/raid1/www/Hosts/bankrupt/CAR_Public/210913.mbx
C L A S S A C T I O N R E P O R T E R
Monday, September 13, 2021, Vol. 23, No. 177
Headlines
20E FRAME INC: Salmeron Sues Over Restaurant Staff's Unpaid Wages
3M COMPANY: Season 4 Filed a Motion to Quash in a Consumer Suit
ADVANCED CLEANING: Faces Gonzalez Suit Over Cleaners' Unpaid Wages
ALDI INC: C.D. California Enters Final Judgment in Gant FLSA Suit
AMERICAN HONDA: Lanouette Seeks Insurance Fee Refund
ANGRY CRAB: Faces Cruz Suit Over Failure to Pay Proper OT Wages
ANTONELLO RISTORANTE: Morales Files ADA Suit in C.D. California
BANK OF AMERICA: Leyse Files Certiorari Petition in TCPA Suit
BLIBAUM & ASSOCIATES: Dismissal of Chavis' MCDA/MCPA Claims Flipped
BWW RESOURCES: DeVore Labor Code Suit Goes to E.D. California
CALIFORNIA: Castaneda Suit Transferred to C.D. California
CALIFORNIA: E.D. Cal. Grants Bids to Dismiss Stoia Class Suit
CANTONI ORANGE: Alonzo Files ADA Suit in C.D. California
CARTER INSURANCE: Bobbs Suit Alleges Unpaid Wages for Adjusters
COMPREHENSIVE HEALTHCARE: W.D. Pa. Narrows Claims in Blair Suit
COSTCO WHOLESALE: Faces Akers Suit Over Mislabeled Flavored Water
DIETITIANS AT HOME: Court Certifies Class of RDs in Perizes Suit
DOLLAR BANK: Columbian Spot Sues Over Illegal Overdraft Fee Charges
EC PETE'S: Pinola Files Suit in Cal. Super. Ct.
EFFY & CO: Calcano Files ADA Suit in S.D. New York
ELI LILLY: Grimes Files Discrimination Suit in S.D. Ind.
ESCOBAR CONSTRUCTION: Court Resolves Discovery Issues in Perez Suit
FACEBOOK INC: N.D. California Refuses to Remand Rosenman Class Suit
GINKGO INTERNATIONAL: Calcano Files ADA Suit in S.D. New York
GLAMOURTRESS.COM: Crosson Files ADA Suit in E.D. New York
GLASSFAB TEMPERING: Estrada Files Suit in Cal. Super. Ct.
GRUNT STYLE: Martinez Files ADA Suit in E.D. New York
HARRY N. ABRAMS: Calcano Files ADA Suit in S.D. New York
HELION TECHNOLOGIES: Summary Judgment Bid in Johnson Suit Denied
JUUL LABS: Ogden School Sues Over E-Cigarette Campaign to Youth
JUUL LABS: Provo City Sues Over Youth's E-Cigarette Addiction
KONINKELIJKE PHILIPS: Bemiss Sues Over Health Risks of CPAP Devices
LJ ROSS: Appeals Denied Summary Judgment Bid in Rosen FDCPA Suit
LOANDEPOT INC: TCPA Related Class Suit Settled Individually
LOWE'S HOME: New York Court Narrows NYLL Claims in Rodrigue Suit
MANNKIND CORP: Putative Class Action in Tel Aviv Dismissed
MCCREARY VESELKA: Appeals Class Certification in Perez FDCPA Suit
MONEY NETWORK: Fails to Secure Money Cards, Evans Suit Alleges
NATIONSTAR MORTGAGE: Dismissal of Kemp's MCDCA Claim Upheld in Part
NEONODE INC: Continues to Defend Purported Class Suit in Delaware
NETFLIX INC: Estate of Herndon Removed to N.D. California
NEUBASE THERAPEUTICS: Awaits Court Ruling on Lehman Appeal
NEUBASE THERAPEUTICS: Wheby Class Action vs Ohr Pharma Ongoing
ODDFELLOWS MANAGEMENT: Fischler Files ADA Suit in S.D. New York
PARAMONT BEAUTY: Ouedraogo Sues Over Unpaid Overtime Wages
PAYSIGN INC: Bid to Nix Consolidated Securities Class Suit Pending
PEOPLECONNECT INC: Fry Files Suit in W.D. Washington
PERRIGO CO: Baton Class Suit in Tel Aviv Still Stayed
PERRIGO CO: Bids for Summary Judgment in Roofers' Suit Pending
PERRIGO CO: Clobetasol Price-Fixing Related Suits Underway
PERRIGO CO: Litigation Over Contaminated Ranitidine Ongoing
PERRIGO CO: Overarching Conspiracy Related Suits Ongoing
PHENIXFIN CORP: Proposed Order of Atty's Fees Payment OK'd in Kahn
PHENIXFIN CORP: Solomon Revised Agreement Granted Final Approval
PHILADELPHIA, PA: Williams May File 2nd Amended Suit, Court Says
PHILIPS RS: Bleakney Consumer Suit Removed to W.D. Pennsylvania
PLAINVILLE GAMING: Katopodis Sues Over Unfair and Deceptive Acts
POWER PARAGON: Burns Labor Suit Removed to C.D. California
RA MEDICAL: Hearing on Bid to Dismiss Derr Suit Set for Oct. 12
REPRO MED: Plaintiff Files Notice of Voluntary Dismissal
REVCO SOLUTIONS: Stroman Files FDCPA Suit in D. New Jersey
ROANOKE, VA: Firefighters Seek Unpaid Overtime Pay
SAINT ELIZABETH: Beckerich Sues Over Forced COVID-19 Vaccination
SANDRIDGE MISSISSIPPIAN: D&V Bid to File Amended Complaint Pending
SCIENTIFIC GAMES: Tonkawa Tribe Suit Transferred to N.D. Illinois
SENIOR GENERAL: Fails to Provide Proper Wages, Gomez Suit Says
SFC GLOBAL: Illinois Court Narrows Claims in Jackson ICFA Suit
SIERRA PACIFIC: Smith Files Suit in Cal. Super. Ct.
SMG/LONG BEACH: Acosta Labor Suit Removed to C.D. California
SODEXO INC: Meza Wage-and-Hour Suit Goes to C.D. California
STABLE ROAD: Project Marvel Merger Related Suits Underway
STATEWIDE FUMIGATION: Denial of Arbitration in Delgado Suit Upheld
SUNDANCE INC: Morgan Files Certiorari Petition in FLSA Suit
T-MOBILE USA: Hamilton-Bynum Sues Over Data Breach
T-MOBILE USA: Hill Files Suit in W.D. Missouri
TEAM PRIOR: Maine District Court Reinstates Anderson FLSA Suit
UNITED STATES: Attorney's Fees in Thomas Suit Affirmed in Part
UNITED STATES: Bid for Habeas Corpus in Counterman v. FCI Denied
UNITED STATES: Habeas Corpus Bid in Fleming v. FCI Schuylkill Nixed
VALVE CORP: G.G.'s Bid for Production of Steam Users Data Denied
VENUS CONCEPT: Final Approval of Settlement in IPO Suit Pending
VIRGIN AMERICA: Certiorari Petition Filed in Bernstein Labor Suit
VROOM INC: Consolidated Putative Class Suit Underway in New York
WATTS WATER: Wins Bid to Enforce Final Order in Trabakoolas Suit
WORLDWIDE FLIGHT: Stanich Sues Over Failure to Pay Overtime Wages
ZEHANA INTERIORS: Morales Sues Over Non-Blind Friendly Website
*********
20E FRAME INC: Salmeron Sues Over Restaurant Staff's Unpaid Wages
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FELIX SALMERON, on behalf of himself, and the Class, Plaintiff v.
20E FRAME INC. d/b/a ETC. EATERY; 341 FRAME INC. d/b/a ETC. EATERY;
PYONG SU SON; and ELLY KIM, Defendants, Case No. 522445/2021 (N.Y.
Sup. Ct., Kings Cty., Sep. 1, 2021) is brought by the Plaintiff to
recover from Defendants unpaid wages due to time shaving, unpaid
overtime wages, improperly deducted meal credits, statutory
penalties, liquidated damages and attorneys' fees and costs, under
the New York Labor Law.
In September 2018, the Plaintiff was hired by the Defendants to
work as a floorman at 341 FRAME, until around February 2019.
Shortly thereafter, in February 2019, the Plaintiff was hired once
again by Defendants to work as a floorman at 20E FRAME, where
Plaintiff worked until September 2019 when Defendants ultimately
terminated his employment.
The Defendants collectively own and operate four self-serve gourmet
eateries under the trade names "ETC. EATERY," including two located
in New York City.[BN]
The Plaintiff is represented by:
C.K. Lee, Esq.
Anne Seelig, Esq.
LEE LITIGATION GROUP, PLLC
148 West 24th Street, 8th Floor
New York, NY 10011
Telephone: (212) 465-1188
Facsimile: (212) 465-1181
3M COMPANY: Season 4 Filed a Motion to Quash in a Consumer Suit
---------------------------------------------------------------
In the putative class action lawsuit IN RE: 3M COMBAT ARMS EARPLUG
PRODUCTS LIABILITY LITIGATION, Case No. 3:21-cv-16546-ZNQ-DEA,
non-party Season 4, LLC filed with the U.S. District Court for the
District of New Jersey a motion to quash and for a protective order
on September 3, 2021 concerning the subpoena issued by Defendants
3M Company, 3M Occupational Safety LLC, Aearo Holding LLC, Aearo
Intermediate LLC, Aearo LLC, and Aearo Technologies LLC.
Season 4, LLC is a group of online professionals based in New
Jersey.
3M Company is an American multinational conglomerate corporation
headquartered in Minnesota.
3M Occupational Safety LLC is a personal protective equipment
manufacturer based in Minnesota.
Aearo Holding LLC is a nonmetallic mineral product manufacturer
based in Minnesota.
Aearo Intermediate LLC is a subsidiary of 3M Company, headquartered
in Indiana.
Aearo LLC is a manufacturer of personal protection equipment based
in Indiana.
Aearo Technologies LLC is a subsidiary of 3M Company, headquartered
in Indiana. [BN]
The Non-party is represented by:
Jeffrey M. Pollock, Esq.
Dominique J. Carroll, Esq.
FOX ROTHSCHILD LLP
997 Lenox Drive
Lawrenceville, NJ 08648
Telephone: (609) 896-3600
Facsimile: (609) 896-1469
E-mail: jmpollock@foxrothschild.com
djcarroll@foxrothschild.com
ADVANCED CLEANING: Faces Gonzalez Suit Over Cleaners' Unpaid Wages
------------------------------------------------------------------
FERMIN GONZALEZ, BECKIS GRISELDA TURCIOS, and SANDRA BONILLA,
individually and on behalf of others similarly situated, Plaintiffs
v. ADVANCED CLEANING SERVICES OF LONG ISLAND, INC. (D/B/A ADVANCED
CLEANING SERVICES OF LONG ISLAND), CREATE A COLOR CARPET
SPECIALISTS, INC., RICK SCARPINELLA, and MELISSA SCARPINELLA,
Defendants, Case No. 1:21-cv-04931 (E.D.N.Y., Sep. 1, 2021) is
brought by the Plaintiffs for unpaid minimum and overtime wages
pursuant to the Fair Labor Standards Act of 1938 and for violations
of the New York Labor Law, including applicable liquidated damages,
interest, attorneys' fees and costs.
Plaintiffs Gonzalez, Griselda, and Bonilla were employed by the
Defendants at Advanced Cleaning Services of Long Island from
approximately 2013 to 2014 until February 26, 2021; August 2018
until December 2020; and March 2015 until October 20, 2020,
respectively.
The Defendants own, operate, or control a cleaning service company,
located at 33 Comac Loop in Ronkonkoma, New York under the name
"Advanced Cleaning Services of Long Island."[BN]
The Plaintiffs are represented by:
Michael Faillace, Esq.
MICHAEL FAILLACE & ASSOCIATES, P.C.
60 East 42nd Street, Suite 4510
New York, NY 10165
Telephone: (212) 317-1200
Facsimile: (212) 317-1620
ALDI INC: C.D. California Enters Final Judgment in Gant FLSA Suit
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Judge John A. Kronstadt of the U.S. District Court for the Central
District of California enters Judgment in the cases, JEREE GANT,
individually, and on Lead behalf of other members of the general
PLA public similarly situated, Plaintiff v. ALDI, INC., a
California corporation; AI CALIFORNIA LLC, an unknown business
entity; and DOES 1 through 100, inclusive, Defendants, JENNIFER
LACEY-SALAS, an individual, on behalf of herself and on behalf of
all persons similarly situated, Plaintiff v. ALDI, INC., a
California corporation; AI CALIFORNIA LLC, a Limited Liability
Company; and DOES 1 through 50, Inclusive, Defendants, Consolidated
Case No. 2:19-cv-06741-JAK-PLA, Case No. 2:19-cv-03109-JAK (C.D.
Cal.).
Except as set forth in the Class and Collective Action Settlement
Agreement and Release and the Final Approval Order, the Plaintiffs,
the Participating Class Members, and the Participating FLSA
Members, will take nothing by the Consolidated Class/Collective
Action. Each party will bear its own attorneys' fees and costs,
except as otherwise provided in the Settlement Agreement and Final
Approval Order.
The following individuals timely and validly requested exclusion
from the Class Settlement, and thereby, are not bound by the Class
Settlement: Samuel Rotter and Javier Mendez.
Judge Kronstadt enters Judgment by which all the Participating
Class Members are bound by the Class Settlement, and will be deemed
to have given a release of any and all Released Class Claims
against the Released Parties, as set forth in the Settlement
Agreement.
The Judge enters Judgment by which all the Participating FLSA
Members will be bound by the FLSA Settlement and part of the FLSA
Collective, and will be deemed to have given a release of any and
all Released FLSA Claims against the Released Parties, as set forth
in the Settlement Agreement.
As used in the Judgment, the quoted terms have the meanings set
forth:
a. "Class" or "Class Members" means all current and former
hourly-paid or non-exempt employees who worked for any of the
Defendants within the State of California at any time during the
period from Febr. 14, 2015 through June 29, 2020.
b. Class Period means the period from Feb. 14, 2015 through
June 29, 2020.
c. "Class Settlement" means the settlement and resolution of
Released Class Claims, which will be binding on all Participating
Class Members.
d. "Consolidated Class/Collective Action" means the
consolidated action that includes Jeree Gant v. ALD1, Inc., et al.,
United States District Court for the Central District of
California, Case No. 2:19-cv-03109-JAK-PLA; and Jennifer
Lacey-Salas v. ALDI Inc., et al., United States District Court for
the Central District of California, Case No.
2:19-cv-06741-JAK-PLA.
e. "FLSA Members" means all current and former hourly-paid or
non-exempt employees who worked for any of the Defendants within
the State of California at any time during the period from Feb. 14,
2016 through June 29, 2020.
f. "FLSA Period" means the period from Feb. 14, 2016 through
June 29, 2020.
g. "FLSA Settlement" means the settlement and resolution of
Released FLSA Claims, which will be binding on all Participating
FLSA Members.
h. "Participating Class Members" means all the Class Members
who did not submit a timely and valid Request for Exclusion to the
Settlement Administrator.
i. "Participating FLSA Members" means all FLSA Members who
endorse and negotiate their FLSA Payment, and who are thereby
deemed to have opted into and are bound by the FLSA Settlement.
j. "Released Class Claims" means any and all claims, rights,
demands, liabilities and causes of action, whether known or
unknown, that were asserted or that could have been asserted and
arise from the same set of operative facts alleged in the operative
complaints of the Consolidated Class/Collective Action during the
Class Period, including, but not limited to, all claims under
California Labor Code Sections 201-204, 210, 226, 226.7, 510, 512,
558, 1174, 1194, 1197, 1197.1, 1198, 2800, 2802, any applicable
California Industrial Welfare Commission Wage Order, claims under
the California Unfair Competition Law, California Business &
Professions Code Sections 17200, et seq., and any remedies for any
of the claims described herein, including, damages, penalties,
restitution, declaratory relief, equitable or injunctive relief,
interest, attorneys' fees and costs. The Released Class Claims
exclude all claims for civil penalties under the Private Attorneys
General Act, California Labor Code Sections 2698, et seq. ("PAGA")
and all claims provided for under the Fair Labor Standards Act, 29
U.S.C. Sections 201, et seq.
k. "Released FLSA Claims" means any and all claims, rights,
demands, liabilities and causes of action, whether known or
unknown, that were asserted or reasonably could have been asserted
based on the facts already alleged in the operative complaints of
the Consolidated Class/Collective Action during the FLSA Period,
for any alleged violations under the FLSA, 29 U.S.C. Sections 201,
et seq., including, but not limited to, failure to pay minimum wage
or failure to pay overtime under the FLSA. The Released FLSA Claims
covers only claims provided for under FLSA.
l. "Released Parties" means Defendants, their former, present
and future owners, parents, subsidiaries and affiliates, and all of
their current, former and future officers, directors, members,
shareholders, managers, human resources representatives, employees,
agents, principals, heirs, representatives, accountants, auditors,
consultants, insurers and reinsurers, and attorneys of the entities
listed.
After entry of the Judgment, the Court will retain jurisdiction to
construe, interpret, implement, and enforce the Settlement
Agreement and the Judgment, to hear and resolve any contested
challenge to a claim for settlement benefits, and to supervise and
adjudicate any dispute arising from or in connection with the
distribution of settlement benefits.
The Judgment is intended to be a final disposition of the Action in
its entirety and is intended to be immediately appealable.
Notice of entry of the Judgment will be given to the Participating
Class Members and the Participating FLSA Members by posting a copy
of the Judgment on Simpluris, Inc.'s website for a period of at
least 60 calendar days after the date of entry of the Judgment.
Individualized notice is not required.
A full-text copy of the Court's Aug. 25, 2021 Judgment is available
at https://tinyurl.com/3rnew9ju from Leagle.com.
AMERICAN HONDA: Lanouette Seeks Insurance Fee Refund
----------------------------------------------------
Brian Lanouette, Plaintiff, on behalf of herself and all others
similarly situated brings this class action complaint against
American Honda Finance Corporation, Defendant, Case No.
21-cv-07068, (C.D. Cal., September 1, 2021) seeks refund of fees,
damages, restitution and injunctive relief for breach of contract
including breach of the covenant of good faith and fair dealing,
California's Unfair Competition Law and Consumer Legal Remedies Act
and Massachusetts Consumer Protection Act.
American Honda Finance Corporation addresses the financing needs of
consumers of Honda products by offering financing in the form of
both retail installment contracts and leases.
Guaranteed Asset Protection (GAP) Waivers insurance is a contract
between an insurance company and a consumer, in which the insurer
agrees to cover the consumer's GAP in the event of a total loss of
the vehicle. With GAP insurance, if a total loss occurs and the
current value of the vehicle is worth less than the amount owed to
the creditor, then the insurance company will pay the creditor the
difference. In other words, the insurance company is paying off the
loan balance on the consumer's behalf.
On October 31, 2017, Lanouette purchased a new 2017 Honda CR-V and
GAP Waiver from Boch Honda West, a Honda dealership located in
Westford, Massachusetts. The optional GAP Waiver was for a total of
$750.00. The GAP Waiver provides that the contract may be cancelled
or terminated at the will of the purchaser, including in instances
where the "financing contract has been paid in full."
On June 29, 2021, Lanouette paid off the remaining balance on his
vehicle loan, thereby satisfying the financing contract in full and
cancelling the GAP Waiver contract before the full term of the loan
had passed. But despite prepaying the financing contract in full
approximately 28 months early, Lanouette did not receive a refund
of a pro rata share of the $750 GAP fee. [BN]
Plaintiff is represented by:
Sophia G. Gold, Esq.
KALIEL PLLC
950 Gilman Street, Suite 200
Berkeley, CA 94710
Telephone: (202) 350-4783
Email: sgold@kalielpllc.com
- and -
Jeffrey Kaliel, Esq.
KALIEL PLLC
1100 15th Street NW, 4th Floor
Washington, DC 20005
Telephone: (202) 350-4783
Email: jkaliel@kalielpllc.com
sgold@kalielpllc.com
ANGRY CRAB: Faces Cruz Suit Over Failure to Pay Proper OT Wages
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CRISTHIAN RON RODRIGUEZ CRUZ, individually and on behalf of a class
of persons similarly situated, Plaintiff v. ANGRY CRAB CORPORATION;
DAVID NGUYEN; and VINH NGUYEN, Defendants, Case No. 1:21-cv-04687
(N.D. Ill., Sep. 1, 2021) is brought by the Plaintiff pursuant to
the Fair Labor Standards Act, the Illinois Minimum Wage Law, and
the City of Chicago Minimum Wage Ordinance arising from the
Defendants' failure to provide regular hourly rates of pay when the
employees worked overtime.
Plaintiff Cruz was hired in October 2019 by Defendant David Nguyen
to work for Defendants primarily as a line cook and also as a dish
washer. Neither position involves customer contact and neither
position is a customarily tipped position in the restaurant
industry.
The Defendants currently operate two restaurant locations in
Chicago, Illinois, both doing business as "The Angry Crab" and
"Angry Crab Chicago."[BN]
The Plaintiff is represented by:
Jeffrey Grant Brown, Esq.
JEFFREY GRANT BROWN, P.C.
65 West Jackson Blvd. Suite 107
Chicago, IL 60604
Telephone: (312) 789-9700
ANTONELLO RISTORANTE: Morales Files ADA Suit in C.D. California
---------------------------------------------------------------
A class action lawsuit has been filed against Antonello Ristorante,
Inc., et al. The case is styled as Nataly Morales, individually and
on behalf of all others similarly situated v. Antonello Ristorante,
Inc., a California corporation; Does 1 to 10 inclusive; Case No.
2:21-cv-06955-FLA-JPR (C.D. Cal., Aug. 27, 2021).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Antonello Ristorante -- http://www.antonello.com/-- is an Italian
restaurant offering Classic Northern Italian menu is served in a
ritzy space with an old-world Tuscan vibe.[BN]
The Plaintiff is represented by:
Binyamin I. Manoucheri, Esq.
Jasmine Behroozan, Esq.
Thiago Merlini Coelho, Esq.
WILSHIRE LAW FIRM
3055 Wilshire Boulevard 12th Floor
Los Angeles, CA 90010
Phone: (213) 381-9988
Fax: (213) 381-9989
Email: binyamin@wilshirelawfirm.com
jasmine@wilshirelawfirm.com
thiago@wilshirelawfirm.com
BANK OF AMERICA: Leyse Files Certiorari Petition in TCPA Suit
-------------------------------------------------------------
Plaintiff Mark Leyse filed with the Supreme Court of United States
a petition for a writ of certiorari in the matter styled Mark
Leyse, Petitioner v. Bank of America, National Association,
Respondent, Case No. 21-318.
Response is due on October 1, 2021.
Mr. Leyse petitions for a writ of certiorari to review the judgment
of the United States Court of Appeals for the Third Circuit in the
case titled MARK LEYSE, Individually and on Behalf of All Others
Similarly Situated, Appellant v. BANK OF AMERICA NATIONAL
ASSOCIATION, Appellee, Case No. 20-1666. The Third Circuit affirmed
the District Court's order granting the Defendant's motion for
summary judgment.
As previously reported in the Class Action Reporter, the Plaintiff
brought an action under the Telephone Consumer Protection Act after
receiving a prerecorded telemarketing call on the landline he
shares with his roommate. Leyse's complaint contains a single count
for violation of the TCPA.
On March 11, 2005, DialAmerica Marketing, Inc., on behalf of Bank
of America, called the residential telephone line that Leyse shared
with his roommate, Genevieve Dutriaux. Leyse answered the call.
DialAmerica did not have a sales representative available to handle
the call when it was made, and therefore it played the following
prerecorded message: "This call is on behalf of Bank of America at
1-800-201-6872 for telemarketing purposes. We're sorry we missed
you and we will try calling back at another time."
At the time of the call, Leyse worked as an investigator for
Attorney Todd C. Bank, helping him prepare TCPA lawsuits. In this
role, Leyse made investigative calls to companies to determine the
number and frequency of the calls they made. During these calls,
Leyse used a false name, withheld the true purpose of the calls,
and secretly recorded them. He then provided the recordings to Bank
to use in TCPA suits such as this one.
After the March 11 call, Leyse placed and recorded over 20 calls to
DialAmerica and provided the recordings to Bank. During these
calls, Leyse used a false name and employer and asked DialAmerica
about the services it provided, the numbers it called, the dialing
system it used, the number of recorded messages it left per day,
and whether the representatives knew that the call violated the
TCPA. When twice asked by DialAmerica representatives if he wanted
to be added to their Do-Not-Call list, Leyse declined.
Mr. Leyse sued Bank of America on Dec. 5, 2011. The First Amended
Class Action Complaint contains a single count of violation of the
TCPA. Leyse does not allege that he suffered any annoyance or
nuisance from the call and seeks only statutory damages.[BN]
Plaintiff-Appellant-Petitioner Mark Leyse, Individually and on
Behalf of All Others Similarly Situated, is represented by:
Daniel Adam Osborn, Esq.
OSBORN LAW PC
43 West 43rd Street Suite 131
New York, NY 10036
Telephone: (212) 725-9800
E-mail: dosborn@osbornlawpc.com
BLIBAUM & ASSOCIATES: Dismissal of Chavis' MCDA/MCPA Claims Flipped
-------------------------------------------------------------------
In the case, Larry S. Chavis, ET AL. v. BLIBAUM & ASSOCIATES, P.A.
BRYIONE K. MOORE, ET AL. v. PEAK MANAGEMENT LLC, No. 30, September
Term, 2020 (Md. App.), the Court of Appeals of Maryland reversed
the judgment of the Court of Special Appeals, and remanded the case
to the Court of Special Appeals with instructions to remand the
cases to the circuit courts for Baltimore City and Baltimore County
for further proceedings consistent with the Opinion.
The judgment dismissed the Plaintiffs' claims under the Maryland
Consumer Debt Collection Act ("MCDCA"), Md. Code Ann., and the
Maryland Consumer Protection Act ("MCPA"), CL, Title 13.
