion to
dismiss the matter on November 4, 2020. The plaintiff filed her
opposition brief on November 19, 2020, and the Company filed its
reply brief on November 25, 2020.
On May 24, 2021, the court granted the Company's motion to dismiss
with prejudice.
WW International, Inc. provides weight control programs. The
Company offers subscriptions for commitment plans that give their
clients access to meetings and online subscriptions. WW
International also gives their members guidance and access to a
supportive community to help enable them for healthy habits. The
company is based in New York, New York.
ZOSANO PHARMA: Bid to Junk Consolidated Stockholders Suit Pending
-----------------------------------------------------------------
Zosano Pharma Corporation said in its Form 10-Q Report filed with
the Securities and Exchange Commission on August 10, 2021, for the
quarterly period ended June 30, 2021, that the motion to dismiss
the consolidated "Carr" and "Becerra" class action suit, is
pending
On October 29, 2020 and November 6, 2020, two stockholders filed
alleged class action lawsuits against the company and certain of
its current and former executive officers in the United States
District Court for the Northern District of California: Carr v.
Zosano Pharma Corporation, et al., Case No. 3:20-cv-07625, and
Becerra v. Zosano Pharma Corporation, et al., Case No.
3:20-cv-07850.
The complaints were filed purportedly on behalf of all persons who
purchased or otherwise acquired the company's securities between
February 13, 2017 and September 30, 2020 (the "Class Period").
The complaints allege that the company and certain of its current
and former executive officers made false and/or misleading
statements and failed to disclose material adverse facts about the
company's business, operations and prospects in violation of
Sections 10(b) (and Rule 10b-5 promulgated thereunder) and 20(a) of
the Securities Exchange Act of 1934, as amended.
The plaintiffs seek damages, interest, costs, attorneys' fees and
other unspecified relief.
On February 4, 2021, the Carr and Becerra actions were consolidated
and the court appointed two Co-Lead Plaintiffs and two law firms as
Co-Lead Counsel in the consolidated action .
The Co-Lead Plaintiffs filed their consolidated amended complaint
on March 30, 2021, which alleges the same claims as the previous
complaints and extends the Class Period through October 20, 2020.
The company filed a motion to dismiss the consolidated amended
complaint on May 14, 2021; the Co-Lead Plaintiffs filed their
opposition brief on June 14, 2021; and the company filed a reply
brief on July 6, 2021.
The hearing on the motion was held on July 22, 2021 and the court
took the motion under submission.
Zosano Pharma Corporation is a clinical stage specialty
pharmaceutical company based in Fremont, California. The Company
has developed a proprietary transdermal microneedle patch system,
which delivers proprietary formulations of existing drugs through
the skin for the treatment of a variety of indications. The company
is based in Fremont, California.
*********
S U B S C R I P T I O N I N F O R M A T I O N
Class Action Reporter is a daily newsletter, co-published by
Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania,
USA, and Beard Group, Inc., Washington, D.C., USA. Rousel Elaine T.
Fernandez, Joy A. Agravante, Psyche A. Castillon, Julie Anne L.
Toledo, Christopher G. Patalinghug, and Peter A. Chapman, Editors.
Copyright 2021. All rights reserved. ISSN 1525-2272.
This material is copyrighted and any commercial use, resale or
publication in any form (including e-mail forwarding, electronic
re-mailing and photocopying) is strictly prohibited without prior
written permission of the publishers.
Information contained herein is obtained from sources believed to
be reliable, but is not guaranteed.
The CAR subscription rate is $775 for six months delivered via
e-mail. Additional e-mail subscriptions for members of the same
firm for the term of the initial subscription or balance thereof
are $25 each. For subscription information, contact
Peter A. Chapman at 215-945-7000.
*** End of Transmission ***