In Ben-Davies v. Blibaum & Assocs., P.A., 457 Md. 228 (2018), the
Court answered a certified question from the U.S. District Court
for the District of Maryland regarding the correct legal rate of
post-judgment interest where a landlord has obtained a judgment
against a residential tenant for breach of contract. The Court of
Appeals held in Ben-Davies that "where a landlord sues a tenant for
breach of contract based on a residential lease, and the trial
court enters judgment in the landlord's favor against the tenant
and the judgment includes unpaid rent and other expenses, a
post-judgment interest rate of 6% applies."
Petitioners Bryione Moore, Albert Grantham, Patricia Grantham,
Sharone Crowell, Larry S. Chavis, Laronda Green, and Cassandra Reid
rented residential properties managed by Respondent Peak or another
entity. After Petitioners defaulted on their leases, Peak or
another entity engaged Respondent Blibaum, a law firm, to file suit
against the Petitioners in the District Court of Maryland for
breach of contract. Blibaum obtained judgments against Petitioners
that included amounts of unpaid rent, and subsequently attempted to
collect on the judgments by garnishing the Petitioners' wages. In
the requests for writs of garnishment, Blibaum included
post-judgment interest at a rate of 10% as well as post-judgment
court costs (the filing fees for the writs of garnishment). The
collection activity occurred before the Court of Appeals issued its
opinion in Ben-Davies.
Several of the Petitioners filed a putative class action lawsuit in
the Circuit Court for Baltimore City against Peak in which they
claimed, among other things, that Peak violated the MCDCA,
Commercial Law Article ("CL"), Title 14, Subtitle 2, and MCPA, by
obtaining writs of garnishment that charged post-judgment interest
at a rate of 10%, rather than 6%, and by including post-judgment
court costs (i.e., filing fees for the requests for writs of
garnishment) in the amounts sought to be garnished. Several of the
Petitioners filed a similar lawsuit against Blibaum in the Circuit
Court for Baltimore County.
In the Baltimore City case, Peak moved to dismiss the MCDCA and
MCPA claims, and the circuit court granted that motion. After that
ruling, the Petitioners moved for class certification with respect
to the sole claim remaining at that time, which was for unjust
enrichment. The circuit court denied the motion for class
certification after holding a hearing.
The Petitioners then filed a second motion for class certification
and requested a hearing. The circuit court denied the second motion
for class certification without a hearing. It subsequently ruled on
the parties' cross-motions for summary judgment, resolving the
unjust enrichment claims as to the named plaintiffs. Meanwhile, in
the Baltimore County case, Blibaum filed a motion to dismiss all
claims, which the circuit court granted.
On appeal, the Court of Special Appeals consolidated the two cases
for decision and held that both circuit courts properly dismissed
the MCDCA and MCPA claims. With respect to the case against Peak,
the court also affirmed the denial of the second motion for class
certification. The Petitioners sought further review in the Court
of Appeals. On Oct. 6, 2020, the Court of Appeals granted their
petition.
The Respondents argue that the judgment of the Court of Special
Appeals with respect to the MCDCA and MCPA claims should be
affirmed because the Petitioners impermissibly seek to hold them
liable for collecting certain amounts from the Petitioners, rather
than challenging the methods the Respondents used to collect those
debts. In addition, the Respondents contend that, prior to the
Court of Appeals' deciding Ben-Davies, it was impossible for a debt
collector to have the requisite knowledge under the MCDCA that the
collector lacked the right to charge post-judgment interest at a
rate of 10%. They also argue that they were permitted to include
the post-judgment court costs to obtain the writs of garnishment in
the total amounts subject to garnishment.
The Petitioners present two questions for review, which the Court
of Appeals has rephrased as follows:
I. Did the Petitioners properly state a claim under the MCDCA,
CL Section 14-202(8), based on: (a) the Respondents' collection of
post-judgment interest at a rate of 10% prior to the Court of
Appeal's decision in Ben-Davies; and/or (b) the Respondents'
inclusion of filing fees to obtain the writs of garnishment in the
amounts sought to be garnished?
II. Under Maryland Rule 2-231, where a circuit court has
previously denied a motion for class certification after holding a
hearing, does the circuit court abuse its discretion by denying a
subsequent motion for class certification without conducting
another hearing?
The Court of Appeals opines that the Petitioners have properly
stated a claim under the MCDCA and the MCPA based on the
Respondents' collection of post-judgment interest at a rate of 10%,
when in fact, the applicable legal rate was 6%. Accordingly, the
circuit courts incorrectly granted the Respondents' motions to
dismiss the MCDCA and MCPA claims to the extent they are based on
the Respondents' collection of post-judgment interest at the higher
rate. However, the Court of Appeals opines that the Respondents had
the right to include the cost of the filing fees to obtain writs of
garnishment in the amounts they sought to have garnished. Thus, on
remand, to the extent the complaints allege violations of the MCDCA
and the MCPA based on the Respondents' inclusion of such
post-judgment court costs in their requests for writs of
garnishment, those allegations will be stricken.
On remand, the Petitioners will be permitted to file a new motion
for class certification, which the circuit court will deem an
initial motion for class certification under Maryland Rule 2-231.
If the Petitioners file a new motion for class certification, the
court will grant any party's request for a hearing on that motion.
In light of the foregoing, the Court of Appeals reversed the
judgment of the Court of Special Appeals; remanded the case to the
Court of Special Appeals with instructions to remand the cases to
the circuit courts for Baltimore City and Baltimore County for
further proceedings consistent with the Opinion. Costs in the Court
of Appeals and the Court of Special Appeals will be paid by the
Respondents.
A full-text copy of the Court's Aug. 27, 2021 Opinion is available
at https://tinyurl.com/k7vzj4c6 from Leagle.com.
BWW RESOURCES: DeVore Labor Code Suit Goes to E.D. California
-------------------------------------------------------------
The case styled RYAN DEVORE, individually and on behalf of all
others similarly situated v. BWW RESOURCES, LLC; INSPIRE BRANDS,
INC.; BUFFALO WILD WINGS, INC.; and DOES 1 through 20, inclusive,
Case No. 34-2021-00304976, was removed from the Superior Court in
the State of California for the County of Sacramento to the U.S.
District Court for the Eastern District of California on September
3, 2021.
The Clerk of Court for the Eastern District of California assigned
Case No. 2:21-at-00833 to the proceeding.
The case arises from the Defendants' alleged violations of the
California Labor Code and the California Unfair Competition Law
including failure to provide accurate wage statements, failure to
pay minimum wage for all hours worked, failure to provide meal and
rest periods, waiting time penalties, failure to reimburse business
expenses, and civil penalties.
BWW Resources, LLC is a restaurant operator based in Atlanta,
Georgia.
Inspire Brands, Inc. is a multi-brand restaurant company based in
Atlanta, Georgia.
Buffalo Wild Wings, Inc. is an American casual dining restaurant
and sports bar franchise based in Atlanta, Georgia. [BN]
The Defendants are represented by:
Stacey E. James, Esq.
Heidi E. Hegewald, Esq.
LITTLER MENDELSON, PC
501 W. Broadway, Suite 900
San Diego, CA 92101-3577
Telephone: (619) 232-0441
Facsimile: (619) 232-4302
E-mail: sjames@littler.com
hhegewald@littler.com
CALIFORNIA: Castaneda Suit Transferred to C.D. California
---------------------------------------------------------
The case styled as Jose Castaneda, aka James Blume The Executor of
the Estate of Castaneda et al individuals with others and on behalf
of the People of The State of CA similarly situated as they
continued to be abused by the LA Superior Court System and corrupt
Judges eg DeVanon Miller v. State of CA; C.O.L.A.; City of L.A.;
L.AS.C.; State Bar of CA; Steve Kim Mag. Judge; Jack K. Conway,
Disbarred Atty.; Jan W. Anderson; FNU Hickok, Judge; FNU Drewry,
Comm.; FNU Miller, Judge; FNU Devanon, Judge; Sam Paz; Sonia
Mercad; Lisa MacCarley; Emahn Counts; Sevag Nigoghosian; Greg
Blair; Sarah Overton; Robert Felton; Stephen Rykoff; Robert Gomez;
David A Xavier; Michael Flanagan; Wayne Boehle; Oscar Acosta; Chase
Bank, Case No. 1:21-cv-00595, was transferred from the U.S.
District Court for the District of New Mexico to the U.S. District
Court for the Central District of California on Sept. 7, 2021.
The District Court Clerk assigned Case No. 2:21-cv-07156-JFW-KK to
the proceeding.
The nature of suit is stated as 376 Qui Tam for Qui Tam False
Claims Act.
California -- https://www.ca.gov/ -- is a western U.S. state,
stretches from the Mexican border along the Pacific for nearly 900
miles.[BN]
The Plaintiffs appears pro se.
CALIFORNIA: E.D. Cal. Grants Bids to Dismiss Stoia Class Suit
-------------------------------------------------------------
In the case, Andrew Stoia, et al., Plaintiffs v. Betty Yee, et al.,
Defendants, Case No. 2:20-cv-01760-KJM-DMC (E.D. Cal.), Judge
Kimberly J. Mueller of the U.S. District Court for the Eastern
District of California granted the motions to dismiss filed by the
State Defendants and the SEIU Local 2015.
Background
Two In Home Supportive Services (IHSS) providers bring the Section
1983 putative class action against SEIU Local 2015, California
State Controller Betty Yee and Attorney General of California Rob
Bonta, alleging violations of their First and Fourteenth Amendment
rights to free speech and freedom of association, and their
procedural due process rights as well. The Plaintiffs allege they
never authorized union dues deductions and the State Controller
deducted dues from their wages without their consent.
The Plaintiffs are in-home care providers enrolled in California's
Medicaid (Medi-Cal) Program, IHSS. Plaintiff Stoia became an IHSS
provider in 2003 to care for his wife, and Plaintiff Mary
DeLongfield in 2010 to care for her daughter.
Both Stoia and DeLongfield live in counties in which IHSS providers
are represented by SEIU Local 2015 under a collective bargaining
agreement. California law authorizes the State Controller to "make
any deductions from the wages of IHSS personnel, who," like Stoia
and DeLongfield, "are employees of a public authority," if the
deductions are "agreed to by that public authority in collective
bargaining with the designated representative of the IHSS
personnel."
In administering these IHSS programs, the State Controller must
"make, cancel, or change a deduction or reduction at the request of
the organization authorized to receive the deduction or reduction."
The State Controller must also "obtain a certification from any
employee organization requesting a deduction that they have and
will maintain an authorization, signed by the individual from whose
salary or wages the deduction or reduction is to be made." "An
employee organization that certifies that it has and will maintain
individual employee authorizations will not be required to provide
a copy of an individual authorization to the Controller unless a
dispute arises about the existence or terms of the authorization."
The Plaintiffs allege they never joined the SEIU and never
authorized dues deductions. Despite not authorizing SEIU Local 2015
to deduct dues from their wages, the Plaintiffs allege the union
directed the State Controller to deduct money from their paychecks.
Both attempted to stop the deductions.
First, over the years, unaware of the correct process to stop
union-related deductions, Stoia contacted various county IHSS
offices to request they stop dues deductions, but he did not
contact SEIU. In 2009, Stoia's wife did handwrite a letter to SEIU,
but it appears not to have been delivered to the SEIU. The letter
is date-stamped Dec. 22, 2009 by a department for "Adult & Aging."
SEIU has no record of receiving the letter, and the stamp "Adult &
Aging" does not correspond to any stamp used by SEIU; the union has
no department by that name. In 2020, Mr. Stoia spoke with a SEIU
representative and requested it stop all union related deductions.
Second, DeLongfield alleges she first learned dues deductions were
not mandatory in April 2020. She sent SEIU letters requesting it
revoke her dues deductions in April and June.
SEIU eventually cancelled the Plaintiffs' union memberships and
directed the State Controller to stop union dues deductions. On
July 17, 2020, the State Controller ceased deducting union dues and
contributions for SEIU's Committee on Political Education (COPE)
from Stoia's wages. On Aug. 24, 2020, the State Controller ceased
union dues deductions from DeLongfield's paychecks. Soon after the
State stopped deducting union dues and fees, the Plaintiffs brought
the suit under 42 U.S.C. Section 1983 on behalf of themselves and a
putative class, alleging deprivation of their First Amendment
rights to refrain from subsidizing the union's speech through dues,
without written consent as provided in Janus v. AFSCME, 138 S.Ct.
2448 (2018).
Finally, the Plaintiffs assert two state law claims against SEIU:
(1) Unjust enrichment for allegedly confiscating the Plaintiffs'
wages, and (2) Conversion by "ordering the State Controller to
deduct dues" and COPE fees from the Plaintiffs' wages "without
written authorization." The Plaintiffs seek both prospective and
retrospective relief.
The State Defendants and SEIU Local 2015 filed separate motions to
dismiss under Rule 12(b)(1) and Rule 12(b)(6). The Plaintiffs
opposed the motions, which are fully briefed. On May 7, 2021, the
court held a videoconference hearing on the motions. Both motions
overlap substantially, so Judge Mueller addresses them together.
Discussion
I. Standing
The State Defendants argue the Plaintiffs lack standing because
there is no concrete "injury in fact" and the Eleventh Amendment
bars any claims for damages against the State Defendants. They
argue that all deductions had ceased by the time Stoia and
DeLongfield filed this lawsuit, and neither Stoia nor DeLongfield
allege any expectation that deductions from their wages will
resume. For these same reasons, SEIU Local 2015 argues the
Plaintiffs lack standing to seek injunctive relief on behalf of
themselves or any class.
Judge Mueller holds that the challenged deductions stopped before
the lawsuit began, and the Plaintiffs have not alleged or shown any
future violations are more than just a possibility. SEIU, by
contrast, has presented the declaration of its Member Services
Director, Tom Csekey, explaining the union membership department
has "flagged Stoia's and DeLongfield's names in its database" and
any future dues authorization in their names will be brought to Mr.
Csekey's attention for "review and confirmation before any action
is taken to process."
At hearing, the Plaintiffs invoked the case of Uzuegbunam v.
Preczewski, 141 S.Ct. 792, 794 (2021), arguing it stands for the
proposition that a prayer for nominal damages as they seek against
SEIU satisfies the redressability element necessary for Article III
standing including in cases involving Eleventh Amendment immunity.
Judge Mueller holds that nominal damages can be awarded when a
defendant is liable for some harm, but the Plaintiffs cannot prove
an actual injury. In any event, the Plaintiffs mischaracterize the
Court's decision in Uzuegbunam, in which the Court held a "request
for redress in the form of nominal damages does not guarantee entry
to court because the Plaintiff must establish the other elements of
standing and satisfy all other relevant requirements, such as
pleading a cognizable cause of action."
The Plaintiffs also argue the case is not moot because the State
and SEIU could make the same union-related deductions from another
person's wages, relying on City of Los Angeles v. Lyons, 461 U.S.
95, 101-102 (1983). They contend the absence of any independent
verification requirements or State involvement creates a likelihood
of repeated abuse by the union, a "financially interested party,"
without any independent verification by the State Controller.
This argument, Judge Mueller holds, confuses standing and mootness.
Mootness comes into play only if the plaintiffs had standing "at
the commencement of the litigation." If a plaintiff lacks standing
at the time the action commences, the fact that the dispute is
capable of repetition yet evading review will not entitle the
complainant to a federal judicial forum." The mootness exception
for disputes capable of repetition yet evading review will not
revive a dispute which became moot before the action commenced."
The case is therefore different from others, such as Belgau v.
Inslee, in which the Plaintiffs had standing when the case began.
Additionally, as the State defendants point out, the Eleventh
Amendment bars any and all claims against the State and its
officials, with only a narrow exception under Ex Parte Young, 209
U.S. 123 (1908), providing for claims against State officials where
plaintiffs seek prospective injunctive relief to remedy an imminent
or ongoing violation of federal law. Here, as noted plaintiffs are
no longer having union dues or political fees deducted from their
wages. Judge Meuller holds that the claims against the State
defendants thus also are subject to dismissal in their entirety as
barred by the Eleventh Amendment, with no applicable exception
available under Ex Parte Young given that the Plaintiffs do not
have standing to seek prospective relief.
In sum, Judge Meuller holds that the Plaintiffs do not have
standing to seek prospective relief against the State Defendants or
SEIU. The Judge thus turns to SEIU's motion to dismiss the
Plaintiffs' retrospective claims under Rule 12(b)(6).
II. Motion to Dismiss
To state a Section 1983 claim, the Plaintiffs must show SEIU
deprived them of a right secured by the Constitution "under color
of state law." First, the Court asks "whether the claimed
deprivation has resulted from the exercise of a right or privilege
having its source in state authority," and second, whether the
Defendant "may be appropriately characterized as a 'state actor.'"
State action exists only when the answers to both questions is
"yes."
First, the Judge holds, that the Plaintiffs' claimed constitutional
harm stems from the State Controller's reliance on the union for
certification of an employees' authorization for dues deductions.
Second, although there is a connection between the Plaintiffs'
alleged constitutional violation and state action, the union's
allegedly false representations to the State Controller do not show
action in concert with the state. For these reasons, SEIU is not a
state actor under Section 1983, and all three of the Plaintiffs'
Section 1983 claims against it must be dismissed.
In addition, no amendment can overcome the Plaintiffs' lack of
standing with respect to the State defendants or SEIU such that
they can seek prospective relief or to pursue their Section 1983
claims against SEIU. Judge Mueller therefore dismisses all the
federal claims without leave to amend.
On this record, Judge Mueller declines to exercise discretion under
28 U.S.C. Section 1367(c)(2) to exercise supplemental jurisdiction
over the Plaintiffs' claims for unjust enrichment and conversion.
She dismisses these claims without prejudice so the Plaintiffs may
refile them in state court if they choose.
Conclusion
The motions to dismiss are granted. The Order resolves ECF Nos. 17
&18. The case is closed.
A full-text copy of the Court's Aug. 27, 2021 Order is available at
https://tinyurl.com/e2r4dfn7 from Leagle.com.
CANTONI ORANGE: Alonzo Files ADA Suit in C.D. California
--------------------------------------------------------
A class action lawsuit has been filed against Cantoni Orange
County, Inc., et al. The case is styled as Thuy Thanh Alonzo,
individually and on behalf of all others similarly situated v.
Cantoni Orange County, Inc., a California corporation; Does 1 to 10
inclusive; Case No. 2:21-cv-06953-ODW-PD (C.D. Cal., Aug. 27,
2021).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Cantoni -- https://www.cantoni.com/ -- is a leader in modern
furniture and interior design with six locations across the
U.S.[BN]
The Plaintiff is represented by:
Thiago Merlini Coelho, Esq.
Binyamin I. Manoucheri, Esq.
Jasmine Behroozan, Esq.
WILSHIRE LAW FIRM
3055 Wilshire Boulevard 12th Floor
Los Angeles, CA 90010
Phone: (213) 381-9988
Fax: (213) 381-9989
Email: thiago@wilshirelawfirm.com
jasmine@wilshirelawfirm.com
binyamin@wilshirelawfirm.com
CARTER INSURANCE: Bobbs Suit Alleges Unpaid Wages for Adjusters
---------------------------------------------------------------
PATRICIA BOBBS, individually and on behalf of all others similarly
situated, Plaintiff v. CARTER INSURANCE CLAIMS SERVICES, INC.,
Defendant, Case No. 2:21-cv-07135 (C.D. Cal., September 3, 2021) is
a class action against the Defendant for violations of the Fair
Labor Standards Act, the California Labor Code, and the California
Unfair Competition Law including failure to pay overtime wages,
failure to provide accurate itemized wage statements, failure to
pay all wages owed during employment and at the time of separation,
and failure to reimburse business expenses.
Ms. Bobbs was employed by the Defendant as an adjuster employee in
Santa Barbara County, California from December 2017 through
approximately February 2019.
Carter Insurance Claims Services, Inc. is an insurance company
based in Tustin, California. [BN]
The Plaintiff is represented by:
Ricardo J. Prieto, Esq.
SHELLIST | LAZARZ | SLOBIN LLP
11 Greenway Plaza, Suite 1515
Houston, TX 77046
Telephone: (713) 621-2277
Facsimile: (713) 621-0993
E-mail: rprieto@eeoc.net
- and –
Melinda Arbuckle, Esq.
SHELLIST | LAZARZ | SLOBIN LLP
5670 Wilshire Boulevard, Suite 1800
Los Angeles, CA 90036
Telephone: (713) 621-2277
Facsimile: (713) 621-0993
E-mail: marbuckle@eeoc.net
COMPREHENSIVE HEALTHCARE: W.D. Pa. Narrows Claims in Blair Suit
---------------------------------------------------------------
In the cases, RIK BLAIR, on behalf of himself and similarly
situated employees, Plaintiffs v. COMPREHENSIVE HEALTHCARE
MANAGEMENT SERVICES, LLC, Defendant; and VALERIE PITKIVITCH, et
al., on behalf of herself and similarly situated employees,
Plaintiffs v. COMPREHENSIVE HEALTHCARE MANAGEMENT SERVICES, LLC, et
al., Defendants, Civil Action Nos. 2:18-cv-254, 2:18-cv-1667 (W.D.
Pa.), Judge William S. Stickman, IV, of the U.S. District Court for
the Western District of Pennsylvania grants in part and denies in
part the Defendants' Motion to Dismiss.
The Defendants, Samuel Halper ("Halper") and Ephram Lahasky
("Lahasky"), filed the Motion to dismiss the claims against them on
the ground that the statutory claims are time-barred and the breach
of contract claims cannot be maintained against them as a matter of
law.
Eleven Plaintiffs bring the action against various assisted care
facilities, businesses, and individuals, alleging individual
statutory claims under the Fair Labor Standards Act of 1938
("FLSA"), 29 U.S.C. Sections 201-219, and the Pennsylvania Minimum
Wage Act ("PMWA"), 43 P.S. Sections 333.101-333.115, class
statutory claims under the Pennsylvania Wage Payment and Collection
Law ("WPCL"), 43 P.S. Sections 260.1-260.45, and class common law
breach of contract claims.
The history of the case is lengthy and extensive -- indeed,
spanning more than three years -- due in part to consolidation with
a related matter, settlement negotiations, and the intervention of
the Secretary of Labor for the United States Department of Labor.
These conditions have significantly curtailed the procedural
progress of this case, as well as perpetuated the filing of
numerous motions and amended/consolidated complaints.
The timeliness of the claims brought by only two of the opt-in
Plaintiffs is currently disputed by the parties. Those individuals
-- Erik Blair and Alana Richey -- were employed by their respective
assisted care facilities from September 2017 until January 2018.
Defendants Halper and Lahasky were first named as defendants in the
First Amended Complaint filed on Feb. 28, 2019. At that time, class
and collective as well as individual claims for overtime and
non-overtime compensation were brought under the FLSA, PMWA, WPCL,
and common law breach of contract -- the same causes of action
currently at issue. On July 29, 2019, the parties sought the
dismissal of Halper and Lahasky, and filed a Joint Notice of
Dismissal seeking the dismissal without prejudice of the claims
against both individuals under Federal Rule of Civil Procedure
41(a)(1)(A)(ii). That Joint Notice of Dismissal, however, was
stricken by the Hon. Mark R. Hornak, Chief District Judge for the
U.S. District Court for the Western District of Pennsylvania, on
the ground that neither Halper nor Lahasky were parties to the
action at that time.
On March 2, 2020, the case was consolidated with Plaintiff Valerie
Pitkivtich's related action in Pitkivitch v. Comprehensive
Healthcare Management Services, LLC, et al., No. 18-1667 (W.D.
Pa.), because the parties determined that both actions concerned
the same underlying compensation practices and policies of the
various assisted care facilities. That same day, a Consolidated
Amended Complaint was filed, which omitted Halper and Lahasky
because the parties "appeared at the time to be on a course toward
settlement." The settlement negotiations and proposed agreement,
however, were paused (and ultimately extinguished) over
approximately nine months because of the Secretary's intervention
to address possible preclusive effects that the proposed settlement
may have had on his pending FLSA action in Walsh v. Comprehensive
Healthcare Management Services, LLC, et al., No. 2:18-cv-01608-WSS
(W.D. Pa.).
Those issues were later addressed and resolved after the claims for
overtime compensation were limited to a certain group of
individuals, with the remaining claims seeking recovery only for
non-overtime compensation. On March 31, 2021, the Plaintiffs filed
a Third Consolidated Amended Complaint, re-asserting the same
claims against both Halper and Lahasky.
Analysis
A. Blair's and Richey's FLSA, PMWA, and WPCL Claims
The Defendants first argue that both Blair's and Richey's claims
brought under the FLSA, PMWA, and WPCL against Halper and Lahasky
should be dismissed because their claims are barred by the statutes
of limitations found in each of those respective statutes, and that
their claims do not relate back to the previous filing under
Federal Rule of Civil Procedure 15(c)(1). The Plaintiffs counter
that Blair's and Richey's claims were initially brought well within
the statutes of limitations and because no final judgment under
Federal Rule of Civil Procedure 54 was entered with respect to
Halper and Lahasky, they remained parties to the action after the
first time the claims brought against them were dropped.
Judge Stickman holds that, because a partial adjudication of fewer
than all the claims or rights and liabilities of fewer than all the
parties does not end the action to as to any of the claims or
parties and is subject to further revision under Rule 54(b), a
party previously voluntarily dismissed without prejudice in the
same fashion remains a party to the action from the time the
previously dismissed claims were initially brought. Applying that
same reasoning to the case, the Judge finds that the operative date
for purposes of the statutes of limitations is Feb. 28, 2019, and
because the Joint Notice of Dismissal dismissing Halper and Lahasky
without prejudice did not adjudicate all the claims of all the
parties, there was no final judgment of dismissal under Rule 54(b).
Accordingly, because Halper and Lahasky remained in the action from
Feb. 28, 2019, the three-year statutes of limitations under the
FLSA, PMWA, and WPCL never lapsed. The Judge therefore denies the
Defendants' request to dismiss Blair's and Richey's FLSA, PMWA, and
WPCL claims.
B. Breach of Contract Claims
The Defendants argue that the Court should dismiss the Plaintiffs'
breach of contract claims against Halper and Lahasky because they
cannot legally maintain an action against them where they entered
into contracts with the facilities. The Plaintiffs did not respond
to this argument. Outside of Halper and Lahasky, the various
facilities and businesses named in the action are limited liability
corporations.
Because the Third Consolidated Amended Complaint does not contain
any independent allegations of separate compensation agreements
entered into between the Plaintiffs, Halper, and Lahasky, and the
Plaintiffs do not otherwise address Pennsylvania's general law
against holding officers liable for the corporations' contracts,
Judge Stickman grants the Defendants' request to dismiss the breach
of contract claims.
Conclusion
For the reasons he set forth, Judge Stickman grants in part and
denies in part the Defendants' Motion to Dismiss. The Plaintiffs'
breach of contract claims against Halper and Lahasky at Count IV of
the Third Consolidated Amended Complaint is dismissed with
prejudice. An Order of Court will follow.
A full-text copy of the Court's Aug. 27, 2021 Opinion is available
at https://tinyurl.com/vvkxyytp from Leagle.com.
COSTCO WHOLESALE: Faces Akers Suit Over Mislabeled Flavored Water
-----------------------------------------------------------------
TIMOTHY AKERS, individually and on behalf of all others similarly
situated, Plaintiff v. COSTCO WHOLESALE CORPORATION, Defendant,
Case No. 3:21-cv-01098 (S.D. Ill., September 3, 2021) is a class
action against the Defendant for negligent misrepresentation,
fraud, unjust enrichment, breaches of express warranty, implied
warranty of merchantability and Magnuson Moss Warranty Act, and
violations of Illinois Consumer Fraud and Deceptive Business
Practices Act and State Consumer Fraud Acts.
According to the complaint, the Defendant is engaged in false,
deceptive, and misleading advertising, labeling, and marketing of
its carbonated (sparkling) flavored water under the Kirkland
Signature brand. The Defendant labels the product to have a black
raspberry taste. However, the representation is misleading because
the product contains artificial DL-Malic Acid, which enhances and
stimulates the black raspberry taste. Consumers are misled to
expect the taste comes exclusively and/or predominantly from black
raspberries and/or natural sources other than black raspberries.
Had the Plaintiff and similarly situated consumers known the truth,
they would not have bought the product or would have paid less for
it, the suit says.
Costco Wholesale Corporation is an operator of a chain of
membership-only big-box retail stores, with a principal place of
business in Issaquah, Washington, King County. [BN]
The Plaintiff is represented by:
Spencer Sheehan, Esq.
SHEEHAN & ASSOCIATES, PC
60 Cuttermill Rd., Ste. 409
Great Neck, NY 11021
Telephone: (516) 268-7080
E-mail: spencer@spencersheehan.com
DIETITIANS AT HOME: Court Certifies Class of RDs in Perizes Suit
----------------------------------------------------------------
In the case, ANGELA PERIZES, individually and on behalf of all
others similarly situated, Plaintiff v. DIETITIANS AT HOME, INC.,
ARISTOTLE KORNAROS, individually, and SUZANNE HALL, individually,
Defendants, Case No. 19-cv-00740 (N.D. Ill.), Judge Franklin U.
Valderrama of the U.S. District Court for the Northern District of
Illinois, Eastern Division, grants in part and denies in part the
Plaintiff's motion for conditional certification of a Fair Labor
Standards Act collective action and for authorization to issue
step-one notice.
The Plaintiff proposes the following class definition: All
individuals who were employed, or are currently employed, by the
Defendants, its subsidiaries or affiliated companies, as Registered
Dietitians (RDs) or any other similarly titled position at any time
during the relevant statute of limitations period.
Background
Plaintiff Perizes, on behalf of herself and all others similarly
situated, filed the proposed class action lawsuit against her
former employers, Dietitians at Home, Aristotle Kornaros,
Dietitians at Home's President and Owner (Kornaros), and Suzanne
Hall, Dietitians at Home's CFO, for improperly designating
Plaintiff and others similarly situated as "exempt" from overtime
pay and for failing to pay them overtime compensation in alleged
violation of the FLSA, 29 U.S.C. Sections 201, et seq.
Dietitians at Home, operating out of a single office in Chicago,
Illinois, provides at-home Medical Nutrition Therapy, Diabetic
Shoes services, and other related services to Illinois and Indiana
clients. Kornaros serves as Dietitians at Home's President and
Owner, and Hall serves as the CFO, who oversees scheduling and
billing.
The Plaintiff and others allegedly similarly situated were and are
Registered Dietitians employed by Dietitians at Home to provide
at-home Medical Nutrition Therapy to patient-clients. The Plaintiff
was employed by Dietitians at Home from June 2017 through September
2018. She alleges that a Registered Dietitian's duties included
traveling from one patient's home to the next to perform patient
visits and provide care; instructing patients and caregivers on how
to continue care; completing documentation of patient visits, known
as "charting"; coordinating patient care with physicians and other
providers; and performing other duties in connection with each
patient visit that cannot be completed while in the patients'
homes.
The Plaintiff alleges that the Defendants routinely required her
and other Registered Dietitians to perform these duties for more
than 40 hours per week but strictly instructed them to record no
more than eight hours of work per day, regardless of the time
actually spent working in a given day. Indeed, she alleges that she
and other Registered Dietitians were not compensated for conducting
work prior to the beginning of their shifts; traveling to their
first appointments; time spent maintaining Dietitians at Home
vehicles; time spent completing required patient documentation or
on the phone with patients and/or medical professionals either
before or after their official shift; time spent on unpaid meal
breaks; or any other time working while not seeing patients.
In light of this, the Plaintiff claims that the Defendants
willfully violated the FLSA by denying them pay at one-and-a-half
times their regular rate for time worked beyond 40 hours per week.
Individuals qualify as professionals exempt from overtime
compensation under the FLSA only if: (i) they are compensated on a
salary basis; (ii) their primary duty is management; (iii) they
customarily and regularly direct the work of two or more other
employees; and (iv) they have the authority to hire or fire other
employees or their suggestions and recommendations as to the
hiring, firing, promotion, or change in status of other employees
are given particular weight.
The Plaintiff contends that Registered Dietitians were paid an
hourly rate based on time actually spent with patients each day by
"units" billed to Medicare and positions subject to an hourly rate
compensation practice (rather than a salary compensation practice)
are not exempt from FLSA overtime requirements. In misclassifying
the Plaintiff and the other Registered Dietitians similarly
situated as exempt from overtime compensation, the Plaintiff
alleges that the Defendants violated the FLSA.
The Plaintiff requests that the Court grants conditional
certification to a class of Registered Dietitians; orders the
Defendants to produce the names and contact information of
potential class members; and approves court-supervised notice to
those potential class members.
Analysis
Judge Valderrama first determines whether the proposed collective
action should be conditionally certified by addressing the core
question of step one -- has the Plaintiff met her burden in making
a modest factual showing sufficient to demonstrate that she and
other similarly situated employees were victims of a common
practice that violated the FLSA? He then addresses (and modifies,
if necessary) the Plaintiff's proposed notice forms and methods of
notice.
I. Conditional Certification
The Plaintiff contends that she has "made more than the necessary
modest showing" that she and other similarly situated Registered
Dietitians employed by the Defendants were victims of their FLSA
violations. The Plaintiff maintains that she has proffered evidence
demonstrating that she and prospective members of the proposed
class are similarly situated because they (i) are subject to the
same hybrid "per unit" and hourly compensation scheme and other
terms and conditions of employment; (ii) are uniformly and
improperly classified as exempt employees; and (iii) perform
substantially similar job duties. The Plaintiff points to (1) her
own sworn deposition testimony and (2) Hall's sworn deposition
testimony as supporting evidence.
In response, the Defendants argue that the Plaintiff has not met
her burden for conditional certification, because the Plaintiff is
the only Registered Dietitian who provided evidence in support of
the motion. The Defendants maintain that without testimony or
declarations from more Registered Dietitians, the Plaintiff's
evidence in support of her motion is insufficient. They assert that
the Plaintiff's cited cases, Lukas v. Advoc. Health Care Network &
Subsidiaries, 2014 WL 4783028, at *1 (N.D. Ill. Sept. 24, 2014) and
Dennis v. Greatland Home Health Servs., Inc., 438 F.Supp.3d 898
(N.D. Ill. 2020, are distinguishable, insisting that those cases
involved motions for conditional certification supported by
multiple declarations of potential class members and evidence as to
the hours worked by other potential class members.
Judge Valderrama disagrees and finds both cases instructive. All in
all, he is unpersuaded by the Defendants' core argument that sworn
testimony from only one potential class member is insufficient,
because sworn testimony from one potential class member was
sufficient in Dennis; the Defendants conveniently ignore the
additional testimony from their itness, Hall; and the Defendants
have not cited an analogous case in which testimony from one
potential class member and a defendant's corporate representative,
on their own, were not enough to meet the substantially similar
threshold. The Judge finds instead that the Plaintiff has provided
sufficient evidence, at this early first stage, that she and
potential members of her proposed class were subjected to the same
unlawful policy.
The Plaintiff's deposition testimony and Hall's deposition
testimony show, at this stage, that the Plaintiff and other
Registered Dietitians, who were all expected to perform the same
primary duties and who were all compensated on an hourly/by unit
basis, were victim of a common practice that violated the FLSA,
namely, that Dietitians at Home required them to perform the work
of non-exempt employees and work more than 40 hours a week without
overtime pay. Based on the Plaintiff's evidence, the Judge finds
that the Plaintiff has met her burden in showing the proposed class
is similarly situated, and he accordingly approves conditional
certification of the Plaintiff's proposed class.
II. Notice
As he has determined that conditional certification is appropriate,
Judge Valderrama now turns to the Plaintiff's proposed notice form
and proposals for issuing notice to the potential class members.
The Plaintiff asks that the Court approve the language of the
proposed notice form as submitted. Notice is adequate if it
provides the potential class members "accurate and timely notice
concerning the pendency of the collective action, so that they can
make informed decisions about whether to participate."
The Defendants do not take issue with the content of the proposed
Notice Form. "Absent reasonable objections by either the defendant
or the Court," plaintiffs should be allowed to use the language of
their choice in drafting notice forms. As such, Judge Valderrama
approves the language of the Notice Form, as is, for issuance to
potential class members. The Defendants also do not take issue with
the proposed 60-day notice period. As such, the Judge approves the
unopposed 60-day notice period.
For methods of issuance, the Plaintiff requests that (i) the Notice
Form and Opt-In Consent Form be sent via first-class U.S. Mail,
email, and text message to the members of the proposed collective
class defined above; (ii) the Court enters an order requiring the
Defendants to post a copy of the Notice at a location in their
office; and (iii) potential opt-in plaintiffs are to be sent a
reminder card 20 days before the end of the opt-in period.
The Defendants raise three objections to the Plaintiff's proposed
methods of issuance. First, the Defendants argue that notice by
text message is "unnecessary and overly intrusive," and the
Plaintiff has failed to show that she and other prospective class
members are transitory so as to warrant text message notice.
Second, they contend that the Plaintiff should not be permitted to
post the notice at Dietitians at Home's office, because she has
failed to show that notice via first-class mail is not possible
such that posting at the office must be implemented. Third, the
Defendants object to sending a reminder card 20 days before the end
of the opt-in period primarily because the Plaintiff failed to
provide a draft of the proposed reminder card in her motion, and a
reminder card is unnecessary and could be interpreted as "judicial
endorsement of the Plaintiff's claims."
Judge Valderrama takes each objection in turn. First, he is not
convinced by the Defendants' objections that notice by text message
is unnecessary and overly intrusive and that the Plaintiff has
failed to show that the potential class members are sufficiently
"transient." Second, the Judge finds that posting the Notice Form
at the Dietitians at Home's office is not unnecessary or overly
intrusive and approves the same. Third, in failing to respond to
the Defendants' argument, the Plaintiff has waived any potential
argument that a proposed reminder notice need not be attached to a
motion for notice issuance.
As the Plaintiff has waived any potential argument that a proposed
reminder notice need not be attached to a motion for notice
issuance, and the Judge is not persuaded that a reminder notice is
necessary given the three other forms of notice already approved,
Judge Valderrama denies the Plaintiff's request to send reminder
notices 20 days before the close of the opt-in period.
Conclusion
For the foregoing reasons, Judge Valderrama grants certification of
a nationwide collective and Court-authorized notice as follows:
1. The Court conditionally certifies a collective action by
the Plaintiff and similarly situated individuals pursuant to 29
U.S.C. Section 216(b), defined as: All individuals who were
employed, or are currently employed, by Defendants, its
subsidiaries or affiliated companies, as Registered Dietitians
(RDs) or any other similarly titled position at any time during the
relevant statute of limitations period.
2. The Defendants will produce to the Plaintiff, within 10
days of the Opinion, a computer-readable data file containing the
names, addresses, email addresses, telephone numbers, dates of
employment, social security numbers, and dates of birth for
potential members of the approved collective action.
3. The Plaintiff is authorized to send the approved notice by
first-class U.S. Mail, email, and text message to all potential
members of the approved collective action to inform them of their
right to opt into the lawsuit within 60 days.
4. And the Defendants will post the approved notice at a
location in Dietitians at Home's office where members of the
approved collective class are likely to view it for the duration of
the 60-day notice period.
A full-text copy of the Court's Aug. 27, 2021 Memorandum Opinion &
Order is available at https://tinyurl.com/wctb8s4h from
Leagle.com.
DOLLAR BANK: Columbian Spot Sues Over Illegal Overdraft Fee Charges
-------------------------------------------------------------------
THE COLUMBIAN SPOT, LLC individually and on behalf of all others
similarly situated, Plaintiff v. DOLLAR BANK, a Federal Savings
Bank, Defendant, Case No. 2:21-cv-01171-DSC (W.D. Pa., Sep. 1,
2021) seeks monetary damages, restitution and declaratory relief
from Dollar Bank for the assessment and collection of "overdraft
fees" on accounts that were never actually overdrawn in breach of
contract, and for breach of the covenant of good faith and fair
dealing.
The Plaintiff alleges that the checking account contract documents
covering OD Fees promise that Dollar Bank will only charge these
fees on transactions that have insufficient funds to "cover" that
debit card transaction. The Defendant is not authorized by contract
to charge OD Fees on transactions that have not overdrawn an
account, but it has done so and continues to do so, the Plaintiff
asserts.
The Plaintiff is a Pennsylvania limited liability company with a
checking account with Dollar Bank during the class period.
Dollar Bank is a Federal Savings Bank and holds more than $10
billion in assets. Dollar Bank is headquartered in Pittsburgh,
Pennsylvania and has branches in Ohio, Pennsylvania, and
Virginia.[BN]
The Plaintiff is represented by:
D. Aaron Rihn, Esq.
ROBERT PEIRCE & ASSOCIATES, P.C.
707 Grant Street Suite 125
Pittsburgh, PA 15219
Telephone: (412) 281-7229
Facsimile: (412) 281-4229
E-mail: arihn@peircelaw.com
- and -
Taras P. Kick, Esq.
John E. Stobart, Esq.
THE KICK LAW FIRM APC
815 Moraga Drive
Los Angeles, CA 90049
E-mail: taras@kicklawfirm.com
- and -
Jeff Ostrow, Esq.
Jonathan M. Streisfeld, Esq.
KOPELOWITZ OSTROW FERGUSON WEISELBERG GILBERT
One West Las Olas Blvd., Suite 500
Fort Lauderdale, FL 33301
Telephone: (954) 525-4100
E-mail: ostrow@kolawyers.com
streisfeld@kolawyers.com
EC PETE'S: Pinola Files Suit in Cal. Super. Ct.
-----------------------------------------------
A class action lawsuit has been filed against EC Pete's, LLC. The
case is styled as Courtney Pinola, and on behalf of all others
similarly situated v. EC Pete's, LLC, Ethan Conrad, Does 1-20, Case
No. 34-2021-00307060-CU-OE-GDS (Cal. Super. Ct., Sacramento Cty.,
Aug. 27, 2021).
The case type is stated as "Other Employment - Civil Unlimited."
EC Pete's LLC is a full-service restaurant Sacramento,
California.[BN]
The Plaintiff is represented by:
Timothy B. Del Castillo, Esq.
CASTLE LAW: CA EMPLOYMENT COUNSEL, PC
2999 Douglas Blvd., Ste. 180
Roseville, CA 95661-4219
Phone: 916-245-0122
Email: tdc@castleemploymentlaw.com
EFFY & CO: Calcano Files ADA Suit in S.D. New York
--------------------------------------------------
A class action lawsuit has been filed against Effy & Co., Inc. The
case is styled as Evelina Calcano, on behalf of herself and all
other persons similarly situated v. Effy & Co., Inc., Case No.
1:21-cv-07514 (S.D.N.Y., Sept. 8, 2021).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Effy & Co., Inc. -- https://www.effyjewelry.com/ -- is located in
New York City and is part of the Jewelry, Luggage, and Leather
Goods Stores Industry.[BN]
The Plaintiff is represented by:
Michael A. LaBollita, Esq.
GOTTLIEB & ASSOCIATES
150 E. 18 St., Suite PHR
New York, NY 10003
Phone: (212) 228-9795
Email: michael@gottlieb.legal
ELI LILLY: Grimes Files Discrimination Suit in S.D. Ind.
--------------------------------------------------------
Jerad Grimes and Georgia Emily Edmondson, on behalf of themselves
and all others similarly situated, individually and on behalf of
all those similarly situated, Plaintiff, v. Eli Lilly and Company
and Lilly USA, LLC, Defendants, Case No. 21-cv-02367, (S.D. Ind.,
September 1, 2021), seeks damages including back pay, front pay,
liquidated damages, punitive damages, lost benefits, compensatory
damages, emotional distress, pain and suffering, injunctive relief,
reasonable attorneys’ fees and costs and any other relief for
violation of the Age Discrimination in Employment Act of 1967, the
Florida Civil Rights Act and the Georgia Age Discrimination Act.
Eli Lilly is an Indiana-based global pharmaceutical corporation
based in Indianapolis.
Plaintiffs applied for positions across the country in different
cities and states to work for Eli Lilly as Sales Representatives in
its Diabetes Business Unit and Primary Care Business Unit. Their
applications for employment were allegedly rejected and they were
never hired despite being as qualified and/or more qualified than
younger applicants who were hired.
Grimes and Edmondson are Pharmaceutical Sales Representatives who
applied for available Sales Representative positions in Eli Lilly's
Diabetes and Primary Care Business Units. Their employment
applications were all rejected by Eli Lilly with either no
interview or after a single interview. [BN]
Plaintiff is represented by:
J. Corey Asay, Esq.
MORGAN & MORGAN, P.A.
333 W. Vine Street, Suite 1200
Lexington, KY 40507
Phone: (859) 286-8368
Fax: (859) 286-8384
Email: casay@forthepeople.com
- and -
Gregory R. Schmitz, Esq.
C. Ryan Morgan, Esq.
MORGAN & MORGAN, P.A.
20 North Orange Avenue, 15th Floor
Orlando, FL 32801
Telephone: (407) 204-2170
Facsimile: (407) 245-3401
E-mail: gschmitz@forthepeople.com
rmorgan@forthepeople.com
csilva@forthepeople.com
aperez@forthepeople.com
mbarreiro@forthepeole.com
- and -
Marc R. Edelman, Esq.
MORGAN & MORGAN, P.A.
201 N. Franklin Street, Suite 700
Tampa, FL 33602
Telephone: (813) 223-5505
Facsimile: (813) 257-0572
E-mail: medelman@forthepeople.com
- and -
Angeli Murthy, Esq.
MORGAN & MORGAN, P.A.
8151 Peters Road, Ste. 4000
Plantation, FL 33324
Telephone: (954) 318-0268
Facsimile: (954) 327-3016
E-mail: amurthy@forthepeople.com
ESCOBAR CONSTRUCTION: Court Resolves Discovery Issues in Perez Suit
-------------------------------------------------------------------
In the case, MARCO ANTONIO PEREZ PEREZ, et al., Plaintiffs v.
ESCOBAR CONSTRUCTION, INC., et al., Defendants, Case No. 20 Civ.
8010 (LTS) (GWG) (S.D.N.Y.), Magistrate Judge Gabriel W. Gorenstein
of the U.S. District Court for the Southern District of New York
issued an Order addressing the issues raised in the parties'
letters appearing as Docket Nos. 100 and 101.
A. Alleged Incompleteness of Discovery Responses
The Court's Order of May 20, 2021, required the Defendants to
produce by June 10, 2021, the "names, last known mailing address,
last known email address, last known telephone numbers, and known
dates of employment of qualified opt-in plaintiffs." While the
Plaintiffs assert the production is incomplete, the Defendants
claim to have produced all records responsive to this Order.
Judge Gorenstein holds that the Defendants cannot produce what they
do not have. Certainly, the Plaintiffs are entitled to a sworn
statement or testimony from an individual with personal knowledge
as to whether a complete production has been made. If such an
affidavit has not been provided already, it will be provided by
Sept. 1, 2021. The Judge notes that without proof that the
Defendants are withholding records, there is no further order the
Court can issue on the matter.
B. Text Message Dissemination/Worksite Posting
The Plaintiffs also request text message dissemination to the
potential class members who have not responded to the mailings sent
to similarly-situated employees. The Plaintiffs' request is granted
as to any members of the collective who have not responded to the
prior mailings (subject to the caveat in the next paragraph) as it
is an appropriate method to ensure receipt. For each such
individual, the Plaintiffs may send one text message to determine
whether the individual received the mailing. They will wait until
Aug. 28, 2021 to send any such message. The Defendants raise the
fact that some employees may have claims that are time-barred (a
matter not previously raised).
Judge Gorenstein agrees with the Defendants that it would be
inappropriate to send a text message to such individuals. It was
one thing to send a notice to such individuals based on the
Defendants' failure to object to their inclusion in the group to be
notified. But it is quite another to persist by sending a text
message. Because there is no evidence that such individuals could
take advantage of equitable tolling, the Judge finds it
inappropriate to falsely raise their hopes. Accordingly, the
Defendants were given leave to provide proof to the Plaintiffs on
Aug. 27, 2021, of the fact that any non-responder in fact did not
work for the Defendants after Aug. 27, 2018. If they provide such
proof, the Plaintiffs should not send that individual a text
message.
The Plaintiffs' request for worksite posting is denied as
unnecessarily intrusive on the employer-employee relationship.
C. Class Action Discovery
Regarding the Plaintiffs' request for "class discovery," Judge
Gorenstein cannot discern what relief the Plaintiffs are seeking.
The particular discovery requests at issue have not been presented
to the Court. Thus, the Judge cannot grant any relief. For what it
is worth, he notes that the Plaintiffs are entitled to discovery as
to the merits of their own claims and as to Rule 23's requirements
for class certification, such as numerosity, commonality and
typicality.
A full-text copy of the Court's Aug. 25, 2021 Order is available at
https://tinyurl.com/524t5u7x from Leagle.com.
FACEBOOK INC: N.D. California Refuses to Remand Rosenman Class Suit
-------------------------------------------------------------------
In the case, SHARI ROSENMAN, Plaintiff v. FACEBOOK INC., Defendant,
Case No. 21-CV-02108-LHK (N.D. Cal.), Judge Lucy H. Koh of the U.S.
District Court for the Northern District of California, San Jose
Division, denies the Plaintiff's motion to remand the instant case
to the California Superior Court for the County of San Mateo.
Background
On Feb. 22, 2021, Plaintiff Rosenman, individually and on behalf of
all others similarly situated, sued the Defendant in the California
Superior Court for the County of San Mateo for violations of
California's Unfair Competition Law, Cal. Bus. & Prof. Code
Sections 17200, et seq., and unjust enrichment. On March 25, 2021,
Facebook removed the instant case to federal court based on federal
question jurisdiction.
The Plaintiff alleges that Facebook "is by far the biggest social
network in the United States." According to the Plaintiff, 99% of
adults in the U.S. that use social media use Facebook. She alleges
that Facebook itself boasted in 2011 that it is now 95% of all
social media.
The Plaintiff alleges that "Facebook's popularity gives it wide
latitude to set the terms for how its users' private information is
collected, used, and protected and the privacy protections afforded
to its users." She alleges that, as a result, "consumers
effectively face a singular choice: either to use Facebook and
submit to the quality and stipulations of Facebook's product or
forgo all use of the only social network used by most of their
friends, family, and acquaintances."
According to the Plaintiff, Facebook initially distinguished itself
from other social networks on the basis of its privacy practices.
Facebook allegedly "tried to backslide on its privacy commitments,
but it faced discipline from competitors that it still had not
cornered." However, once Facebook overtook its rivals, Facebook
allegedly "leveraged its popularity to successfully degrade privacy
to levels unsustainable in the earlier market when Facebook and its
competition were subject to consumer privacy demands."
The Plaintiff alleges that, "with nearly every privacy policy
update, Facebook steadily increased the richness of the user data
it allowed itself to collect and retain and expanded what it could
do with the data." She alleges that "users exchange their time,
attention, and personal data for access to Facebook's services."
She alleges that, rather than raising prices, Facebook harmed
consumers "by charging them the use of ever-increasing amounts of
their personal data to use its platform." According to her,
Facebook's conduct has caused consumers to suffer and to continue
to suffer substantial economic injury through the degradation of
their privacy."
On Dec. 14, 2020, the Plaintiff sued Facebook in the California
Superior Court for the County of San Mateo for violation of
California's Unfair Competition Law ("UCL"), Cal. Bus. & Prof. Code
Sections 17200, et seq., and unjust enrichment. Her class was
defined as "all persons or entities who maintained a Facebook
profile at any time within four years of the date of the filing of
this action."
On Jan. 13, 2021, Facebook removed the Plaintiff's case to this
Court. It asserted that the Court had jurisdiction based on the
Class Action Fairness Act and federal question jurisdiction.
On Feb. 9, 2021, the Court granted Facebook's motion to relate
Rosenman v. Facebook to Klein v. Facebook. See Klein v. Facebook,
Case No. 20-CV-8570-LHK. On Feb. 11, 2021, the Plaintiff
voluntarily dismissed her case without prejudice.
On Feb. 22, 2021, the Plaintiff filed the instant case against
Facebook in the California Superior Court for the County of San
Mateo for violations of the UCL and unjust enrichment. She seeks to
represent a class of "all California citizens who, while citizens
of the State of California, maintained a Facebook profile at any
time within four years of the date of the filing of this action."
On March 25, 2021, Facebook removed the instant case to federal
court based on federal question jurisdiction. On April 9, 2021, the
Court granted Facebook's motion to relate the instant case to Klein
v. Facebook. See Klein v. Facebook, Case No. 20-CV-8570-LHK.
On April 26, 2021, the Plaintiff filed the instant motion to
remand. On May 26, 2021, Facebook filed an opposition. On June 25,
2021, the Plaintiff filed a reply.
Discussion
In the instant case, the Plaintiff's complaint alleges two state
law claims: violations of California's Unfair Competition Law
("UCL") and unjust enrichment. Generally, a complaint that asserts
only state law claims does not arise under federal law.
Facebook contends that the instant case meets all four criteria set
forth in Grable & Sons Metal Prods., Inc. v. Darue Eng'g & Mfg.,
545 U.S. 308, 312 (2005). Specifically, it asserts that the
Plaintiff's claim under the unfair prong of the UCL "necessarily
turns on a disputed and substantial question of federal antitrust
law -- whether Facebook unlawfully obtained and maintained an
illegal monopoly." Facebook thus contends that this Court has
federal question jurisdiction over the Plaintiff's claim under the
unfair prong of the UCL and should exercise supplemental
jurisdiction over the Plaintiff's claim under the fraudulent prong
of the UCL and for unjust enrichment.
Under Grable, a federal court may exercise jurisdiction over a
state law claim only if (1) the action necessarily raises a federal
issue that is (2) disputed and (3) substantial, and if (4) the
court may entertain the case without disturbing the congressionally
approved balance of federal and state judicial responsibilities.
The party seeking to establish jurisdiction must justify a need for
"the experience, solicitude, and hope of uniformity that a federal
forum offers on federal issues."
A. Plaintiff's UCL unfair prong claim necessarily raises a federal
issue.
First, the Plaintiff's UCL unfair prong claim necessarily raises a
federal issue. As Facebook acknowledges, it is possible to state a
UCL unfair prong claim without raising a federal issue. The UCL
prohibits "any unlawful, unfair, or fraudulent business act or
practice." The statutory language referring to 'any unlawful,
unfair, or fraudulent' practice makes clear that a practice may be
deemed unfair even if not specifically proscribed by some other
law."
Considering these allegations, Judge Koh concludes that, like the
claim brought by the plaintiff in National Football Leagues Sunday
Ticket Antitrust Litigation, the UCL unfair prong claim that the
Plaintiff has pled relies on Facebook's alleged abuse of its
monopoly position. Facebook's alleged unilateral monopolistic
conduct is only actionable under Section 2 of the Sherman Act.
Moreover, the Plaintiff does not allege in her Complaint that
Facebook's conduct violated California-specific constitutional,
statutory, or regulatory provisions. Thus, the "Plaintiff's unfair
competition cause of action will require a Court to interpret and
apply federal antitrust statutes, case law, and policies in order
to determine whether Facebook's conduct constitutes unfair
competition under the UCL."
Accordingly, the Judge holds that the Plaintiff's UCL unfair prong
claim necessarily raises a federal issue. Therefore, the first
Grable criteria is satisfied.
B. The federal issue is disputed.
As the Plaintiff concedes, the federal issue in the instant case is
disputed. As she explained, Judge Koh finds that the Plaintiff
alleges that Facebook acquired popularity and then "leveraged its
popularity to successfully degrade privacy to levels unsustainable
in the earlier market when Facebook and its competition were
subject to consumer privacy demands." Facebook denies all of these
claims, including that Facebook created an unlawful monopoly and
abused its monopoly power to degrade its data practices and harm
consumers. Accordingly, the federal issue is disputed. Thus, the
second Grable criterion is satisfied.
C. The federal issue is substantial.
In addition, the federal issue in the instant case is substantial.
"The substantiality inquiry under Grable looks to the importance of
the issue to the federal system as a whole." The United States
Supreme Court and the Ninth Circuit have emphasized the importance
of the Sherman Act to the federal system. The United States Supreme
Court has emphasized "the importance of the Sherman Act's
procompetition policy" and has stated that "the federal interest in
enforcing the national policy in favor of competition is both
familiar and substantial." Similarly, the Ninth Circuit has held
that "[t]he federal interest embodied in the Sherman Act is
well-recognized and substantial."
Moreover, resolution of the antitrust questions presented in this
case could affect other cases being brought by consumers,
advertisers, and federal agencies in federal court against Facebook
under the Sherman Act. See, e.g., Klein v. Facebook, No.
20-CV-08570-LHK, ECF Nos. 86, 87 (consumer and advertiser class
actions, alleging that Facebook has offered worse data practices
because Facebook does not face competition); FTC v. Facebook, No.
20-CV-03590-JEB (case brought by FTC against Facebook for abusing
its monopoly position). The United States Supreme Court and the
Ninth Circuit have stated that a federal issue is substantial where
"a ruling on the issue is both dispositive of the case and would be
controlling in numerous other cases." City of Oakland v. BP PLC,
969 F.3d 895, 905 (9th Cir. 2020); see Empire Healthchoice Assur.
v. McVeigh, 547 U.S. 677, 700 (2006) (stating that an issue was
substantial where "its resolution was both dispositive of the case
and would be controlling in numerous other cases").
Thus, the Judge concludes that the federal issue presented in the
instant case is substantial. Hence, the third Grable criteria is
satisfied.
D. The Court may entertain the instant case without disturbing the
congressionally approved balance of federal and state judicial
responsibilities.
Finally, Judge Koh may entertain the instant case without
disturbing the congressionally approved balance of federal and
state judicial responsibilities. Under federal law, "federal
antitrust claims are within the exclusive jurisdiction of the
federal courts." Thus, Congress has determined that federal courts
should decide federal antitrust claims. Accordingly, the Judge may
entertain the instant case without disturbing the congressionally
approved balance of federal and state judicial responsibilities,
and the fourth Grable criterion is satisfied.
Conclusion
In sum, Judge Koh holds that the Plaintiff's UCL unfair prong claim
satisfies all four criteria set forth in Grable. Accordingly, the
Court has federal question jurisdiction over the Plaintiff's claim
under the unfair prong of the UCL. The Court thus exercises federal
question jurisdiction over the Plaintiff's UCL unfair prong claim.
Additionally, the Court exercises supplemental jurisdiction over
the Plaintiff's claims under the fraudulent prong of the UCL and
for unjust enrichment because these claims, which also concern
Facebook's alleged conduct in degrading its data practices, arise
from "the same case or controversy" as the Plaintiff's UCL unfair
prong claim. For these reasons, the Judge denies the Plaintiff's
motion to remand.
A full-text copy of the Court's Aug. 27, 2021 Order is available at
https://tinyurl.com/ncn3vjyp from Leagle.com.
GINKGO INTERNATIONAL: Calcano Files ADA Suit in S.D. New York
-------------------------------------------------------------
A class action lawsuit has been filed against Ginkgo International
Ltd. The case is styled as Evelina Calcano, on behalf of herself
and all other persons similarly situated v. Ginkgo International
Ltd., Case No. 1:21-cv-07515 (S.D.N.Y., Sept. 8, 2021).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Ginkgo International Ltd. -- https://ginkgoint.com/ -- offers
original, quality flatware designs at the best possible price.[BN]
The Plaintiff is represented by:
Michael A. LaBollita, Esq.
GOTTLIEB & ASSOCIATES
150 E. 18 St., Suite PHR
New York, NY 10003
Phone: (212) 228-9795
Email: michael@gottlieb.legal
GLAMOURTRESS.COM: Crosson Files ADA Suit in E.D. New York
---------------------------------------------------------
A class action lawsuit has been filed against Glamourtress.com Inc.
The case is styled as Aretha Crosson, individually and as the
representative of a class of similarly situated persons v.
Glamourtress.com Inc., Case No. 1:21-cv-05024 (E.D.N.Y., Sept. 8,
2021).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Glamourtress -- https://www.glamourtress.com/ -- offers stylish and
trendy hair styles, hair products, wigs, weaves, braids, half wigs,
full cap, hair, lace front, hair extension, etc.[BN]
The Plaintiff is represented by:
Dan Shaked, Esq.
SHAKED LAW GROUP, P.C.
14 Harwood Court, Suite 415
Scarsdale, NY 10583
Phone: (917) 373-9128
Email: shakedlawgroup@gmail.com
GLASSFAB TEMPERING: Estrada Files Suit in Cal. Super. Ct.
---------------------------------------------------------
A class action lawsuit has been filed against Glassfab Tempering
Service, Inc. The case is styled as Hector Estrada, individually
and on behalf of others similarly situated v. Glassfab Tempering
Service, Inc., Case No. STK-CV-UOE-2021-0008051 (Cal. Super. Ct.,
San Joaquin Cty., Aug. 27, 2021).
The case type is stated as "Unlimited Civil Other Employment."
Glassfab Tempering Services, Inc. -- http://www.glassfabusa.com/--
provides advanced architectural dual seal Insulating Glass units
for commercial architectural applications.[BN]
The Plaintiff is represented by:
Ashwin Ladva, Esq.
LADVA LAW FIRM
530 Jackson St., 2nd FL.
San Francisco, CA 94133
Phone: 415-296-8844
Fax: 415-296-8847
Email: aladva@ladvalaw.com
GRUNT STYLE: Martinez Files ADA Suit in E.D. New York
-----------------------------------------------------
A class action lawsuit has been filed against Grunt Style, LLC. The
case is styled as Pedro Martinez, individually and as the
representative of a class of similarly situated persons v. Grunt
Style, LLC, Case No. 1:21-cv-05023 (E.D.N.Y., Sept. 8, 2021).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Grunt Style -- https://www.gruntstyle.com/ -- is an apparel &
fashion company that provides military clothing and uniforms.[BN]
The Plaintiff is represented by:
Dan Shaked, Esq.
SHAKED LAW GROUP, P.C.
14 Harwood Court, Suite 415
Scarsdale, NY 10583
Phone: (917) 373-9128
Email: shakedlawgroup@gmail.com
HARRY N. ABRAMS: Calcano Files ADA Suit in S.D. New York
--------------------------------------------------------
A class action lawsuit has been filed against Harry N. Abrams,
Incorporated. The case is styled as Evelina Calcano, on behalf of
herself and all other persons similarly situated v. Harry N.
Abrams, Incorporated, Case No. 1:21-cv-07516 (S.D.N.Y., Sept. 8,
2021).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Abrams -- https://www.abramsbooks.com/ -- formerly Harry N. Abrams,
Inc., is an American publisher of art and illustrated books,
children's books, and stationery.[BN]
The Plaintiff is represented by:
Michael A. LaBollita, Esq.
GOTTLIEB & ASSOCIATES
150 E. 18 St., Suite PHR
New York, NY 10003
Phone: (212) 228-9795
Email: michael@gottlieb.legal
HELION TECHNOLOGIES: Summary Judgment Bid in Johnson Suit Denied
----------------------------------------------------------------
In the case, TYLER JOHNSON, et al., Individually and on behalf of
similarly situated employees v. HELION TECHNOLOGIES, INC., Civil
Action No. DKC 18-3276 (D. Md.), Judge Deborah K. Chasanow of the
U.S. District Court for the District of Maryland denied Helion's
motion for summary judgment, and granted William Toomey's
cross-motion for partial summary judgment.
Background
The case arises from the alleged failure of Defendant Helion
properly to pay its employees in various technical support roles
for overtime work. Helion provides information technology ("IT")
support for automobile dealerships across the United States,
providing for each client a reliable, efficient, and secure IT
network and all troubleshooting assistance necessary to diagnose
and resolve problems that arise within that network." Helion is a
Maryland company with its principal place of business in Timonium,
Maryland. The case was initiated by former plaintiffs Tyler Johnson
and James Phelan, in October 2018, as a potential collective and
class action. At present, the claims of four Plaintiffs remain,
along with the counterclaim by Helion against one of the
Plaintiffs.
Mr. Johnson, a resident of Baltimore County, Maryland, was employed
by Helion from May 16, 2013 until around August 2018. At the start
of his employment, Mr. Johnson was a "Desktop Support Technician,"
also known as a "Desktop Support Engineer." Mr. Dorsey's affidavit
explains that "Desktop Engineers" "remotely diagnose and resolve IT
problem, such as a printer problem or a problem with a single
personal computer ("PC"), that affect only a single client user or
a single peripheral device within the client's IT network, if that
particular problem is susceptible to remote resolution."
Around November 2015, Plaintiff Johnson was promoted to Outsource
Field Technician. In this role, his job was to oversee the
retention and deployment of Helion's independent contractors. These
contractors performed the same job as Field Engineers, who
themselves did what the Desktop Support Technicians and Systems
Administrators did, except on-site, instead of remotely. Problems
outside the scope of a Desktop Support Technician were "escalated"
to Systems Administrators, although the Plaintiff disputes that
such tasks were any more complex.
Plaintiff James Phelan worked as a Systems Administrator (although
he termed it a "Systems Support Technician/Engineer") and his job
description, even according to Helion, is virtually identical to
that of a Desktop Support Technician. Mr. Phelan was employed by
Helion from Nov. 28, 2011 to Aug. 30, 2018. He alleges that he
worked over forty hours during given weeks in the relevant period
and was not paid the proper amount.
It is not disputed that in February 2016, Helion reclassified the
"Desktop-level positions," including the Desktop Support
Technicians and Outsource Field Technicians, as non-exempt, and
people in those positions began to receive proper overtime pay. But
the Plaintiffs argue that these groups never received backpay for
the period in which they were miscategorized as exempt.
On Oct. 23, 2018, the two Plaintiffs filed a claim on behalf of
themselves and "other similarly situated Technicians," arguing that
the Defendant failed properly to pay them overtime wages- one and
one-half times their normal wages -- and seeking to recoup these
wages "and other available relief."
The complaint was brought as part of a proposed collective under
the Fair Labor Standards Act (FLSA), 29 U.S.C Section 216(b), and
as a class action pursuant to Fed.R.Civ.P. 23 under both the
Maryland Wage and Hour Law, Md. Code, Lab. & Empl. Sections 3-401
et seq. ("MWHL"), and the Maryland Wage Payment and Collection Law,
Md. Code, Lab & Empl. Sections 3-501 et seq. ("MWPCL"). Two
additional Plaintiffs later joined the suit as named parties:
Another Desktop Support Technician on Oct. 24, 2018, and a Field
Engineer on Nov. 8, 2018. The latter Plaintiff, Mr. Toomey, remains
an active litigant.
On Dec. 6, 2018, the Defendant filed lawsuits against Mr. Johnson
and Mr. Toomey in Maryland state court. Both subsequently removed
the cases to federal court. The Plaintiffs then sought leave to
amend their complaint to include an allegation of retaliation under
the FLSA (and leave to add the parties who had signed consent
forms) but withdrew this motion in the face of the Defendant's
opposition and filed a second amended complaint instead. The two
removed suits brought by Helion, however, were filed before
different judges, one of whom granted a motion to consolidate that
directed all future filings to made in the FLSA case.
The cases then were assigned to this member of the bench. Helion
opposed Mr. Johnson's removal, and the claim against him was
severed and remanded to state court, thereby vacating the order to
consolidate. The removed lawsuit brought by Helion against Mr.
Toomey, however, remained pending, even as Helion filed an amended
answer and counterclaim against him in this FLSA suit. The
counterclaim against Mr. Toomey alleges breach of contract for
personal frolics in his company vehicle and seeks damages for "wear
and tear" to that vehicle and for what Helion contends are
ill-begotten wages for those hours.
In December 2018, as the dispute over removal and consolidation was
just beginning, the four Plaintiffs filed a motion for conditional
certification as a collective and for courtauthorized notice under
the FLSA. They argued that all four positions: Desktop Support
Technicians, Systems Administrators, Outsource Field Technicians,
and Field Engineers were "similarly situated" in that all provided
"IT support to the Defendant's clients," and their responsibilities
"centered on manual labor and routine technical and service work.
Their tasks were completed remotely or on-site at a client's
location." In these roles, the "Plaintiffs and other Technicians
routinely worked over 40 hours each week."
Ultimately, conditional certification was granted. Two plaintiffs
settled their claims. Because the counterclaim against Mr. Toomey
is identical to Helion's removed state claim against him, the
latter was dismissed without prejudice. A "Joint Conditional
Certification Notification Plan," including a proposed notice, was
accepted on Oct. 7, 2019. Thirteen opt-in Plaintiffs subsequently
joined the collective action.
On July 24, 2020, the Plaintiffs successfully moved to dismiss
voluntarily eight of these opt-ins, which was granted by paperless
order. A joint status report subsequently made clear that Mr.
Phelan also wished to withdraw from the suit voluntarily, and the
Plaintiffs filed an amended complaint that removed him as a named
Plaintiff. That left Mr. Toomey (Field Engineer) as the only
remaining named Plaintiff, along with three opt-in Plaintiffs:
Joseph McCloud (Field Engineer), Milton Turnerhill (Field
Engineer), and Wayne Carroll (Systems Administrator).
On Jan. 15, 2021, Helion moved for summary judgment as to the
claims by Toomey, McCloud, Turnerhill, and Carroll. The Plaintiffs
filed an opposition as well as a cross-motion for summary judgment
on the Defendant's counterclaim against Mr. Toomey and on his own
retaliation claim. The Defendant replied.
Prompted by assertions made in the motion papers, Helion filed a
motion requesting additional discovery. After a telephone
conference, Helion was granted leave to file corrected exhibits,
but not to conduct additional discovery prior to the resolution of
the summary judgment motions.
Discussion
Summary judgment is appropriate only if "there is no genuine issue
as to any material fact and the movant is entitled to judgment as a
matter of law." A dispute about a material fact is genuine "if the
evidence is such that a reasonable jury could return a verdict for
the nonmoving party." Thus, "the judge must ask herself not whether
she thinks the evidence unmistakably favors one side or the other
but whether a fairminded jury could return a verdict for the
nonmoving party on the evidence presented." When the parties file
cross motions, each motion must be reviewed "separately on its own
merits to 'determine whether either of the parties deserves
judgment as a matter of law.'"
I. Motion for Summary Judgment
Helion moves for summary judgment because, "as a matter of law, (A)
the FLSA overtime claims of the remaining Plaintiffs -- McCloud,
Toomey, Turnerhill, and Carroll -- fail, (B) Plaintiff Toomey's
FLSA retaliation claim fails, and (C) no Plaintiff has a viable
claim under the MWPCL."
Judge Chasanow opines that Helion is entitled to summary judgment
on none of these grounds. He finds that (i) the Plaintiffs properly
argue, the "prior lawsuit" is at least some evidence that the
purported violation was done willfully; (ii) the Plaintiffs are
entitled to rely on their own estimates, and Defendant has not
provided sufficient evidence to negate the reasonableness of these
estimates; (iii) as to any commute time, whether overnight and to
"out-oftown" jobsites, or between or to more local ones, the
Defendant assuredly has not carried its burden of proving that the
Plaintiffs cannot recover for these alleged work hours as a matter
of law; (iv) beyond attempting categorically to bar the allegations
in this way, the Defendant provides no substantive reason why such
overtime hours, purportedly worked during Mr. Carroll's additional
"on-call" time, would not be compensable if his testimony is to be
believed.
The Judge further opines that (i) Helion, who bears the burden of
proving the CPE applies, has not produced "plain and unmistakable"
evidence that a Systems Administrator is exempt; (ii) the Defendant
has not carried its high burden of affirmatively showing good faith
compliance with the FLSA; (iii) the Defendant has failed to cite
authority to establish damages are a necessary element of this
claim, because, Plaintiffs assert, no such authority exists; and
(iv) having denied summary judgment on the FLSA claims, summary
judgment on the MWPCL claims asserted by Mr. Toomey will also be
denied, but granted as to any MWPCL claims by Plaintiffs McCloud,
Turnerhill, or Carroll.
II. Cross Motion for Summary Judgment
As part of their response to the Defendant's motion for summary
judgment, the Plaintiffs filed their own cross motion for summary
judgment. The cross motion argues two main points: (1) the
"Defendant's Breach of Contract Counterclaim Fails as a Matter of
Law"; and (2) "Helion's Actions Constitute Illegal Retaliation
Under the FLSA."
A. The Breach of Contract Claim against Mr. Toomey
On the first issue, Mr. Toomey argues that Helion cannot succeed on
its breach of contract claim, as it has produced no actual contract
in discovery and "no contract exists." Alternatively, the
Plaintiffs contend that Helion cannot argue that an implied
contract exists "because Maryland is an at-will employment state.
Therefore, the mere offer and acceptance of a job does not create
an implied contract."
Helion first counters by arguing that it does, in fact, have
evidence of Mr. Toomey's "frolics" and that this evidence shows
that he "caused Helion thousands of dollars in damages" in both the
"value of the time he spent and mileage." It also counters the lack
of an implied contract argument by asserting that "the acceptance
of a job does in fact create a contract, since acceptance of a job
constitutes employment."
Judge Chasanow opines that the failure to produce these documents
or the witnesses to establish their evidentiary foundation in
discovery is, alone, fatal to their consideration in summary
judgment. Regardless, the Defendant has failed to carry its burden
under Fed.R.Civ.P. 56 to show these materials are currently
admissible or to explain "the admissible form that is anticipated."
Having not produced evidence sufficient to establish a connection
between the raw GPS data and an actual violation of the purported
employment agreement between Helion and Mr. Toomey, Helion's breach
of contract claim is doomed to fail. The Plaintiffs' motion for
summary judgment on this issue will be granted.
B. Retaliation under the FLSA
The Plaintiffs argue that they have established all four elements
"of a prima facie case of retaliation under the FSLA": "(1)
engagement in protected activity; (2) the Defendant's awareness of
the Plaintiff's protected activity; (3) an employment action
disadvantaging the Plaintiff; and (4) a causal connection between
the protected activity and the adverse action.
In response and in support of its own motion for summary judgment,
the Defendant reiterates its argument that Mr. Toomey failed to
identify this claim as a source of damages in his interrogatory
responses, and thus argues his retaliation claim is doomed. It also
asserts that its breach of contract arguments provide an express
nonpretexual reason for filing the claim and that the burden then
shifts for the plaintiff to prove "the real reason was
retaliation."
Judge Chasanow opines that the case, the record is entirely devoid
of actual evidence of a breach of contract. She finds that the
Defendant's failure to produce evidence in discovery, or even now,
to show that Mr. Toomey engaged in "personal frolics" in his Helion
vehicle, suggests that its claim was without real basis. Further,
there is indisputable evidence that Helion knew of Mr. Toomey's
participation as a named Plaintiff in the suit before filing a
breach of contract claim against him in state court. Summary
judgment in Mr. Toomey's favor on his retaliation claim is
warranted.
III. Motion for Additional Discovery
Perhaps sensing the weakness in the proof offered on its breach of
contract claim, the Defendant now seeks additional discovery around
what it purports is Mr. Toomey's "defense as to his alleged Kung Fu
frolic." But the burden is on Helion to prove that such a frolic
occurred in the first instance, not on the Plaintiffs to show
otherwise in the face of a conclusory allegation. Having found the
underlying claim to be without an evidentiary basis, the Defendant
will not be granted permission belatedly to seek out such a basis,
well after discovery has closed.
Judge Chasanow holds that the moving party, Helion, was assuredly
not diligent in seeking out such evidence of frolic. It cannot
justify its own complacency by implying that it need only produce
such evidence now, in the face of Mr. Toomey's defense that he has
not visited the locations alleged by it. The burden of proving the
breach of contract counterclaim is on Helion, not Mr. Toomey, and
the Plaintiffs would be highly prejudiced by a reopening of the
discovery period as to this claim, particularly as the evidence to
date is entirely lacking. The request for additional discovery will
be denied.
Conclusion
For the foregoing reasons, Judge Chasanow denied the Defendant's
motion for summary judgment, except as to any MWPCL claims asserted
by Mr. McCloud, Mr. Turnerhill, or Mr. Carroll. The Judge granted
the Plaintiffs' cross-motion for partial summary judgment. She
denied the Defendant's request for additional discovery. A separate
order will follow.
A full-text copy of the Court's Aug. 27, 2021 Memorandum Opinion is
available at https://tinyurl.com/88t885k5 from Leagle.com.
JUUL LABS: Ogden School Sues Over E-Cigarette Campaign to Youth
---------------------------------------------------------------
OGDEN SCHOOL DISTRICT, on behalf of itself and all others similarly
situated, Plaintiff v. JUUL LABS, INC. F/K/A PAX LABS, INC.; JAMES
MONSEES; ADAM BOWEN; NICHOLAS PRITZKER; HOYOUNG HUH; RIAZ VALANI;
ALTRIA GROUP, INC.; ALTRIA CLIENT SERVICES LLC; ALTRIA GROUP
DISTRIBUTION COMPANY; and PHILIP MORRIS USA, INC., Defendants, Case
No. 3:21-cv-06865 (N.D. Cal., September 3, 2021) is a class action
against the Defendants for negligence, gross negligence, and
violations of Public Nuisance Law and the Racketeer Influenced and
Corrupt Organizations Act.
According to the complaint, the Defendants used three tactics to
maintain market dominance in the cigarette industry: (1) product
design to maximize addiction, (2) mass deception, and (3) targeting
of youth. Defendants JUUL Labs and Adam Bowen designed an
e-cigarette device allegedly intended to create and sustain
addiction, but without the stigma associated with cigarettes and
promoted them to vulnerable young population. JUUL Labs and other
Defendants developed and implemented a marketing scheme to mislead
users into believing that JUUL products contained less nicotine
than they actually do and were healthy and safe. The Defendants
enticed newcomers to nicotine with kid-friendly flavors without
ensuring the flavoring additives were safe for inhalation. The
Defendants targeted the youth market by placing vaporized campaigns
on youth-oriented websites and media and using influencers and
affiliates to amplify their message to a teenage audience. The
Defendants have successfully caused more young people to start
using e-cigarettes, creating a youth e-cigarette epidemic and
public health crisis, the suit says.
Ogden School District is a unified school district with its offices
located at 1950 Monroe Boulevard in Ogden, Utah.
JUUL Labs, Inc., formerly known as Pax Labs, Inc., is an American
electronic cigarette company, with its principal place of business
in San Francisco, California.
Altria Group, Inc. is a producer of tobacco products, with its
principal place of business in Richmond, Virginia.
Philip Morris USA, Inc. is a wholly-owned subsidiary of Altria
Group, Inc., with its principal place of business in Richmond,
Virginia.
Altria Client Services LLC is a tobacco company, with its principal
place of business in Richmond, Virginia.
Altria Group Distribution Company is a tobacco company, with its
principal place of business in Richmond, Virginia. [BN]
The Plaintiff is represented by:
James Frantz, Esq.
William B. Shinoff, Esq.
FRANTZ LAW GROUP, APLC
402 W. Broadway, Ste. 860
San Diego, CA 92101
Telephone: (619) 233-5945
Facsimile: (619) 525-7672
E-mail: jpf@frantzlawgroup.com
wshinoff@frantzlawgroup.com
JUUL LABS: Provo City Sues Over Youth's E-Cigarette Addiction
-------------------------------------------------------------
PROVO CITY SCHOOL DISTRICT, on behalf of itself and all others
similarly situated, Plaintiff v. JUUL LABS, INC. F/K/A PAX LABS,
INC.; JAMES MONSEES; ADAM BOWEN; NICHOLAS PRITZKER; HOYOUNG HUH;
RIAZ VALANI; ALTRIA GROUP, INC.; ALTRIA CLIENT SERVICES LLC; ALTRIA
GROUP DISTRIBUTION COMPANY; and PHILIP MORRIS USA, INC.,
Defendants, Case No. 3:21-cv-06866 (N.D. Cal., September 3, 2021)
is a class action against the Defendants for negligence, gross
negligence, and violations of Public Nuisance Law and the Racketeer
Influenced and Corrupt Organizations Act.
According to the complaint, the Defendants used three tactics to
maintain market dominance in the cigarette industry: (1) product
design to maximize addiction, (2) mass deception, and (3) targeting
of youth. Defendants JUUL Labs and Adam Bowen designed an
e-cigarette device allegedly intended to create and sustain
addiction, but without the stigma associated with cigarettes and
promoted them to vulnerable young population. JUUL Labs and other
Defendants developed and implemented a marketing scheme to mislead
users into believing that JUUL products contained less nicotine
than they actually do and were healthy and safe. The Defendants
enticed newcomers to nicotine with kid-friendly flavors without
ensuring the flavoring additives were safe for inhalation. The
Defendants targeted the youth market by placing vaporized campaigns
on youth-oriented websites and media and using influencers and
affiliates to amplify their message to a teenage audience. The
Defendants have successfully caused more young people to start
using e-cigarettes, creating a youth e-cigarette epidemic and
public health crisis, the suit added.
Provo City School District is a unified school district with its
offices located at 280 West 940 North in Provo, Utah.
JUUL Labs, Inc., formerly known as Pax Labs, Inc., is an American
electronic cigarette company, with its principal place of business
in San Francisco, California.
Altria Group, Inc. is a producer of tobacco products, with its
principal place of business in Richmond, Virginia.
Philip Morris USA, Inc. is a wholly-owned subsidiary of Altria
Group, Inc., with its principal place of business in Richmond,
Virginia.
Altria Client Services LLC is a tobacco company, with its principal
place of business in Richmond, Virginia.
Altria Group Distribution Company is a tobacco company, with its
principal place of business in Richmond, Virginia. [BN]
The Plaintiff is represented by:
James Frantz, Esq.
William B. Shinoff, Esq.
FRANTZ LAW GROUP, APLC
402 W. Broadway, Ste. 860
San Diego, CA 92101
Telephone: (619) 233-5945
Facsimile: (619) 525-7672
E-mail: jpf@frantzlawgroup.com
wshinoff@frantzlawgroup.com
KONINKELIJKE PHILIPS: Bemiss Sues Over Health Risks of CPAP Devices
-------------------------------------------------------------------
ROY BEMISS, QUINTON GOODALL, MAURICE JOSEPH, LAWRENCE ALLEN, LYDIA
GRIDLEY, ROBERT KELLEY, SHARON WALLACE, JOSEPH SIRIANNI, and DANIEL
LINCOLN, on behalf of themselves and all others similarly situated,
Plaintiffs v. KONINKELIJKE PHILIPS N.V.; PHILIPS NORTH AMERICA LLC;
and PHILIPS RS NORTH AMERICA LLC, Defendants, Case No.
2:21-cv-04173-WJE (W.D. Mo., September 3, 2021) is a class action
against the Defendants for breach of express warranty, breach of
implied warranty of merchantability, fraudulent misrepresentation,
fraud by omission, negligent misrepresentation, unjust enrichment,
medical monitoring, and violation of state unfair trade practices
and consumer protection laws.
According to the complaint, the Defendants manufactured and sold
Continuous Positive Airway Pressure (CPAP) and BiLevel Positive
Airway Pressure (BiLevel PAP) devices and mechanical ventilators
for sleep and home respiratory care, which contain polyester-based
polyurethane sound abatement foam (PE-PUR Foam). The Defendants
recalled CPAP and BiLevel PAP devices and mechanical ventilators
containing PE-PUR Foam because they determined that (a) the PE-PUR
Foam was at risk for degradation into particles that may enter the
devices' pathway and be ingested or inhaled by users, and (b) the
PE-PUR Foam may off-gas certain chemicals during operation health
risks associated to the devices. As a result of the health risks
associated with continued use of these devices and the recall, the
Plaintiffs' CPAP devices are now worthless. The Plaintiffs will be
forced to replace the device at considerable cost when a
replacement is available, says the suit.
Koninklijke Philips N.V. is a health technology company with its
principal executive offices at Philips Center, Amstelplein 2, 1096
BC Amsterdam, The Netherlands.
Philips North America LLC is a health technology company with its
principal place of business located at 222 Jacobs Street, Floor 3,
Cambridge, Massachusetts.
Philips RS North America LLC is a company that manufactures and
markets medical devices with its principal place of business
located at 6501 Living Place, Pittsburgh, Pennsylvania. [BN]
The Plaintiffs are represented by:
James G. Onder, Esq.
Inez J. Ross, Esq.
ONDERLAW, LLC
110 E. Lockwood
St. Louis, MO 63119
Telephone: (314) 963-9000
Facsimile: (314) 963-1700
E-mail: onder@onderlaw.com
iross@onderlaw.com
LJ ROSS: Appeals Denied Summary Judgment Bid in Rosen FDCPA Suit
----------------------------------------------------------------
Defendant LJ Ross Associates, Inc. filed an appeal from a court
ruling entered in the lawsuit styled Lea Rosen individually and on
behalf of all others similarly situated, Plaintiff v. LJ Ross
Associates, Inc., Defendant, Case No. 1:19-cv-05516, in the U.S.
District Court for the Eastern District of New York (Brooklyn).
The Plaintiff has brought suit against LJ Ross Associates, a debt
collection agency, claiming that the Defendant overstated the
amount of debt she owed to energy company Con Edison in violation
of the Fair Debt Collection Practices Act.
The Defendant now seeks a review of the Court's Order and Judgment
dated July 22, 2021, denying its motion for summary judgment and
granting Plaintiff's motion for summary judgment.
The appellate case is captioned as Rosen v. LJ Ross Associates,
Inc., Case No. 21-2053, in the United States Court of Appeals for
the Second Circuit, filed on Aug. 23, 2021.[BN]
Defendant-Appellant LJ Ross Associates, Inc. is represented by:
R.J. Cronkhite, Esq.
DINSMORE & SHOHL, LLP
900 Wilshire Dr., Suite 300
Troy, MI 48034
Telephone: (248) 203-1632
E-mail: rj.cronkhite@dinsmore.com
Plaintiff-Appellee Lea Rosen, individually and on behalf of all
others similarly situated, is represented by:
Craig B. Sanders, Esq.
BARSHAY SANDERS, PLLC
100 Garden City Plaza
Garden City, NY 11530
Telephone: (516) 203-7600
E-mail: csanders@barshaysanders.com
LOANDEPOT INC: TCPA Related Class Suit Settled Individually
-----------------------------------------------------------
LoanDepot, Inc. said in its Form 10-Q Report filed with the
Securities and Exchange Commission on August 11, 2021, for the
quarterly period ended June 30, 2021, that the Company settled, on
an individual basis, a putative Telephone Consumer Protection Act
("TCPA") class action for a nominal amount.
The Company previously disclosed a second putative TCPA class
action where (i) the Company filed dispositive motions to dismiss
the claims, (ii) the court granted the Company's motion to stay the
matter pending the outcome of a circuit court's decision in a TCPA
mater in which the Company is not a party, and (iii) the Company
has determined that the legal action will not have a material
adverse effect on the financial condition of the Company.
LoanDepot, Inc., a customer-centric, technology-empowered
residential mortgage platform with a widely recognized consumer
brand. The company is based in Foothill Ranch, California.
LOWE'S HOME: New York Court Narrows NYLL Claims in Rodrigue Suit
----------------------------------------------------------------
In the case, SERGE RODRIGUE, Plaintiff v. LOWE'S HOME CENTERS, LLC,
and LOWE'S COMPANIES, INC., Defendants, Case No. 20-CV-1127 (RPK)
(RLM) (E.D.N.Y.), Judge Rachel P. Kovner of the U.S. District Court
for the Eastern District of New York granted in part and denied in
part the Defendants' motion to dismiss the amended class action
complaint.
Background
In an amended class action complaint, Rodrigue sues the Defendants
under New York Labor Law ("NYLL"). The Plaintiff alleges that the
Defendants were required to pay manual workers weekly, but instead
paid him and other manual workers every two weeks. The Plaintiff
further alleges that the Defendants were required to provide manual
workers with wage statements showing their weekly hours, but
instead provided wage statements showed hours for two-week
periods.
Since May 2016, Plaintiff Rodrigue has been employed as a "Customer
Service Associate" by the Defendants. In that position, the
Plaintiff spends at least a quarter of his time performing physical
tasks, including stocking shelves, stacking boxes, unpacking boxes,
carrying trash, sweeping floors, and arranging inventory. He
alleges that the Defendants compensate him on a "bi-weekly basis,"
meaning that the Defendants pay him every two weeks for two weeks
of work. The Plaintiff has attached a representative wage statement
to his complaint.
The Plaintiff filed the operative class action complaint against
the Defendants on June 2, 2020. The first cause of action alleges
that the Defendants failed to pay timely wages in violation of
N.Y.L.L. Section 191(1)(a) because they paid the Plaintiff on a
biweekly basis. The Plaintiff seeks liquidated damages as well as
reasonable attorneys' fees, costs, pre-judgment interest, and
post-judgment interest. The second cause of action alleges that the
Defendants failed to provide accurate wages statements in violation
of N.Y.L.L. Section 195(3) because their wage statements specified
the hours worked by the Plaintiff in a two-week period, rather than
the hours worked per week. The Plaintiff seeks statutory penalties
of $250 for each workday where the Defendants failed to provide
accurate wage statements as well as reasonable attorneys' fees and
costs.
The Defendants moved to dismiss the operative complaint for failure
to state a claim under Rule 12(b)(6) of the Federal Rules of Civil
Procedure. Alongside the Defendants' memorandum of law, the
Defendants have attached a letter dated April 6, 1999 from the New
York State Department of Labor. The letter states that the
Department of Labor "grants authorization for Lowe's Home Centers,
Inc., to pay wages to its manual workers employed in New York State
on a biweekly basis."
Analysis
Judge Kovner grants the Defendants' motion to dismiss in part. She
holds that the Plaintiff has stated a claim for untimely wages
under Section 191 of the New York Labor Law but not for improper
wage statements under Section 195 of that statute.
I. Plaintiff has stated a claim for untimely wages under Section
191
Judge Kovner holds that the Plaintiff has stated a claim that the
Defendants violated Section 191 of the New York Labor Law and that
he is entitled to liquidated damages as a result. First, she finds
that the Defendants are not entitled to dismissal of the complaint
based on the purported authorization letter, which is neither
integral to the complaint nor amenable to judicial notice. The
letter does not appear on the face of the amended complaint, nor
did the Plaintiff attach the letter as an exhibit to the complaint
or otherwise incorporate the letter by reference. Nor is the
Defendants' purported letter integral to the amended complaint. A
document is "integral" to the complaint when the complaint "relies
heavily upon its terms and effect." Nor are the contents of the
authorization letter amenable to judicial notice. Hence, the Judge
declines to take notice of the Defendants' purported authorization
letter.
Second, the Judge holds that the Plaintiff has stated a claim for
untimely payment of wages in violation of the New York Labor Law.
In Vega v. CM & Assocs. Constr. Mgmt., LLC, 175 A.D.3d 1144 (N.Y.
App. Div. 2019), a state intermediate court -- the Appellate
Division's First Department -- has held that New York Labor Law
permits employees to seek liquidated damages for the untimely
payment of wages, even if wages are no longer past due. Because the
Defendants offer no "persuasive evidence that the state's highest
court would reach a different conclusion" than the First Department
did in Vega, the Court is "bound to apply the law as interpreted
by" the intermediate appellate court.
Third, the Judge holds that the Defendants' remaining challenges to
an award of liquidated damages are premature. She construes the
Defendants' claim as resting on the Due Process Clause of the
Fourteenth Amendment, because although the Defendants invoke "the
New York Constitution," they point to no particular provision of
that document and cite only cases construing the U.S. Constitution.
Even if the Defendants were correct that liquidated damages equal
to "the amount of all late payments" would violate the Due Process
Clause, the Judge finds that the Defendants have offered no reason
why they would be entitled to dismissal of the Plaintiff's claim --
rather than a reduction in damages.
For these reasons, the Defendants' motion to dismiss the
Plaintiff's claim for untimely wage payments is therefore denied.
II. Plaintiff has not stated a claim for improper wage statements
under Section 195(3) of the New York Labor Law.
Judge Kovner grants the Defendants' motion to dismiss the
Plaintiff's claim for improper wage statements under Section 195(3)
of the New York Labor Law. That provision requires an employer to
"furnish each employee with a statement with every payment of
wages." The Plaintiff alleges that the Defendants violated Section
195(3) because they "failed to provide Mr. Rodrigue with wage
statements specifying the amount of hours he worked per week." But
while Section 195(3) requires an employer to specify the hourly
rate of pay, "dates of work covered by a payment of wages," and
number of regular and overtime hours worked, N.Y.L.L. Section
195(3), it "does not require that wage statements be furnished on a
weekly basis or provide a breakdown of how many hours an employee
works 'per week.'" As a result, the Plaintiff's claim under Section
195(3) is dismissed.
Conclusion
For these reasons, Judge Kovner denied the Defendants' motion to
dismiss the Plaintiff's claim under New York Labor Law Sections 191
and 198(1-a). She granted the Defendants' motion to dismiss the
Plaintiff's claim under New York Labor Law Section 195(3).
A full-text copy of the Court's Aug. 27, 2021 Memorandum & Order is
available at https://tinyurl.com/znav5myr from Leagle.com.
MANNKIND CORP: Putative Class Action in Tel Aviv Dismissed
----------------------------------------------------------
MannKind Corporation said in its Form 10-Q Report filed with the
Securities and Exchange Commission on August 11, 2021, for the
quarterly period ended June 30, 2021, that the putative class
action suit in Tel Aviv has been dismissed.
Following the public announcement in January 2016 of the election
by Sanofi-Aventis U.S. LLC to terminate a license and collaboration
agreement (the "Sanofi License Agreement") between the Company and
Sanofi and the subsequent decline in the Company's stock price, two
motions were submitted to the district court at Tel Aviv, Economic
Department for the certification of a class action against the
Company and certain of its officers and directors.
In general, the complaints allege that the Company and certain of
its officers and directors violated Israeli and U.S. securities
laws by making materially false and misleading statements regarding
the prospects for Afrezza, thereby artificially inflating the price
of its common stock.
The plaintiffs are seeking monetary damages. In November 2016, the
district court dismissed one of the actions without prejudice. In
the remaining action, the district court ruled in October 2017 that
U.S. law will apply to this case.
The plaintiff appealed this ruling, and following an oral hearing
before the Supreme Court of Israel, decided to withdraw his appeal.
Subsequently, in November 2018, the Company filed a motion to
dismiss the certification motion.
In September 2019, the plaintiff brought a motion to amend his
claim, which the court denied in January 2020. The plaintiff
appealed this denial to the Supreme Court of Israel, which issued a
decision in July 2021 upholding the lower court decision.
Subsequently, the plaintiff withdrew his complaint and the district
court dismissed the motion to certify, bringing the litigation to
an end.
MannKind Corporation, a biopharmaceutical company, focuses on the
development and commercialization of inhaled therapeutic products
for diabetes and pulmonary arterial hypertension patients. MannKind
Corporation was founded in 1991 and is headquartered in Westlake
Village, California.
MCCREARY VESELKA: Appeals Class Certification in Perez FDCPA Suit
-----------------------------------------------------------------
Defendants McCreary, Veselka, Bragg and Allen, P.C., et al., filed
an appeal from a court ruling entered in the lawsuit entitled
MARIELA PEREZ, on behalf of herself and all others similarly
situated, Plaintiff v. McCREARY, VESELKA, BRAGG & ALLEN, P.C., and
MVBA, LLC, Defendants, Case No. 1:19-CV-724, in the U.S. District
Court for the Western District of Texas, Austin.
As reported in the Class Action Reporter on Aug. 30, 2021, Judge
Robert Pitman of the Western District of Texas (i) granted in part
and denied in part the Defendants' Motion for Summary Judgment;
(ii) granted the Defendants' summary judgment as to Perez's claims
against MVBA PC and Perez's claim based on Section 1692(f);
(iii) denied Perez's Motion for Summary Judgment; and (iv) granted
Perez's Motion to Certify Class.
Ms. Perez brings claims under the Fair Debt Collection Practices
Act ("FDCPA"). Shortly after May 2, 2019, Perez received a letter
stating that "MVBA has been retained to collect an outstanding debt
due," with regards to a utility bill for $486.57 that was
delinquent as of May 1, 2015. The letter was dated May 2, 2019. The
letter included a heading at the top that stated "MVBA LLC," and
requested payment be mailed to "McCreary Veselka Bragg & Allen,
L.L.C." and "MVBA" at the bottom of the letter. It states that
"payment in full is required." Because the debt was more than four
years old, it was no longer legally enforceable under the Texas
statute of limitations.
The Defendants now seek a review of the order granting Plaintiff's
motion to certify class.
The appellate case is captioned as Perez v. McCreary Veselka, Case
No. 21-90042, in the U.S. Court of Appeals for the Fifth Circuit,
filed on September 1, 2021.
The briefing schedule in the Appellate Case states that
response/opposition was due on September 10, 2021.[BN]
Defendants-Petitioners McCreary, Veselka, Bragg and Allen, P.C.;
and MVBA, L.L.C., formerly known as McCreary, Veselka, Bragg &
Allen, L.L.C., are represented by:
Eugene Xerxes Martin, Esq.
MALONE FROST MARTIN, P.L.L.C.
8750 N. Central Expressway
Dallas, TX 75231
Telephone: (214) 346-2630
E-mail: xmartin@mamlaw.com
Plaintiff-Respondent Mariela Perez, on behalf of herself and all
others similarly situated, is represented by:
Brent Allen Devere, Esq.
1411 West Avenue
Austin, TX 78701
Telephone: (512) 457-8080
E-mail: bdevere@1411west.com
MONEY NETWORK: Fails to Secure Money Cards, Evans Suit Alleges
--------------------------------------------------------------
TERRICA N. EVANS, individually and on behalf of all others
similarly situated, Plaintiff v. MONEY NETWORK FINANCIAL, LLC,
WALMART & SEDGWICK, Defendants, Case No. 2:21-cv-01205-MHH (N.D.
Ala., September 3, 2021) is a class action against the Defendants
for violations of the Employee Disability Income Security Act.
The case arises from the Defendants' alleged illegal and abusive
practice of refusing to invest in appropriate security measures to
avoid identity theft and cybersecurity threats while at the same
touting Walmart Money Network Cards as safe and secure and charge
fees for use of the same. As a result of the Defendants' inaction,
the Plaintiff and Class members experienced money loss on their
cards due to theft, cybersecurity risks and/or fraud. Had the
Defendants complied with ERISA, the Plaintiff and the Class would
have been provided reasonable cybersecurity measures which would
have prevented the theft in their disability and other compensation
benefits, the suit says.
Money Network Financial, LLC is a distribution agent and service
provider located at 2900 Westside Parkway, Alpharetta, Georgia.
Walmart Inc. is an American multinational retail corporation that
operates a chain of hypermarkets, discount department stores, and
grocery stores from the United States, headquartered in
Bentonville, Arkansas.
Sedgwick is a provider of technology-enabled risk, benefits and
integrated business solutions, located in Memphis, Tennessee. [BN]
The Plaintiff is represented by:
Lee W. Loder, Esq.
LODER, P.C.
P.O. Box 13545
Birmingham, AL 35202
Telephone: (205) 326-0566
Facsimile: (856) 997-1401
E-mail: lloder@loderpc.com
NATIONSTAR MORTGAGE: Dismissal of Kemp's MCDCA Claim Upheld in Part
-------------------------------------------------------------------
In the case, NATIONSTAR MORTGAGE LLC D/B/A MR. COOPER, ET AL. v.
DONNA KEMP, No. 43, September Term, 2020 (Md. App.), the Court of
Appeals of Maryland affirmed in part and reversed in part the
judgment of the Court of Special Appeals affirming the Circuit
Court's dismissal of the claim under the Maryland Consumer Debt
Collection Act, based on different reasoning than that of the
Circuit Court.
Background
A clever man once said that "cauliflower is nothing more than
cabbage with a college education." It might be said, less cleverly,
that code revision in Maryland -- the process that restates
statutes to make them more logical, accessible, and compatible with
the English language -- results in a new law that is nothing more
than the old law with a college education. At bottom, the case is
about whether a code revision bill did more than that.
Some years ago, Respondent/Cross-Petitioner Kemp entered into a
mortgage loan secured by a deed of trust on her home. The
originator of that loan later assigned it to
Petitioner/Cross-Respondent Federal National Mortgage Association
("Fannie Mae"), which contracted with the predecessor of
Petitioner/Cross-Respondent Nationstar, to service the loan -- that
is, to do such things as collecting and disbursing payments owed by
the borrower. Under longstanding Maryland law concerning the
assignment of mortgages, Fannie Mae succeeded to the same rights
and obligations of the original lender.
Ms. Kemp later fell behind on her mortgage payments. After
declaring her to be in default, Nationstar assessed Ms. Kemp fees
for drive-by inspections of the property. A provision of the
Maryland Usury Law prohibits lenders from imposing such fees. Ms.
Kemp, Fannie Mae, and Nationstar entered into a loan modification
agreement to resolve the default, but Ms. Kemp objected to the
assessment of the property inspection fees. Nationstar took the
position that neither Fannie Mae, the assignee of the loan, nor its
agent Nationstar, fit within a definition of "lender" that had been
added to the Usury Law as part of code revision. Nationstar
asserted that it was therefore exempt from the prohibition against
property inspection fees. Ms. Kemp disagreed.
Ms. Kemp filed a complaint in the Circuit Court for Montgomery
County and, after it was dismissed by the Circuit Court for failure
to state a cause of action, pursued the appeal. The primary
question in the appeal is whether the addition of a definition of
"lender" to the Maryland Usury Law during code revision effected a
significant change in that law -- and the Maryland common law --
that lay latent for more than four decades before the case arose.
Discussion
To resolve the appeal, the Court of Appeals must answer the
following questions:
(1) Does CL Section 12-121 apply to an inspection fee charged
by an assignee of a mortgage?
(2) Did the complaint adequately allege that Nationstar
attempted to collect an alleged debt by asserting a right to
collect inspection fees with knowledge that the right did not
exist, in violation of the MCDCA?
With respect to the first question, the Court of Appeals opines
that CL Section 12-121 limits the authority of a person who makes a
mortgage loan to charge property inspection fees in connection with
that loan. The common law rule, long applied to assigned mortgages
in Maryland, provides that, if the originator of a mortgage loan
assigns the loan, the assignee succeeds to the same rights and
obligations under the loan agreement as its assignor. When the
General Assembly added a definition of "lender" to the Maryland
Usury Law as part of a 1975 code revision that made the Usury Law
part of the Commercial Law Article, it did not change that rule. In
keeping with the principle that the Court is to harmonize statutory
provisions when possible and to presume that the Legislature does
not abrogate the common law without making that intention clear, we
interpret the term "lender" in CL Section 12-121 to include an
assignee who holds an outstanding loan.
The argument advanced by Nationstar in the case -- that the
assignee (Fannie Mae) succeeded to the right of its assignor
(Countrywide) to charge fees authorized by paragraph 14 of the deed
of trust, but did not succeed to the limitations incorporated in
that authorization -- would give the assignee greater rights as
"lender" under the deed of trust than its assignor, the entity
actually defined as "lender" in that instrument. Nationstar finds
authorization for the fees in paragraph 14 of the deed of trust,
while jettisoning the statutory limitations such as CL Section
12-121 explicitly incorporated in that authorization. The common
law concerning assignment of mortgages does not support such a
result. And, the addition of a definition of "lender" as part of
code revision did not change that law.
Accordingly, the Court of Appeals holds that Fannie Mae (and its
agent Nationstar), as assignee of Countrywide, did not acquire any
greater right to assess property inspection fees against a borrower
like Ms. Kemp than Countrywide itself had under the deed of trust,
which limited the authorization to charge fees prohibited by State
law. Ms. Kemp has adequately pled causes of action based on a
violation of CL Section 12-121.
With respect to the second question, the Court of Appeals opines
that the MCDCA applies to debt collectors who collect or attempt to
collect a debt arising from a consumer transaction -- that is, a
transaction for "personal, family, or household purposes." There
appears to be no dispute that Ms. Kemp's mortgage loan is a
consumer transaction within the purview of the statute.
CL Section 14-202(8) prohibits the claim or attempt to enforce a
"right" with knowledge that the alleged right does not exist. The
Court of Appeals concludes that Ms. Kemp's complaint alleged the
elements of a claim under CL Section 14-202(8): It alleged
Nationstar's claim of a right to assess a property inspection fee,
the illegality of the fee that Nationstar claimed, and Nationstar's
knowledge that the right did not exist. The Court of Appeals
therefore holds that Ms. Kemp adequately pled the elements of a
cause of action under CL Section 14-202(8).
Conclusion
The Court of Appeals concludes that code revision did not change
Maryland law applicable to assignees of mortgage loans and that the
prohibition on property inspection fees applies to Nationstar as
the agent of Fannie Mae. It also concludes, consistent with the
principles announced in the Court's opinion in Chavis v. Blibaum &
Associates, P.A., that Ms. Kemp's complaint adequately stated a
claim under the MCDA.
The Second Amended Complaint adequately alleged that Nationstar
attempted to collect the property inspection fees by asserting that
it had a right to assess those fees against Ms. Kemp, with
knowledge that such a right did not exist, in violation of CL
Section 14-202(8).
For these reasons, the Court of Appeals affirmed in part and
reversed in part the judgment of the Court of Special Appeals.
Costs will be paid by the Petitioners/Cross-Respondents.
A full-text copy of the Court's Aug. 27, 2021 Opinion is available
at https://tinyurl.com/tdfunb5p from Leagle.com.
NEONODE INC: Continues to Defend Purported Class Suit in Delaware
-----------------------------------------------------------------
Neonode Inc. said in its Form 10-Q Report filed with the Securities
and Exchange Commission on August 11, 2021, for the quarterly
period ended June 30, 2021, that the company continues to defend a
purported class action suit with Case No. 1:20-cv-01174-UNA.
On September 2, 2020, a putative stockholder of Neonode filed a
purported class action lawsuit (Case No. 1:20-cv-01174-UNA) in the
United States District Court for the District of Delaware against
Neonode, the Board of Directors of Neonode, and the Chief Executive
Officer of Neonode for alleged violation of Sections 14(a) and
20(a) of the Securities Exchange Act of 1934, as amended, in
connection with disclosure of information concerning Proposal 5 and
Proposal 6 in the proxy statement filed with the SEC by Neonode on
August 20, 2020 for the 2020 Annual Meeting of Stockholders of
Neonode (the "Proxy Statement").
These proposals for shareholder approval related to the Private
Placement by Neonode on August 5, 2020 in which two directors and
the chief executive officer of Neonode participated.
The relief sought by the plaintiff included a preliminary
injunction to enjoin the stockholder votes on Proposal 5 and
Proposal 6.
On October 20, 2020, the plaintiff voluntarily dismissed the
lawsuit in the United States District Court.
However, on February 11, 2021, the plaintiff's counsel informed
Neonode that they would file a fee petition as a result of Neonode
filing the definitive additional materials to the Proxy Statement
on September 18, 2020.
Neonode intends to vigorously defend against any attempt by the
plaintiff's counsel to obtain any fee award.
Neonode Inc. develops and licenses user interfaces and optical
multi-touch solutions for consumer brands. The Company is focused
on licensing its technology to Original Equipment Manufacturers and
and Original Design Manufacturers who embed their technology into
electronic devices.
NETFLIX INC: Estate of Herndon Removed to N.D. California
---------------------------------------------------------
The Estate of B.H, John Herndon, J.H., a minor, T.H., a minor, on
behalf of themselves and all others similarly situated v. NETFLIX,
INC., Case No. 21CV382518, was removed from the Superior Court of
Forsyth County to the U.S. District Court for the Northern District
of California on Aug. 25, 2021.
The District Court Clerk assigned Case No. 4:21-cv-06561-YGR to the
proceeding.
The nature of suit is stated as Other P.I.
Netflix, Inc. -- https://www.netflix.com/ -- is an American
over-the-top content platform and production company headquartered
in Los Gatos, California.[BN]
The Plaintiffs are represented by:
Ryan Andrew Hamilton, Esq.
HAMILTON LAW LLC
5125 S. Durango, Suite C
Las Vegas, NV 89113
Phone: (702) 818-1818
Email: ryan@hamlegal.com
- and -
James David Banker, Esq.
THE DIGITAL JUSTICE FOUNDATION
850 Coleman Avenue
Menlo Park, CA 94025
Phone: (714) 722-5658
Email: jimbanker@gmail.com
The Defendant is represented by:
Cory M. Batza, Esq.
Jennifer L. Bryant, Esq.
MUNGER, TOLLES & OLSON LLP
350 South Grand Avenue, Fiftieth Floor
Los Angeles, California 90071-3426
Phone: (213) 683-9100
Facsimile: (213) 687-3702
Email: Cory.Batza@mto.com
Jennifer.Bryant@mto.com
- and -
Blanca F. Young, Esq.
MUNGER, TOLLES & OLSON LLP
560 Mission Street, Twenty-Seventh Floor
San Francisco, CA 94105-2907
Phone: (415) 512-4000
Facsimile: (415) 512-4077
Email: blanca.young@mto.com
NEUBASE THERAPEUTICS: Awaits Court Ruling on Lehman Appeal
----------------------------------------------------------
NeuBase Therapeutics, Inc. said in its Form 10-Q Report filed with
the Securities and Exchange Commission on August 13, 2021, for the
quarterly period ended June 30, 2021, that the parties in the
putative class action suit headed by George Lehman and Insured
Benefit Plans, Inc., are awaiting the Appeals Court's decision on
the appeal of order denying plaintiffs' leave to amend.
On February 14, 2018, plaintiff Jeevesh Khanna, commenced an action
in the Southern District of New York, against Ohr Pharmaceutical,
Inc. (which was the name of the Company prior to the completion of
the merger with NeuBase Therapeutics, Inc., a Delaware corporation
(Legacy NeuBase), in accordance with the terms of the Agreement and
Plan of Merger and Reorganization entered into on January 2, 2019,
as amended, pursuant to which (i) Ohr Acquisition Corp., a
subsidiary of Ohr, merged with and into Legacy NeuBase, with Legacy
NeuBase (renamed as NeuBase Corporation) continuing as a
wholly-owned subsidiary of Ohr and the surviving corporation of the
merger and (ii) Ohr was renamed as NeuBase Therapeutics, Inc. and
several current and former officers and directors, alleging that
they violated federal securities laws between June 24, 2014 and
January 4, 2018.
On August 7, 2018, the lead plaintiffs, now George Lehman and
Insured Benefit Plans, Inc., filed an amended complaint, stating
the class period to be April 8, 2014 through January 4, 2018.
The plaintiffs did not quantify any alleged damages in their
complaint but, in addition to attorneys' fees and costs, they seek
to maintain the action as a class action and to recover damages on
behalf of themselves and other persons who purchased or otherwise
acquired Ohr common stock during the putative class period and
purportedly suffered financial harm as a result.
The company and the individuals dispute these claims and intend to
defend the matter vigorously. On September 17, 2018, Ohr filed a
motion to dismiss the complaint. On September 20, 2019, the
district court entered an order granting the defendants' motion to
dismiss.
On October 23, 2019, the plaintiffs filed a notice of appeal of
that order dismissing the action and other related orders by the
district court. After full briefing and oral argument, on October
9, 2020, the U.S. Court of Appeals for the Second Circuit issued a
summary order affirming the district court's order granting the
motion to dismiss and remanding the action to the district court to
make a determination on the record related to plaintiffs' request
for leave to file an amended complaint.
On October 16, 2020, the district court requested the parties'
positions as to how they proposed to proceed in light of the Second
Circuit's decision. After letter briefing on this issue and
plaintiffs' alternative request for leave to file a second amended
complaint, on November 16, 2020, the district court denied
plaintiffs' request to amend and dismissed with prejudice
plaintiffs' claims.
On December 16, 2020, plaintiffs filed a notice of appeal of that
order denying plaintiffs leave to amend. Briefing on the appeal has
been completed and the parties are currently awaiting a decision
from the Second Circuit.
NeuBase said "This litigation could result in substantial costs and
a diversion of management's resources and attention, which could
harm the Company's business and the value of the Company's common
stock."
NeuBase Therapeutics, Inc., a biotechnology company, engages in the
development of various antisense therapies to address genetic
diseases in the United States. The company offers gene silencing
therapies, including the proprietary PATrOL platform, a
peptide-nucleic acid antisense oligonucleotide for genetic diseases
caused by mutant proteins, including the Huntington's disease and
myotonic dystrophy, as well as various other genetic disorders.
NeuBase Therapeutics, Inc. is headquartered in Pittsburgh,
Pennsylvania.
On July 12, 2019, NeuBase completed the merger deal with Ohr
Pharmaceutical.
NEUBASE THERAPEUTICS: Wheby Class Action vs Ohr Pharma Ongoing
--------------------------------------------------------------
NeuBase Therapeutics, Inc. said in its Form 10-Q Report filed with
the Securities and Exchange Commission on August 13, 2021, for the
quarterly period ended June 30, 2021, that Ohr Pharmaceutical, Inc.
continues to defend a class action entitled, Wheby v. Ohr
Pharmaceutical, Inc., et al., Case No. 1:19-cv-00541-UNA.
On March 20, 2019, a putative class action lawsuit was filed in the
United States District Court for District of Delaware naming as
defendants Ohr and its board of directors, Legacy NeuBase and Ohr
Acquisition Corp., captioned Wheby v. Ohr Pharmaceutical, Inc., et
al., Case No. 1:19-cv-00541-UNA.
The plaintiffs in the Wheby Action allege that the preliminary
joint proxy/prospectus statement filed by Ohr with the SEC on March
8, 2019 contained false and misleading statements and omitted
material information in violation of Section 14(a) of the Exchange
Act and SEC Rule 14a-9 promulgated thereunder, and further that the
individual defendants are liable for those alleged misstatements
and omissions under Section 20(a) of the Exchange Act.
The complaint in the Wheby Action has not been served on, nor was
service waived by, any of the named defendants in that action. The
action seeks, among other things, to rescind the Merger or an award
of damages, and an award of attorneys' and experts' fees and
expenses. The defendants dispute the claims raised in the Wheby
Action.
NeuBase said, "Management believes that the likelihood of an
adverse decision from the sole remaining action is unlikely;
however, the litigation could result in substantial costs and a
diversion of management's resources and attention, which could harm
our business and the value of our common stock."
NeuBase Therapeutics, Inc., a biotechnology company, engages in the
development of various antisense therapies to address genetic
diseases in the United States. The company offers gene silencing
therapies, including the proprietary PATrOL platform, a
peptide-nucleic acid antisense oligonucleotide for genetic diseases
caused by mutant proteins, including the Huntington's disease and
myotonic dystrophy, as well as various other genetic disorders.
NeuBase Therapeutics, Inc. is headquartered in Pittsburgh,
Pennsylvania.
On July 12, 2019, NeuBase completed the merger deal with Ohr
Pharmaceutical.
ODDFELLOWS MANAGEMENT: Fischler Files ADA Suit in S.D. New York
---------------------------------------------------------------
A class action lawsuit has been filed against Oddfellows Management
LLC. The case is styled as Brian Fischler, Individually and on
behalf of all other persons similarly situated v. Oddfellows
Management LLC, Case No. 1:21-cv-07457 (S.D.N.Y., Sept. 7, 2021).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Oddfellows -- https://www.oddfellowsnyc.com/ -- is a small-batch
ice cream company with a compulsive creativity problem.[BN]
The Plaintiff is represented by:
Douglas Brian Lipsky, Esq.
LIPSKY LOWE LLP
420 Lexington Avenue, Suite 1830
New York, NY 10170
Phone: (212) 392-4772
Fax: (212) 444-1030
Email: doug@lipskylowe.com
PARAMONT BEAUTY: Ouedraogo Sues Over Unpaid Overtime Wages
----------------------------------------------------------
Moussa Ouedraogo, on behalf of himself and others similarly
situated v. PARAMONT BEAUTY SUPPLY D/B/A ROYAL BEAUTY SUPPLY, INC.,
JOHN and JANE DOES 1-10, and XYZ Corp. 1-10, Case No.
ESX-L-006531-21 (N.J. Super. Ct., Essex Cty., Aug. 26, 2021), is
brought against the Defendants for violations of the New Jersey
Wage and Hour Law, and the New Jersey Wage Payment Law, and the
regulations promulgated thereunder.
The Plaintiff alleges that pursuant to the NJWHL and NJWPL, and the
regulations promulgated thereunder, Plaintiff is entitled to
recover from Defendants: unpaid wages at the minimum wage rate;
unpaid overtime wages; pre-judgment and post judgment interest; any
and all statutory liquidated damages and/or penalties; and
attorney’s fees and costs. The Defendants were obligated under
the NJWHL to pay Ouedraogo and the Class Members at least one and
one-half times the minimum wage rate for any overtime worked.,
i.e., for any hours worked in excess of 40 hours per week. However,
the Defendants failed to pay Ouedraogo and the Class members for
any overtime throughout their employment, says the complaint.
The Plaintiff was employed as a general store clerk at Royal Beauty
Supply.
RBS is a New Jersey for-profit corporation, with its principal
place of business located in Irvington, New Jersey.[BN]
The Plaintiff is represented by:
Ty Hyderally, Esq.
HYDERALLY & ASSPCIATES, P.C.
33 PLYMOUTH STREET, SUITE 202
MONTCLAIR, NEW JERSEY 07042
Phone: (973) 509-8500
Facsimile: (973) 509-8501
Email: TYH@EMPLOYMENTLIT.COM
PAYSIGN INC: Bid to Nix Consolidated Securities Class Suit Pending
------------------------------------------------------------------
Paysign, Inc. said in its Form 10-Q Report filed with the
Securities and Exchange Commission on August 11, 2021, for the
quarterly period ended June 30, 2021, that the motion to dismiss
the consolidated class action suit entitled, In re Paysign, Inc.
Securities Litigation, is pending.
The Company has been named as a defendant in three complaints filed
in the United States District Court for the District of Nevada:
Yilan Shi v. Paysign, Inc. et. al., filed on March 19, 2020, Lorna
Chase v. Paysign, Inc. et. al., filed on March 25, 2020, and Smith
& Duvall v. Paysign, Inc. et. al., filed on April 2, 2020.
Smith & Duvall v. Paysign, Inc. et. al. was voluntarily dismissed
on May 21, 2020.
On May 18, 2020, the Shi plaintiffs and another entity called the
Paysign Investor Group each filed a motion to consolidate the
remaining Shi and Chase actions and to be appointed lead plaintiff.
The Complaints are putative class actions filed on behalf of a
class of persons who acquired the Company's common stock from March
19, 2019 through March 31, 2020, inclusive. The Complaints
generally allege that the Company, Mark R. Newcomer, and Mark
Attinger violated Section 10(b) of the Exchange Act, and that
Messrs. Newcomer and Attinger violated Section 20(a) of the
Exchange Act, by making materially false or misleading statements,
or failing to disclose material facts, regarding the Company's
internal control over financial reporting and its financial
statements.
The Complaints seek class action certification, compensatory
damages, and attorney's fees and costs.
On December 2, 2020, the Court consolidated Shi and Chase as In re
Paysign, Inc. Securities Litigation and appointed the Paysign
Investor Group as lead plaintiff.
On January 12, 2021, Plaintiffs filed an Amended Complaint in the
consolidated action. Defendants filed a Motion to Dismiss the
Amended Complaint on March 15, 2021, which Plaintiffs opposed via
an opposition brief filed on April 29, 2021, to which Defendants
replied on June 1, 2021.
Thus, the motion is now fully briefed.
The Court has not set a hearing date on the motion, or informed the
parties whether it intends to entertain oral argument or rule upon
the papers filed.
Paysign, Inc. is a vertically integrated provider of prepaid card
programs and processing services for corporate, consumer and
government applications. The company's payment solutions are
utilized by its corporate customers as a means to increase customer
loyalty, increase patient adherence rates, reduce administration
costs and streamline operations. The company is based in Henderson,
Nevada.
PEOPLECONNECT INC: Fry Files Suit in W.D. Washington
----------------------------------------------------
A class action lawsuit has been filed against PeopleConnect, Inc.
The case is styled as Jason Fry, on behalf of himself and all
others similarly situated v. PeopleConnect, Inc., Case No.
2:21-cv-01222 (W.D. Wash., Sept. 7, 2021).
The nature of suit is stated as Constitutional - State Statute.
Peopleconnect, Inc. -- https://peopleconnect.us/ -- provides online
social network services. The Company offers basic people search,
list management, criminal records, employee screening, human
resources background checks, and identity theft protection
services. Peopleconnect serves customers in the United States.[BN]
The Plaintiff is represented by:
Samuel J. Strauss, Esq.
TURKE & STRAUSS, LLP
613 Williamson Street, Suite 201
Madison, WI 53703
Phone: (608) 237-1775
Email: sam@turkestrauss.com
PERRIGO CO: Baton Class Suit in Tel Aviv Still Stayed
-----------------------------------------------------
Perrigo Company plc said in its Form 10-Q Report filed with the
Securities and Exchange Commission on August 11, 2021, for the
quarterly period ended July 3, 2021, that the class action suit
entitled, Baton v. Perrigo Company plc, et. al., is still stayed.
On December 31, 2018, a shareholder filed an action against the
Company, its CEO Murray Kessler, and its former CFO Ronald
Winowiecki in Tel Aviv District Court (Baton v. Perrigo Company
plc, et. al.).
The case is a securities class action brought in Israel making
similar factual allegations for the same period as those asserted
in the In re Perrigo Company plc Sec. Litig case in New York
federal court.
This case alleges that persons who invested through the Tel Aviv
stock exchange can assert claims under Israeli securities law that
will follow the liability principles of Sections 10(b) and 20(a) of
the U.S. Securities Exchange Act. The plaintiff does not provide an
estimate of class damages.
In 2019, the court granted two requests by Perrigo to stay the
proceedings pending the resolution of proceedings in the United
States. Perrigo filed a further request for a stay in February
2020, and the court granted the stay indefinitely.
The plaintiff filed a motion to lift the stay then later agreed
that the case should remain stayed through February 2021.
In late February 2021, Perrigo filed a motion to extend the stay to
mid-May 2021, and plaintiff later agreed to the request. The court
extended the stay to mid-May 2021. The court later extended the
stay.
Defendants provided an update to the court by August 8, and the
court requested plaintiff's views by August 29, 2021.
Perrigo said, "We intend to defend the lawsuit vigorously."
Perrigo Company plc, a healthcare company, manufactures and
supplies over-the-counter (OTC) healthcare products, infant
formulas, branded OTC products, and generic pharmaceutical
products. The company operates through Consumer Healthcare
Americas, Consumer Healthcare International, and Prescription
Pharmaceuticals segments. Perrigo Company plc was founded in 1887
and is headquartered in Dublin, Ireland.
PERRIGO CO: Bids for Summary Judgment in Roofers' Suit Pending
--------------------------------------------------------------
Perrigo Company plc said in its Form 10-Q Report filed with the
Securities and Exchange Commission on August 11, 2021, for the
quarterly period ended July 3, 2021, that the motions for summary
judgment in Roofers' Pension Fund v. Papa, et al., is pending.
On May 18, 2016, a shareholder filed a securities case against the
company and its former CEO, Joseph Papa, in the U.S. District Court
for the District of New Jersey (Roofers' Pension Fund v. Papa, et
al.).
The plaintiff purported to represent a class of shareholders for
the period from April 21, 2015 through May 11, 2016, inclusive.
The original complaint alleged violations of Securities Exchange
Act sections 10(b) (and Rule 10b5) and 14(e) against both
defendants and 20(a) control person liability against Mr. Papa.
In general, the allegations concerned the actions taken by us and
the former executive to defend against the unsolicited takeover bid
by Mylan in the period from April 21, 2015 through November 13,
2015. The plaintiff also alleged that the defendants provided
inadequate disclosure concerning alleged integration problems
related to the Omega acquisition in the period from April 21, 2015
through May 11, 2016.
On July 19, 2016, a different shareholder filed a securities class
action against the company and its former CEO, Joseph Papa, also in
the District of New Jersey (Wilson v. Papa, et al.).
The plaintiff purported to represent a class of persons who sold
put options on our shares between April 21, 2015 and May 11, 2016.
In general, the allegations and the claims were the same as those
made in the original complaint filed in the Roofers' Pension Fund
case described above. On December 8, 2016, the court consolidated
the Roofers' Pension Fund case and the Wilson case under the
Roofers' Pension Fund case number.
In February 2017, the court selected the lead plaintiffs for the
consolidated case and the lead counsel to the putative class.
In March 2017, the court entered a scheduling order.
On June 21, 2017, the court-appointed lead plaintiffs filed an
amended complaint that superseded the original complaints in the
Roofers' Pension Fund case and the Wilson case. In the amended
complaint, the lead plaintiffs seek to represent three classes of
shareholders: (i) shareholders who purchased shares during the
period from April 21, 2015 through May 3, 2017 on the U.S.
exchanges; (ii) shareholders who purchased shares during the same
period on the Tel Aviv exchange; and (iii) shareholders who owned
shares on November 12, 2015 and held such stock through at least
8:00 a.m. on November 13, 2015 (the final day of the Mylan tender
offer) regardless of whether the shareholders tendered their
shares.
The amended complaint names as defendants the company and 11
current or former directors and officers of Perrigo (Mses. Judy
Brown, Laurie Brlas, Jacqualyn Fouse, Ellen Hoffing, and Messrs.
Joe Papa, Marc Coucke, Gary Cohen, Michael Jandernoa, Gerald
Kunkle, Herman Morris, and Donal O'Connor).
The amended complaint alleges violations of Securities Exchange Act
sections 10(b) (and Rule 10b‑5) and 14(e) against all defendants
and 20(a) control person liability against the 11 individuals. In
general, the allegations concern the actions taken by us and the
former executives to defend against the unsolicited takeover bid by
Mylan in the period from April 21, 2015 through November 13, 2015
and the allegedly inadequate disclosure throughout the entire class
period related to purported integration problems related to the
Omega acquisition, alleges incorrect reporting of organic growth at
the Company and at Omega, alleges price-fixing activities with
respect to six generic prescription pharmaceuticals, and alleges
improper accounting for the Tysabri(R) royalty stream. The amended
complaint does not include an estimate of damages.
During 2017, the defendants filed motions to dismiss, which the
plaintiffs opposed. On July 27, 2018, the court issued an opinion
and order granting the defendants' motions to dismiss in part and
denying the motions to dismiss in part.
The court dismissed without prejudice defendants Laurie Brlas,
Jacqualyn Fouse, Ellen Hoffing, Gary Cohen, Michael Jandernoa,
Gerald Kunkle, Herman Morris, Donal O'Connor, and Marc Coucke. The
court also dismissed without prejudice claims arising from the
Tysabri(R) accounting issue described above and claims alleging
incorrect disclosure of organic growth described above. The
defendants who were not dismissed are Perrigo Company plc, Joe
Papa, and Judy Brown.
The claims (described above) that were not dismissed relate to the
integration issues regarding the Omega acquisition, the defense
against the Mylan tender offer, and the alleged price-fixing
activities with respect to six generic prescription
pharmaceuticals.
The defendants who remain in the case (the Company, Mr. Papa, and
Ms. Brown) have filed answers denying liability, and the discovery
stage of litigation began in late 2018.
Discovery in the class action ended on January 31, 2021.
In early April 2021, the defendants filed various post-discovery
motions, including summary judgment motions; the briefing of which
was completed in early July 2021. The motions are now before the
court.
Perrigo said, "We intend to defend the lawsuit vigorously."
Perrigo Company plc, a healthcare company, manufactures and
supplies over-the-counter (OTC) healthcare products, infant
formulas, branded OTC products, and generic pharmaceutical
products. The company operates through Consumer Healthcare
Americas, Consumer Healthcare International, and Prescription
Pharmaceuticals segments. Perrigo Company plc was founded in 1887
and is headquartered in Dublin, Ireland.
PERRIGO CO: Clobetasol Price-Fixing Related Suits Underway
----------------------------------------------------------
Perrigo Company plc said in its Form 10-Q Report filed with the
Securities and Exchange Commission on August 11, 2021, for the
quarterly period ended July 3, 2021, that the company continues to
defend class action suits alleging "single drug" conspiracies
involving Clobetasol gel, Desonide, and Econazole.
The company has been named as a co-defendant with certain other
generic pharmaceutical manufacturers in a number of class actions
alleging single-product conspiracies to fix or raise the prices of
certain drugs and/or allocate customers for those products
starting, in some instances, as early as June 2013.
The class actions were filed on behalf of putative classes of (a)
direct purchasers, (b) end payors, and (c) indirect resellers. The
products in question are Clobetasol gel, Desonide, and Econazole.
The court denied motions to dismiss each of the complaints alleging
"single drug" conspiracies involving Perrigo, and the cases are
proceeding in discovery.
As noted, the Clobetasol cases have been designated to proceed on a
more expedited schedule than the other cases. That schedule has not
yet been set.
Perrigo Company plc, a healthcare company, manufactures and
supplies over-the-counter (OTC) healthcare products, infant
formulas, branded OTC products, and generic pharmaceutical
products. The company operates through Consumer Healthcare
Americas, Consumer Healthcare International, and Prescription
Pharmaceuticals segments. Perrigo Company plc was founded in 1887
and is headquartered in Dublin, Ireland.
PERRIGO CO: Litigation Over Contaminated Ranitidine Ongoing
-----------------------------------------------------------
Perrigo Company plc said in its Form 10-Q Report filed with the
Securities and Exchange Commission on August 11, 2021, for the
quarterly period ended July 3, 2021, that the company continues to
defend a consolidated consumer class action suit related to
ranitidine.
After regulatory bodies announced worldwide that ranitidine may
potentially contain N-nitrosodimethylamine ("NDMA"), a known
environmental contaminant, the Company promptly began testing its
externally-sourced ranitidine API and ranitidine-based products. On
October 8, 2019, the Company halted shipments of the product based
upon preliminary results and on October 23, 2019, the Company made
the decision to conduct a voluntary retail market withdrawal.
In February 2020, the resulting actions involving Zantac(R) and
other ranitidine products were transferred for coordinated pretrial
proceedings to a Multi-District Litigation (In re
Zantac(R)/Ranitidine Products Liability Litigation MDL No. 2924) in
the U.S. District Court for the Southern District of Florida.
After the Company successfully moved to dismiss the first set of
Master Complaints in the MDL, it now includes three: 1) an Amended
Master Personal Injury Complaint; 2) a Consolidated Amended
Consumer Economic Loss Class Action Complaint; and 3) a
Consolidated Medical Monitoring Class Action Complaint. All three
name the Company. Plaintiffs appealed one of the original Master
Complaints, the Third-Party Payor Complaint, and two individual
plaintiffs appealed their individual personal injury claims on
limited grounds. The Company is not named in the appeals.
As of July 13, 2021, the Company has been named in two hundred
forty-five (245) of the MDL's consolidated personal injury lawsuits
tied to various federal courts alleging that plaintiffs developed
various types of cancers or are placed at higher risk of developing
cancer as a result of ingesting products containing ranitidine.
The Company is named in these lawsuits with manufacturers of the
national brand Zantac(R) and other manufacturers of ranitidine
products, as well as distributors, repackagers, and/or retailers.
Plaintiffs seek compensatory and punitive damages, and in some
instances seek applicable remedies under state consumer protection
laws.
The Company has also been named in a Complaint brought by the New
Mexico Attorney General based on the following theories: violation
of a New Mexico public nuisance statute, NMSA 30-8-1 to -14; common
law nuisance; and negligence and gross negligence.
The Company is named in this lawsuit with manufacturers of the
national brand Zantac(R) and other manufacturers of ranitidine
products and/or retailers. Brand name manufactures named in the
lawsuit also face claims under the state's Unfair Practices & False
Advertising acts.
Likewise, the Company has also been named in a Complaint brought by
the Mayor and City Council of Baltimore, along with manufacturers
of the national brand Zantac(R) and other manufacturers of
ranitidine products and/or retailers.
This action brings claims under the Maryland Consumer Protection
Act against the brand name defendants only, as well as public
nuisance and negligence for the remaining defendants.
The Company was originally able to consolidate the New Mexico and
Baltimore Actions to the MDL, however both actions were recently
remanded to state court. The Company plans to file motions to
dismiss in the New Mexico and Baltimore actions in the near future,
and will continue to vigorously defend each of these lawsuits.
Some of the Company's retailer customers are seeking indemnity from
the Company for a portion of their defense costs and liability
relating to these cases.
On June 30, 2021, the Court dismissed all claims against the retail
and distributor defendants with prejudice, thereby reducing the
Company's potential for exposure and liability related to possible
indemnification.
On July 8, 2021, the Court dismissed all claims against the Company
with prejudice.
The Company believes an appeal of these dismissal orders to the
U.S. Court of Appeals for the 11th Circuit is likely, as are
possible state level claims related to the theories advanced in the
MDL litigation.
The Company will continue to vigorously defend each of these
lawsuits.
Perrigo Company plc, a healthcare company, manufactures and
supplies over-the-counter (OTC) healthcare products, infant
formulas, branded OTC products, and generic pharmaceutical
products. The company operates through Consumer Healthcare
Americas, Consumer Healthcare International, and Prescription
Pharmaceuticals segments. Perrigo Company plc was founded in 1887
and is headquartered in Dublin, Ireland.
PERRIGO CO: Overarching Conspiracy Related Suits Ongoing
--------------------------------------------------------
Perrigo Company plc said in its Form 10-Q Report filed with the
Securities and Exchange Commission on August 11, 2021, for the
quarterly period ended July 3, 2021, that the company continues to
defend putative class action suits related to overarching
conspiracy.
The same three putative classes, including (a) direct purchasers,
(b) end payors, and (c) indirect resellers, have filed two sets of
class action complaints alleging that Perrigo and other
manufacturers (and some individuals) entered into an "overarching
conspiracy" that involved allocating customers, rigging bids and
raising, maintaining, and fixing prices for various products.
Each class brings claims for violations of Sections 1 and 3 of the
Sherman Antitrust Act as well as several state antitrust and
consumer protection statutes.
Filed in June 2018, and later amended in December 2018 (with
respect to direct purchasers) and April 2019 (with respect to end
payors and indirect resellers), the first set of "overarching
conspiracy" class actions include allegations against Perrigo and
approximately 27 other manufacturers involving 135 drugs with
allegations dating back to March 2011.
The allegations against Perrigo concern only two formulations
(cream and ointment) of one of the products at issue, Nystatin. The
court denied motions to dismiss the first set of "overarching
conspiracy" class actions, and they are proceeding in discovery.
None of these cases are included in the group of cases on a more
expedited schedule pursuant to the court's July 14, 2020 order.
In December 2019, both the end payor and indirect reseller class
plaintiffs filed a second set of "overarching conspiracy" class
actions against Perrigo, dozens of other manufacturers of generic
prescription pharmaceuticals, and certain individuals dating back
to July 2009 (end payors) or January 2010 (indirect resellers).
The direct purchaser plaintiffs filed their second round
overarching conspiracy complaint in February 2020 with claims
dating back to July 2009. On March 11, 2020, the indirect reseller
plaintiffs filed a motion to amend their second round December 2019
complaint, and that motion was granted.
On September 4, 2020, and December 15, 2020, the end payor
plaintiffs amended their second round complaint. On October 21,
2020, the direct purchaser plaintiffs amended their second round
complaint.
On December 15, 2020, the indirect reseller plaintiffs filed
another complaint adding allegations for additional drugs that
mirror the other class plaintiffs' claims.
This second set of overarching complaints allege conspiracies
relating to the sale of various products that are not at issue in
the earlier-filed overarching conspiracy class actions, the
majority of which Perrigo neither makes nor sells. The amended
indirect reseller complaint alleges that Perrigo conspired in
connection with its sales of Betamethasone Dipropionate lotion,
Imiquimod cream, Desonide cream and ointment, and Hydrocortisone
Valerate cream.
The December 2020 indirect reseller complaint alleges that Perrigo
conspired in connection with its sales of Adapalene, Ammonium
Lactate, Bromocriptine Mesylate, Calcipotriene, Calcipotriene
Betamethasone Dipropionate, Ciclopirox, Clindamycin Phosphate,
Erythromycin, Fluticasone Propionate, Halobetasol Proprionate,
Hydrocortisone Acetate, Methazolamide, Mometasone Furoate,
Prochlorperazine Maleate, Promethazine HCL, Tacrolimus, and
Triamcinolone Acetonide.
The amended end payor complaint alleges that Perrigo conspired in
connection with its sale of the following drugs: Adapalene,
Ammonium Lactate, Betamethasone Dipropionate, Bromocriptine
Mesylate, Calcipotriene Betamethasone Dipropionate, Ciclopirox,
Clindamycin Phosphate, Erythromycin, Fenofibrate, Fluocinonide,
Fluticasone Propionate, Halobetasol Proprionate, Hydrocortisone
Acetate, Hydrocortisone Valerate, Imiquimod, Methazolamide,
Mometasone Furoate, Permethrin, Prochlorperazine Maleate,
Promethazine HCL, Tacrolimus, and Triamcinolone Acetonide.
The amended direct purchaser complaint alleges that Perrigo
conspired in connection with its sale of the following drugs:
Adapalene, Ammonium Lactate, Betamethasone Dipropionate,
Bromocriptine Mesylate, Ciclopirox, Clindamycin Phosphate,
Fenofibrate, Fluocinonide, Halobetasol Proprionate, Hydrocortisone
Valerate, Methazolamide, Permethrin, Prochlorperazine Maleate,
Promethazine HCL, Tacrolimus, and Triamcinolone Acetonide.
Perrigo has not yet responded to the second set of overarching
conspiracy complaints, and responses are currently stayed.
Perrigo Company plc, a healthcare company, manufactures and
supplies over-the-counter (OTC) healthcare products, infant
formulas, branded OTC products, and generic pharmaceutical
products. The company operates through Consumer Healthcare
Americas, Consumer Healthcare International, and Prescription
Pharmaceuticals segments. Perrigo Company plc was founded in 1887
and is headquartered in Dublin, Ireland.
PHENIXFIN CORP: Proposed Order of Atty's Fees Payment OK'd in Kahn
------------------------------------------------------------------
PhenixFIN Corporation said in its Form 10-Q Report filed with the
Securities and Exchange Commission on August 11, 2021, for the
quarterly period ended June 30, 2021, that the Court of Chancery of
the State of Delaware granted the proposed order of payment of
attorneys' fees and expenses in the purported class action lawsuit,
captioned Kahn v. PhenixFIN Corporation, et al.
On or about January 28, 2021, a purported class action lawsuit,
captioned Kahn v. PhenixFIN Corporation, et al., was filed against
the Company and its directors in the Court of Chancery of the State
of Delaware.
Plaintiffs allege that a provision in the Company's bylaws, which
provides that directors may be removed from office for cause by the
affirmative vote of 75% of capital stock entitled to vote, is
inconsistent with provisions of the Delaware General Corporate Law,
which plaintiffs allege would permit removal for cause by a simple
majority of capital stock entitled to vote.
The plaintiffs seek a declaration that the bylaw provision is
invalid and to enjoin the defendants from enforcing it, as well as
a reasonable allowance of attorneys' fee.
On February 10, 2021, the Board of the Company approved an
amendment to the Company's Bylaws, which, among other things,
allows for the removal of directors for cause by affirmative vote
of the holders of a majority of the capital stock entitled to vote
at an election of directors.
On May 5, 2021, plaintiffs filed a notice and proposed order
voluntarily dismissing the Action as moot and providing that
jurisdiction would be retained solely to resolve an anticipated
application for attorneys' fees and expenses, which proposed order
was granted by the Court of Chancery on May 5, 2021.
The parties to the Action subsequently agreed to a payment by
PhenixFIN to plaintiffs' counsel of $25,000, in full satisfaction
of their claim for attorneys' fees, expenses and costs in
connection with the Action.
The Court of Chancery has not been asked to review or approve, and
will pass no judgment on, this payment. The Court of Chancery
granted the proposed order on July 28, 2021.
PhenixFIN Corporation is a non-diversified closed-end management
investment company that operates as a business development company.
The Company's investment objective is to generate current income
and capital appreciation, primarily through investments in
privately negotiated debt and equity securities of middle market
companies.
PHENIXFIN CORP: Solomon Revised Agreement Granted Final Approval
----------------------------------------------------------------
PhenixFIN Corporation said in its Form 10-Q Report filed with the
Securities and Exchange Commission on August 11, 2021, for the
quarterly period ended June 30, 2021, that the court in Royce
Solomon, Jodi Belleci, Michael Littlejohn, and Giulianna Lomaglio
v. American Web Loan, Inc., AWL, Inc., Mark Curry, MacFarlane
Group, Inc., Sol Partners, Medley Opportunity Fund, II, LP, Medley
LLC, Medley Capital Corporation, Medley Management, Inc., Medley
Group, LLC, Brook Taube, Seth Taube, DHI Computing Service, Inc.,
Middlemarch Partners, and John Does 1-100, granted Final Approval
of the Revised Settlement Agreement and entered the Final
Judgment.
Medley LLC, the Company, Medley Opportunity Fund II LP, Medley
Management, Inc., Medley Group, LLC, Brook Taube, and Seth Taube
were named as defendants, along with other various parties, in a
putative class action lawsuit captioned as Royce Solomon, Jodi
Belleci, Michael Littlejohn, and Giulianna Lomaglio v. American Web
Loan, Inc., AWL, Inc., Mark Curry, MacFarlane Group, Inc., Sol
Partners, Medley Opportunity Fund, II, LP, Medley LLC, Medley
Capital Corporation, Medley Management, Inc., Medley Group, LLC,
Brook Taube, Seth Taube, DHI Computing Service, Inc., Middlemarch
Partners, and John Does 1-100, filed on December 15, 2017, amended
on March 9, 2018, and amended a second time on February 15, 2019,
in the United States District Court for the Eastern District of
Virginia, Newport News Division, as Case No. 4:17-cv-145.
Medley Opportunity Fund II LP and the Company were also named as
defendants, along with various other parties, in a putative class
action lawsuit captioned George Hengle and Lula Williams v. Mark
Curry, American Web Loan, Inc., AWL, Inc., Red Stone, Inc., Medley
Opportunity Fund II LP, and Medley Capital Corporation, filed
February 13, 2018, in the United States District Court, Eastern
District of Virginia, Richmond Division, as Case No. 3:18-cv-100
("Class Action 2").
Medley Opportunity Fund II LP and the Company were also named as
defendants, along with various other parties, in a putative class
action lawsuit captioned John Glatt, Sonji Grandy, Heather Ball,
Dashawn Hunter, and Michael Corona v. Mark Curry, American Web
Loan, Inc., AWL, Inc., Red Stone, Inc., Medley Opportunity Fund II
LP, and Medley Capital Corporation, filed August 9, 2018 in the
United States District Court, Eastern District of Virginia, Newport
News Division, as Case No. 4:18-cv-101 ("Class Action 3") (together
with Class Action 1 and Class Action 2, the "Virginia Class
Actions").
Medley Opportunity Fund II LP was also named as a defendant, along
with various other parties, in a putative class action lawsuit
captioned Christina Williams and Michael Stermel v. Red Stone, Inc.
(as successor in interest to MacFarlane Group, Inc.), Medley
Opportunity Fund II LP, Mark Curry, Brian McGowan, Vincent Ney, and
John Doe entities and individuals, filed June 29, 2018 and amended
July 26, 2018, in the United States District Court for the Eastern
District of Pennsylvania, as Case No. 2:18-cv-2747 (the
"Pennsylvania Class Action").
The Company and Medley Opportunity Fund II, LP were also named as
defendants, along with various other parties, in a putative class
action lawsuit captioned Charles McDaniel v. American Web Loan,
Inc., AWL, Inc., Mark Curry, Medley Capital Corporation, Medley
Opportunity Fund II, LP, and Red Stone, Inc., filed on August 7,
2020 and amended on October 22, 2020 in the First Judicial Circuit
of Ohio County, West Virginia, Case No. 20-C-169, which case was
then removed to the United States District Court for the Northern
District of West Virginia on December 15, 2020 (the "West Virginia
Class Action" and together with the Virginia Class Actions and the
Pennsylvania Class Action, the "Class Action Complaints").
The plaintiffs in the Class Action Complaints filed their putative
class actions alleging claims under the Racketeer Influenced and
Corrupt Organizations Act, and various other claims arising out of
the alleged payday lending activities of American Web Loan. The
claims against Medley Opportunity Fund II LP, Medley LLC, the
Company, Medley Management, Inc., Medley Group, LLC, Brook Taube,
and Seth Taube (in Class Action 1, as amended); Medley Opportunity
Fund II LP and Medley Capital Corporation (in Class Action 2 and
Class Action 3); Medley Opportunity Fund II LP (in the Pennsylvania
Class Action); and Medley Opportunity Fund II LP and the Company
(in the West Virginia Class Action), allege that those defendants
in each respective action exercised control over, or improperly
derived income from, and/or obtained an improper interest in,
American Web Loan's payday lending activities as a result of a loan
to American Web Loan. The loan was made by Medley Opportunity Fund
II LP in 2011.
By orders dated August 7, 2018 and September 17, 2018, the Court
presiding over the Virginia Class Actions consolidated those cases
for all purposes. On October 12, 2018, Plaintiffs in Class Action 3
filed a notice of voluntary dismissal of all claims, and on October
29, 2018, Plaintiffs in Class Action 2 filed a notice of voluntary
dismissal of all claims.
On October 30, 2020, Plaintiffs in the Pennsylvania Class Action
filed a Stipulation of Dismissal of all claims against all
defendants with prejudice, and on November 2, 2020, the Court
presiding over the Pennsylvania Class Action ordered Plaintiffs'
claims dismissed with prejudice.
On January 29, 2021, Plaintiff in the West Virginia Class Action
filed a motion to stay proceedings to permit revision and final
approval of a revised settlement agreement in Class Action 1, and
also on January 29, 2021, the Court presiding over the West
Virginia Class Action granted that motion and stayed the West
Virginia Class Action.
On April 16, 2020, the parties to Class Action 1 reached a
settlement reflected in a Settlement Agreement (the "Settlement
Agreement") that has been publicly filed in Class Action 1 (ECF No.
414-1). Among other things, upon satisfaction of the conditions
specified in the Settlement Agreement and upon the Effective Date,
the Settlement Agreement (capitalized terms not otherwise defined
have the meaning set forth in the Settlement Agreement): (1)
requires Plaintiffs to seek certification of a nationwide
settlement class of all persons in the United States to whom
American Web Loan lent money from February 10, 2010 through a
future date on which the Court may enter a Preliminary Approval
Order as to the Settlement Agreement (which certification
Defendants have agreed not to oppose); (2) requires American Web
Loan, and only American Web Loan, to pay Monetary Consideration of
$65,000,000 (none of Medley Opportunity Fund II LP, Medley LLC,
Medley Capital Corporation, Medley Management, Inc., Medley Group,
LLC, Brook Taube, or Seth Taube are paying any Monetary
Consideration pursuant to the Settlement Agreement); (3) requires
American Web Loan, and only American Web Loan, to cancel (as a
disputed debt) and release all claims that relate to or arise out
of the loans in its Collection Portfolio, which is valued at
Seventy-Six Million Dollars ($76,000,000) and comprised of loans to
more than 39,000 borrowers (none of Medley Opportunity Fund II LP,
Medley LLC, Medley Capital Corporation, Medley Management, Inc.,
Medley Group, LLC, Brook Taube, or Seth Taube have any interest in
any of the loans that are being cancelled); (4) requires American
Web Loan and Curry to provide certain Non-Monetary Benefits (none
of Medley Opportunity Fund II LP, Medley LLC, Medley Capital
Corporation, Medley Management, Inc., Medley Group, LLC, Brook
Taube, or Seth Taube are conferring any Non-Monetary Benefits
pursuant to the Settlement Agreement); (5) fully, finally, and
forever releases Medley Opportunity Fund II LP, Medley LLC, Medley
Capital Corporation, Medley Management, Inc., Medley Group, LLC,
Brook Taube, and Seth Taube from any and all claims, causes of
action, suits, obligations, debts, demands, agreements, promises,
liabilities, damages, losses, controversies, costs, expenses and
attorneys' fees of any nature whatsoever, whether arising under
federal law, state law, common law or equity, tribal law, foreign
law, territorial law, contract, rule, regulation, any regulatory
promulgation (including, but not limited to, any opinion or
declaratory ruling), or any other law, including Unknown Claims,
whether suspected or unsuspected, asserted or unasserted, foreseen
or unforeseen, actual or contingent, liquidated or unliquidated,
punitive or compensatory, as of the date of the Final Fairness
Approval Order and Judgment, that relate to or arise out of loans
made by and/or in the name of AWL (including loans issued in the
name of American Web Loan, Inc. or Clear Creek Lending) as of the
date of entry of the Preliminary Approval Order (with the exception
of claims to enforce the Settlement or the Judgment); (6) provides
for a mutual general release between Medley Opportunity Fund II LP,
Medley LLC, Medley Capital Corporation, Medley Management, Inc.,
Medley Group, LLC, Brook Taube, and Seth Taube on the one hand, and
American Web Loan and Curry on the other hand; and (7) provides
that, as of the future Effective Date, none of Medley Opportunity
Fund II LP, Medley LLC, Medley Capital Corporation, Medley
Management, Inc., Medley Group, LLC, Brook Taube, and Seth Taube
shall (i) be entitled to indemnification from AWL Defendants (as
defined in the Settlement Agreement) or (ii) bring any claim
against any Released Parties, including American Web Loan and
Curry, that relate to or arise out of loans made by and/or in the
name of AWL (including loans issued in the name of American Web
Loan, Inc. or Clear Creek Lending) as of the date of entry of the
Preliminary Approval Order (with the exception of claims to enforce
the Settlement or the Judgment).
On March 31, 2021, the parties to Class Action 1 and the Objectors
filed a revised settlement agreement publicly in Class Action 1
(ECF No. 483-1) (the "Revised Settlement Agreement").
As relevant to Medley LLC, the Company, Medley Opportunity Fund II
LP, Medley Management, Inc., Medley Group, LLC, Brook Taube, and
Seth Taube, the terms of the Revised Settlement Agreement do not
differ from the terms of the original Settlement Agreement. On
April 7, 2021, the Court presiding over Class Action 1 held a
hearing on Plaintiffs' motion for preliminary approval of the
Revised Settlement Agreement and entered an order granting
preliminary approval of the revised settlement (the "Preliminary
Approval Order").
Pursuant to the Preliminary Approval Order, the Court held a Final
Approval Hearing relating to the Revised Settlement Agreement on
July 9, 2021, and following the hearing, granted Final Approval of
the Revised Settlement Agreement and entered the Final Judgment. It
is anticipated that the effective date of the Revised Settlement
Agreement will occur by August 31, 2021.
PhenixFIN Corporation is a non-diversified closed-end management
investment company that operates as a business development company.
The Company's investment objective is to generate current income
and capital appreciation, primarily through investments in
privately negotiated debt and equity securities of middle market
companies.
PHILADELPHIA, PA: Williams May File 2nd Amended Suit, Court Says
----------------------------------------------------------------
In the case, JAHMAL WILLIAMS, Plaintiff v. CITY OF PHILADELPHIA, et
al., Defendants, Civil Action No. 21-CV-640 (E.D. Pa.), Judge
Mitchell S. Goldberg of the U.S. District Court for the Eastern
District of Pennsylvania dismissed the Plaintiff's amended
complaint in its entirety for failure to state a claim with leave
to file a second amended complaint.
Background
Plaintiff Williams, who is proceeding pro se, brings the civil
action challenging the constitutionality of the conditions of his
confinement while a pretrial detainee at Curran-Fromhold
Correctional Facility ("CFCF") in Philadelphia, Pennsylvania.
Williams initiated the action by filing a Complaint on Feb. 12,
2021. He did not, however, pay the fees necessary to commence a
civil action in the Court, or file an application to proceed in
forma pauperis along with a certified copy of his prisoner account
statement. Judge Goldberg granted Williams several opportunities to
correct the initial deficiencies in his filings, and Williams
eventually filed a Motion to Proceed In Forma Pauperis, as well as
a prisoner account statement.
On May 11, 2021, Williams, along with several others incarcerated
at CFCF, filed an Amended Complaint seeking to add numerous
plaintiffs and defendants to the matter. The Amended Complaint was
signed by Williams, as well as Justin Davis, Da'Sean Ford, Bill
Dawkins, Kasheem Cryon, Nadi Hatchett, Zunir Walker, Luis Leon,
Segers, Ronald P. White, Brian Schofftstall, Nadeer Baker, William
Castillo, Luis Gonzalez, Travis Kelly, and Shawn Fairy. As of the
filing of the Amended Complaint, none of the new plaintiffs paid
the fees necessary to commence a civil action, or filed an
application to proceed in forma pauperis along with a certified
copy of his prisoner account statement. As a result, by Order dated
May 18, 2021, Judge Goldberg directed the Clerk of Court to amend
the docket to include the additional plaintiffs and defendants, and
granted the new Plaintiffs additional time to submit the necessary
documentation to proceed as Plaintiffs in the case.
Two of the additional plaintiffs, Da'Sean Ford and Zunir Walker,
subsequently submitted their own pleadings under the present Civil
Action Number 21-640. Tahjie Davilla, who was not one of the
additional plaintiffs listed in the Amended Complaint, also filed
an Amended Complaint. Because Ford, Walker, and Davilla each filed
an Amended Complaint on their own behalf that alleged independent
claims, by Order dated July 6, 2021, Judge Goldberg severed their
filings into new matters to be addressed separately. Additionally,
the individuals who were added to the docket as named Plaintiffs in
accordance with the prior Order who failed to either pay the fees
or file the paperwork necessary to commence a civil action, were
dismissed without prejudice as named Plaintiffs.
In the Amended Complaint, Williams alleges that he brought the case
because CFCF failed to comply with the District Court's Orders in
Remick v. City of Philadelphia, Civ. A. No. 20-1959,6 and
repeatedly describes the present matter as a class action lawsuit.
He purports to speak on behalf of all pretrial detainees housed at
CFCF. Nevertheless, the Judge addresses the claims raised in the
Amended Complaint as they pertain to Williams alone.
The Amended Complaint, which is hand-written, and is, at times
difficult to understand, names the following Defendants: (1) City
of Philadelphia, (2) U.S. Attorney General, (3) U.S. Secretary of
United States, (4) Pennsylvania Attorney General, (5) Pennsylvania
Secretary of State, (6) Mayor, (7) Governor, (8) President, (9)
Institution(s) Commissioner Warden, (10) Superintendent/Custodian,
(11) Deputy Warden, (12) Sergent(s), (13) Lieutenant(s), (14)
Correctional Officer(s), (15) Curran-Fromhold Correctional
Institution, and (16) Corizon Medical Department and Mental Health
Department.
Mr. Williams generally alleges that his rights secured by the
Sixth, Eighth, Thirteenth, and Fourteenth Amendments to the United
States Constitution have been violated while incarcerated at CFCF.
Without further explanation, he also cites "statutory violations"
including, RICO, conspiracy, tax evasion, theft, kidnapping,
"enticing slavery", "various Internal Revenue Codes", "Fair Debt
Collection Practices", and "Securities Exchange Commission
Provisions."
Mr. Williams alleges that CFCF is understaffed such that inmates
are "being denied a basic shower, phone call, visitation, legal
access to attorneys libraries to provide a defense for pro-se
litigants civil and criminal, housing units are inadequately kept
unclean and unreasonably deemed safe." He further asserts that he
and other inmates have "even been denied medical attention covid
related and any unrelated medical needs," and have been provided
inadequate mental health care due to inadequate staffing.
Mr. Williams also alleges due process violations in that "those of
them, such as himself, who dare question the infrastructure of the
skeleton of procedural structure get held accountable for the
officials lack of accountability." He claims that "so far as
disciplinary action there isn't even a system in place the accused
is called a lockin with no hearing, no write up, no nothing in
reference of due process of law." While Williams does not specify
the relief sought, it appears that he seeks monetary damages.
Discussion
The vehicle by which federal constitutional claims may be brought
in federal court is Section 1983 of Title 42 of the United States
Code, which provides in part: Every person who, under color of any
statute, ordinance, regulation, custom, or usage, of any State or
Territory or the District of Columbia, subjects, or causes to be
subjected, any citizen of the United States or other person within
the jurisdiction thereof to the deprivation of any rights,
privileges, or immunities secured by the Constitution and laws,
will be liable to the party injured in an action at law, suit in
equity, or other proper proceeding for redress.
To state a claim under Section 1983, a plaintiff must allege the
violation of a right secured by the Constitution and laws of the
United States, and must show that the alleged deprivation was
committed by a person acting under color of state law.
Judge Goldberg holds that it is clear that Williams is attempting
to bring claims pursuant to 42 U.S.C. Section 1983 alleging
violations of his constitutional rights. However, his claims are
articulated in a generalized, conclusory manner. Thus, it is
difficult to determine the factual contours of what happened, when
it happened, and who was involved in a given set of events.
Liberally construing Williams' Amended Complaint as he must do, the
Judge understands the Amended Complaint as presenting claims
regarding the conditions of his confinement, for denial of access
to the courts, for deliberate indifference to medical needs, and
due process violations. Despite that liberal construction, the
Judge holds that Williams has not alleged a plausible basis for a
claim against any Defendant.
First, Judge Goldberg finds that Williams' Amended Complaint does
not provide any reasonable basis, whether factual or legal, that
any named Defendant is responsible for the conditions at CFCF or
any alleged constitutional violation. The factual allegations set
forth in the Amended Complaint are sparse and generalized. That is,
Williams has articulated no allegation against any individual
Defendant. He simply does not allege any factual details about the
involvement of any Defendant in the alleged constitutional
violations. Consequently, Williams has failed to present plausible
claims against any Defendant. The Judge notes that Williams'
Amended Complaint is deficient for other reasons as well.
Second, Williams does not allege that any of these Defendants, with
deliberate indifference to the consequences, maintained a policy,
practice or custom that resulted in the conduct that allegedly
violated Williams' constitutional rights, nor does he allege that
these Defendants participated in the alleged improper conduct.
Accordingly, Williams has failed to state plausible claims of
supervisory liability against these Defendants.
Third, the Section 1983 claims against CFCF are not plausible
because CFCF is not a "person" under Section 1983. Similarly, the
US Court of Appeals for the Third Circuit has made clear that a
prison medical department is not a "person" for purposes of Section
1983 liability. Therefore, neither CFCF, nor Corizon Medical
Department and Mental Health Department, is a proper defendant in
the case under Section 1983.
Fourth, although Williams named the City of Philadelphia and Mayor
Kenney as Defendants in the action, the Amended Complaint is devoid
of any allegations about acts or omissions of the City or Mayor
Kenney. Because Williams did not allege any facts suggesting that a
constitutional violation occurred as a result of an approved
municipal policy or governmental practice or custom, he has not
alleged a plausible basis for a Monell claim against the City or
Mayor Kenney.
Fifth, assuming arguendo that Williams properly alleged personal
involvement against appropriate Defendant, Williams' allegations
nonetheless are conclusory such that he has not pled plausible
constitutional claims. For example, Williams alleges that he has
"been denied medical attention covid related and any unrelated
medical needs," and has been provided inadequate mental health care
due to inadequate staffing. Because Williams' Amended Complaint
does not provide any factual allegations pertaining to the nature
of the alleged medical need or the purported deliberate
indifference, it does not support a plausible Fourteenth Amendment
claim.
Sixth, because Williams' Amended Complaint does not provide any
factual allegations pertaining to the nature or length of the
alleged deprivation, it does not support a plausible Fourteenth
Amendment claim under the Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) pleading standard. Accordingly, Williams has not stated a
constitutional claim based on the denial of showers.
Seventh, Williams has failed to allege other than in conclusory
terms that he has been denied phone calls and visitation.
Therefore, he has again failed to state plausible claims for
constitutional violations under the Iqbal standard. In the case,
however, Williams' conclusory statement regarding the lack of
cleanliness at CFCF does not sufficiently state a plausible claim.
Eighth, Williams has failed to plausibly allege any actual injury
as a result of the Defendants' conduct that could equate to a
denial of access to the courts. Additionally, Williams has not
alleged what underlying nonfrivolous claims he was unable to pursue
as a result of any Defendant's actions. Judge Goldberg dismisses
these claims to the extent they are alleged.
Ninth, Judge Goldberg holds that Williams' allegations are
insufficient to state a plausible due process claim. Given the
absence of any meaningful description of events that gave rise to a
disciplinary action, Williams' general allegation that procedures
were not followed does not support a plausible inference that he
did not receive process he was due.
Conclusion
For the foregoing reasons, Judge Goldberg dismisses Williams'
Amended Complaint in its entirety for failure to state a claim,
pursuant to 28 U.S.C. Section 1915(e)(2)(B)(ii). While Williams has
failed to state a plausible claim at this time, the Jduge is not
prepared to find that Williams, if granted the opportunity, cannot
state a plausible claim for relief against the appropriate and
relevant defendants. Accordingly, Williams' Amended Complaint will
be dismissed without prejudice, and Williams will be granted leave
to file a second amended complaint within 30 days if he wishes to
proceed with the case. Williams' filing docketed as a "Motion to
Add Parties," in which Williams asks to add additional prisoners as
Plaintiffs in the case will be denied because Williams may not
raise claims on behalf of others.
Since Williams has failed to allege a basis for a constitutional
claim on his own behalf, it follows that he has not alleged any
basis for proceeding as a class action. In any event, Williams, as
a non-attorney, may not represent a class of inmates.
An appropriate Order follows.
A full-text copy of the Court's Aug. 27, 2021 Memorandum is
available at https://tinyurl.com/5ehh72b5 from Leagle.com.
PHILIPS RS: Bleakney Consumer Suit Removed to W.D. Pennsylvania
---------------------------------------------------------------
The case styled ROXANNE BLEAKNEY and CARL BLEAKNEY, individually
and on behalf of all others similarly situated v. PHILIPS RS NORTH
AMERICA LLC, Case No. GD-21-009037, was removed from the Court of
Common Pleas of Allegheny County, Pennsylvania to the U.S. District
Court for the Western District of Pennsylvania on September 3,
2021.
The Clerk of Court for the Western District of Pennsylvania
assigned Case No. 2:21-cv-01188-MRH to the proceeding.
The case arises from the Defendant's alleged violation of the
Pennsylvania's consumer protection statute, as well as breach of
warranty, fraud, negligent misrepresentation, unjust enrichment,
and medical monitoring claims for manufacturing, distributing, and
marketing defective Continuous Positive Airway Pressure, Bi-Level
Positive Airway Pressure, and mechanical ventilator prescription
medical devices.
Philips RS North America LLC is a company that manufactures and
markets medical devices with its principal place of business
located at 6501 Living Place, Pittsburgh, Pennsylvania. [BN]
The Defendant is represented by:
John P. Lavelle, Jr., Esq.
MORGAN, LEWIS & BOCKIUS LLP
1701 Market Street
Philadelphia, PA 19103-2921
Telephone: (215) 963-5000
E-mail: john.lavelle@morganlewis.com
PLAINVILLE GAMING: Katopodis Sues Over Unfair and Deceptive Acts
----------------------------------------------------------------
Gregory Katopodis, Alan Casso, David Carlson, Kim Joyal, and Edward
Petersen on behalf of themselves and all others similarly situated
v. Plainville Gaming and Redevelopment, LLC d/b/a Plainridge Park
Casino, Case No. 21-1937D (Mass. Commonwealth, Suffolk, Aug. 26,
2021), is brought against the Defendant to redress the unfair and
deceptive acts and practices of the Defendant by wilfully and
knowingly refusing to send its rewards cardholders notice of their
gambling wins and losses in a manner that satisfies its obligations
under Massachusetts laws. As a result, those patrons-the proposed
class-have never received the information they are entitled to
receive and have been deprived of the ability to make informed
decisions about their gambling habits. Plainridge's conduct has
deliberately thwarted the legislative and regulatory framework that
was designed to protect the patrons of Commonwealth casinos from
becoming compulsive gamblers.
According to the complaint, Plainridge regularly encourages
tens-of-thousands of hopeful gamblers to spend their hard-earned
money at its establishment in Plainville, Massachusetts. It does so
by sending electronic and/or physical promotional material that
advertises events like "mychoice mayhem," a "MYSTERY BONUS PLUS
$20K GIVEAWAY" and "$40 Free SlotPlay." With huge, colorful
graphics and catchy phrases like "at home spins, lead to mychoice
wins!", one cannot help but feel an urge to visit Plainridge.
Plainridge does not, however, offer those same patrons the vital
information that Massachusetts lawmakers require it to provide in
the manner that the lawmakers require. Rather, Plainridge, at best,
buries underneath its promotional advertisements, in a font
appearing to be half the size of that used to tell the U.S. Post
Office that Plainridge pre-paid for postage, the following line:
"Log on to MyChoice.com to view your offers and obtain your monthly
win/loss statement." Other rewards cardholders receive no written
notice at all.
The Plaintiffs and each member of the proposed class have been
injured by Plainridge's unfair and deceptive practices because they
(i) never received the required win/loss statements; (ii) never
received legally sufficient notice that the required win/loss data
was available, where it was located, and how they could access it;
and (iii) were deprived of the opportunity to make an informed
decision about their gambling habits at Plainridge, says the
complaint.
The Plaintiffs are members of Plainridge's rewards-card program.
Plainville Gaming and Redevelopment, LLC is a Delaware limited
liability company with a principal place of business in PlainvilJe,
Massachusetts.[BN]
The Plaintiffs are represented by:
Jonathon D. Friedmann, Esq.
Eric J. Walz, Esq.
RUDOLPH FIREDMANN LLP
92 State Street
Boston, MA 02109
Phone: 617-723-7700
Fax: 617-227-0313
Email: jfriedmann@rflawyers.com
ewalz@rflawyers.com
POWER PARAGON: Burns Labor Suit Removed to C.D. California
----------------------------------------------------------
The case styled PATRICK BURNS, individually and on behalf of all
others similarly situated v. POWER PARAGON, INC. and DOES 1 through
50, inclusive, Case No. 30-2021-01197621-CU-OE-CXC, was removed
from the Superior Court of California in and for the County of
Orange to the U.S. District Court for the Central District of
California on September 3, 2021.
The Clerk of Court for the Central District of California assigned
Case No. 8:21-cv-01452-JVS-JDE to the proceeding.
The case arises from the Defendant's alleged violations of the
California Labor Code and the California Business and Professions
Code including failure to pay overtime, straight time and minimum
wages; failure to indemnify necessary expenditures; failure to
provide meal periods; failure to provide rest periods; inaccurate
and non-compliant wage statements; and unlawful, unfair and
fraudulent business practices.
Power Paragon, Inc. is a company that provides engineering,
development, manufacture, and integration of power conversion and
distribution systems, headquartered in Florida. [BN]
The Defendant is represented by:
Rafael G. Nendel-Flores, Esq.
Claire E. Morton, Esq.
CLARK HILL LLP
1055 West Seventh Street, Suite 2400
Los Angeles, CA 90017
Telephone: (213) 891-9100
Facsimile: (213) 488-1178
E-mail: RNendelflores@ClarkHill.com
CMorton@ClarkHill.com
RA MEDICAL: Hearing on Bid to Dismiss Derr Suit Set for Oct. 12
---------------------------------------------------------------
RA Medical Systems said in its Form 10-Q Report filed with the
Securities and Exchange Commission on August 11, 2021, for the
quarterly period ended June 30, 2021, that the hearing on the
motion to dismiss the putative securities class action complaint
captioned Derr v. Ra Medical Systems, Inc., et. al., is scheduled
for October 12, 2021.
On June 7, 2019, a putative securities class action complaint
captioned Derr v. Ra Medical Systems, Inc., et. al., (Civil Action
no. 19CV1079 LAB NLS) was filed in the United States District Court
for the Southern District of California against the company,
certain current and former officers and directors, and certain
underwriters of the company's initial public offering (IPO).
Following the appointment of a lead plaintiff and the filing of a
subsequent amended complaint, the lawsuit alleges that the
defendants made material misstatements or omissions in our
registration statement in violation of Sections 11 and 15 of the
Securities Act of 1933 and between September 27, 2018 and November
27, 2019, inclusive, in violation of Sections 10(b) and 20(a) of
the Securities Exchange Act of 1934.
On March 11, 2020, lead plaintiffs voluntarily dismissed the
underwriter defendants without prejudice.
On March 13, 2020, defendants filed a motion to dismiss the amended
complaint. On March 24, 2021, the court issued an order granting
defendants' motion to dismiss claims under the Securities Act in
full and certain claims under the Exchange Act and denying
defendants' motion to dismiss certain Exchange Act claims.
Plaintiffs filed their second amended complaint on April 19, 2021,
realleging the Securities Act claims and certain of the previously
dismissed Exchange Act claims. On June 10, 2021, defendants moved
to dismiss the second amended complaint.
A hearing on the motion to dismiss is scheduled for October 12,
2021.
RA Medical said, "Management intends to vigorously defend against
this lawsuit. At this time, we cannot predict how a court or jury
will rule on the merits of the claims and/or the scope of the
potential loss in the event of an adverse outcome. Should we
ultimately be found liable, the liability could have a material
adverse effect on our financial condition and our results of
operations for the period or periods in which it is incurred."
RA Medical Systems, Inc. designs, develops, and produces medical
devices. The Company offers excimer lasers for the treatment of
dermatologic and cardiovascular diseases. RA Medical Systems serves
patients in the United States. The company is based in Carlsbad,
California.
REPRO MED: Plaintiff Files Notice of Voluntary Dismissal
--------------------------------------------------------
Repro Med Systems, Inc. said in its Form 10-Q Report filed with the
Securities and Exchange Commission on August 11, 2021, for the
quarterly period ended June 30, 2021, that on July 12, 2021, the
lead plaintiff in a putative class action filed a notice of
voluntary dismissal without prejudice of the claims in the
previously disclosed putative class action lawsuit filed in the
United States District Court for the Southern District of New York
against the Company and its Chief Financial Officer and former
Chief Executive Officer, alleging they made materially false and/or
misleading statements, as well as failed to disclose material
adverse facts about the Company's business, operations and
prospects, in the Company's earnings communications and Form 10-Q
filed during the period August 4, 2020 and January 25, 2021.
Repro Med Systems, Inc. designs, manufactures and markets
proprietary portable and innovative medical devices primarily for
the ambulatory infusion market as governed by the United States
Food and Drug Administration quality and regulatory system and
international standards for quality system management. The company
is based in Chester, New York.
REVCO SOLUTIONS: Stroman Files FDCPA Suit in D. New Jersey
----------------------------------------------------------
A class action lawsuit has been filed against Revco Solutions, Inc.
The case is styled as Rashon Stroman, individually and on behalf
all others similarly situated v. Revco Solutions, Inc., Case No.
2:21-cv-16565-CCC-LDW (D.N.J., Sept. 7, 2021).
The lawsuit is brought over alleged violation of the Fair Debt
Collection Practices Act.
Revco Solutions -- https://revcosolutions.com/ -- was founded in
1979 and is the region's premier provider of fast, hassle-free,
professional debt recovery.[BN]
The Plaintiff is represented by:
Todd D. Muhlstock, Esq.
THE MUHLSTOCK LAW FIRM, P.C.
100 Garden City Plaza, Suite 500
Garden City, NY 11530
Phone: (516) 974-9400
Fax: (516) 345-1635
Email: todd@muhlstocklaw.com
ROANOKE, VA: Firefighters Seek Unpaid Overtime Pay
--------------------------------------------------
Kyle Inman, James D. Reynolds, Jr. and Nicholas J. Sosik, on behalf
of themselves and all others similarly situated, Plaintiffs, v.
City Of Roanoke, Virginia, Case No. 21-cv-00462, (W.D. Va.,
September 1, 2021), seeks declaratory relief, injunctive relief and
to recover unpaid overtime compensation and liquidated damages
under the Fair Labor Standards Act.
Defendant is a political subdivision of the State of Virginia and
manages the primary law enforcement agency comprising police
officers and various clerical, administrative and management
personnel. Inman and Reynolds are fire protection employees.
Throughout their employment, they claim to be not paid overtime
compensation for the difference in the regularly scheduled work
week, or, generally, one hundred sixty hours in a twenty-eight day
period and the 171 hour federal maximum, or 80 and 86 over a 14 day
period. [BN]
Plaintiffs are represented by:
Thomas E. Strelka, Esq.
L. Leigh R. Strelka, Esq.
N. Winston West, IV, Esq.
Brittany M. Haddox, Esq.
Monica L. Mroz, Esq.
STRELKA LAW OFFICE, PC
Warehouse Row
119 Norfolk Avenue, S.W., Suite 330
Roanoke, VA 24011
Tel: (540) 283-0802
Email: thomas@strelkalaw.com
leigh@strelkalaw.com
winston@strelkalaw.com
brittany@strelkalaw.com
monica@strelkalaw.com
SAINT ELIZABETH: Beckerich Sues Over Forced COVID-19 Vaccination
----------------------------------------------------------------
CHRISTY BECKERICH, MEGHAN BENTLE, MORGAN BISHOP, CHRISTA BOWDLER,
REBECCA BRAUNWART, EILEEN BRINKMAN, KIM BROWN, ANDREA BURG, STACEY
CALDWELL, JENNIFER CARLTON, VERONICA CRUMP, CARRISA DAUGHERTY,
NICHOLE DOYLE, DEANNA DUDLEY, ANDREA HALKIOTIS, APRIL HOSKINS,
MALIZA JACKSON, TIFFANY JUSTICE, HEATHER KING, RONALD KLOTZ, SUSAN
KLOTZ, AMY LEMKER, TIFFANY MANNING, ELIZABETH MOZEA, LISA MULDOON,
GARY MYERS, JOY PATRICK, ANGELA PERIN, KELLY REYNOLDS, VALERIE
ROSE, SENECA SHELDON, MONICA SMITH, CHRISTINA STAFFORD, DEELA
STURM, PHILLIP VAUGHT, MAJA VICKERS, GRETA WESTERMEYER, ISABELLE
WIEHE, MELISSA WILLS, WILLIAM WRING, RICHARD BRIGGS, NATALIE
CUNNINGHAM, EMILY DOWDEN, JAMIE DOWNTON, KIMBERLY DUTZE, DANIELLE
FORMAN, SHAUNA FREIBERGER, SHANNON FREY, MELINDA GRIESMANN, SHELLEY
HAAS, JOYCE LIFE-ISHMAEL, HOPE LOVE, CHERYL MACKLIN, TRACY MALLERY,
DAWN MALONE, KAREN MANTER, SHANNON OSTERFELD, JENNIFER PHILLIPS,
MICHAEL SAAL, SUZANNE THOMAS, BRENDALEE TRAVIS, TRICIA WILLIAMS,
THOMAS WRIGHT, BRITTANY YOUNG, MARK YOUNG, TRACEY DURROUGH, TAMMY
HARDIN, SHANNON HEEG, EMILY HEFFNER, SHELLY KELLER, JENNIFER
KOENIG, TONYA LANHAM, OLIVIA LIGGETT, JULIE MYRICK, JENNY NEISER,
VALERIE PATRICK, SHAWNEICE PERNELL, KEA PETERS, MICHELLE PIERCE,
STEPHANIE PORTER, LARA REEVES, SUSAN STREICHER, SANDRA SUMME,
LATONYA WILLAMS, JAMES ALLEN, DARRIS BOHMAN, DAWN BOWMAN, MICHAEL
BROCK, RONNIE BROWN, ELISSA BUONPANE, HEATHER BYNUM, ARIEL COLWELL,
CHASTITY DONK, DANIELLE FORMAN, JANET FRITSCH, JOSEPH GREER, ANGELA
HICKS, ABIGAIL HILTON, PAULA JUMP, MICHELLE MORATH, ANDREA MORENO,
VICTORIA MORSE, DESIREE OCHS, TODD PETERS, STEPHANIE PHELPS, SARAH
REED, RAENNA ROTH, BRIAN SCHMADEL, SAMANTHA SHANNON, KIMBERLY
SHROUT, JENNIFER SIDERS, MARCIE STAHL, SHANNON STORM-SIEG, DONNA
TIDBALL, JESSICA WALKER, TAYLOR WILSON, REBEKKAH WINKLER, GLENDA
ANDERSON, GLENN BEIER, CAROLINE CIEMINSKI, DONNA CRASE, ALAINA
DAVIS, LESLIE DAVIS, TAMRA ELDERS, GREG ELLINGTON, RON GERDES,
REBECCA GERREIN, HANNAH HEILMAN, TONI IACOBUCCI, EMILY MADONIS,
LINDSAY MCFARLAND, JENNIFER MILLER, AUSTIN MONTANEZ, JILL PABST,
AMANDA PRESTON-CLAPPER, HEATHER RAPP, KIM RUEDEBUSCH, CONSTANCE
SHEPARD, ABIGAIL STEDMAN, TAYLOR STEWART, MARY TOENNIS, KIM
WOOLUMS, BRITTANY ALDRIDGE, MATTHEW BARKIMER, RACHEL CAMPBELL,
JAMES COOPER, GEMMA DEPPERSCHMIDT, JOSEPH GREER, SHELLEY HAAS,
ANDREA HARB, DUSTIE HOGUE, VANESSA JOHNSON, TERESA LYNCH, JEANIE
MILLS, RONDA MONTANO, CRYSTAL NAPIER, CHRISTINE O'NEILL, DAVEE
PENNINGTON, ANDREA SELLARS, NANCY VANPELT, and MINDY WIEDERHOLD,
individually and on behalf of all others similarly situated,
Plaintiffs v. SAINT ELIZABETH MEDICAL CENTER, INC.; SUMMIT MEDICAL
GROUP, INC. d/b/a ST. ELIZABETH PHYSICIANS; CINCINNATI CHILDREN'S
HOSPITAL MEDICAL CENTER; CHRIST HOSPITAL; THE CHRIST HOSPITAL
PHYSICIANS, LLC; TRIHEALTH, INC. d/b/a TRIHEALTH PHYSICIAN PARTNERS
and GROUP HEALTH PHYSICIAN PARTNERS; BETHESDA HOSPITAL, INC.;
BETHESDA NORTH; GOOD SAMARITAN HOSPITAL; UC HEALTH, LLC; UNIVERSITY
OF CINCINNATI MEDICAL CENTER, LLC; UNIVERSITY OF CINCINNATI
PHYSICIANS COMPANY, LLC d/b/a UC HEALTH PHYSICIANS; MERCY HEALTH
CINCINNATI, LLC; BON SECOURS MERCY HEALTH INC.; MERCY
HEALTH-ANDERSON HOSPITAL LLC; MERCY HEALTH WEST HOSPITALS; MERCY
HEALTH PHYSICIANS CINCINNATI LLC; and THE JEWISH HOSPITAL, LLC,
Defendants, Case No. 1:21-cv-00576-TSB (S.D. Ohio, September 3,
2021) is a class action against the Defendants for violations of
the Rehabilitation Act and the Americans With Disabilities Act,
Title VII of the Civil Rights Act of 1964, Section 1 of the Sherman
Act, the Right to Refuse Unwanted and Medically Unnecessary Medical
Care, the Unconstitutional Conditions Doctrine and the Fourteenth
Amendment's Right to Due Process, and the Supremacy Clause, and for
promissory estoppel, criminal coercion, fraud in the concealment
and constructive fraud, tortious interference with personal
healthcare, fraudulent inducement, civil and criminal conspiracy,
civil liability for criminal conduct, at-will employment
doctrine/public policy exception, breach of fiduciary duty and
negligence, duress, declaratory and injunctive relief, and
intentional infliction of emotional distress.
The case arises from the Defendants' policy of requiring their
employees to receive the first shot of Pfizer Covid-19 vaccine by
September 1, 2021 and the second shot by October 1, 2021. As a
result of the policy, the Plaintiffs are being pressured to take a
vaccine that has not yet been finally approved and that they do not
wish to take or face immediate termination and/or other adverse
consequences to their employment, careers, and reputations, says
the suit.
Saint Elizabeth Medical Center, Inc. is a healthcare services
provider in Edgewood, Kentucky.
Summit Medical Group, Inc., d/b/a St. Elizabeth Physicians, is a
healthcare services provider in Florence, Kentucky.
Cincinnati Children's Hospital Medical Center is a healthcare
services provider in Cincinnati, Ohio.
Christ Hospital is a healthcare services provider in Cincinnati,
Ohio.
The Christ Hospital Physicians, LLC is a healthcare services
provider in Cincinnati, Ohio.
Trihealth, Inc., d/b/a Trihealth Physician Partners and Group
Health Physician Partners, is a healthcare services provider in
Cincinnati, Ohio.
Bethesda Hospital, Inc. is a healthcare services provider in
Columbus, Ohio.
Bethesda North is a healthcare services provider in Cincinnati,
Ohio.
Good Samaritan Hospital is a healthcare services provider in
Cincinnati, Ohio.
UC Health, LLC is a healthcare services provider in Cincinnati,
Ohio.
University of Cincinnati Medical Center, LLC is a healthcare
services provider in Cincinnati, Ohio.
University of Cincinnati Physicians Company, LLC, d/b/a UC Health
Physicians, is a healthcare services provider in Cincinnati, Ohio.
Mercy Health Cincinnati, LLC is a healthcare services provider in
Cincinnati, Ohio.
Bon Secours Mercy Health Inc. is a healthcare services provider in
Marriottsville, Maryland.
Mercy Health-Anderson Hospital LLC is a healthcare services
provider in Cincinnati, Ohio.
Mercy Health West Hospitals is a healthcare services provider in
Cincinnati, Ohio.
Mercy Health Physicians Cincinnati LLC is a healthcare services
provider in Cincinnati, Ohio.
The Jewish Hospital, LLC is a healthcare services provider in
Cincinnati, Ohio. [BN]
The Plaintiffs are represented by:
Glenn D. Feagan, Esq.
DETERS LAW
5247 Madison Pike
Independence, KY 41051
Telephone: (859) 363-1900
E-mail: gfeagan@feaganlaw.com
SANDRIDGE MISSISSIPPIAN: D&V Bid to File Amended Complaint Pending
------------------------------------------------------------------
SandRidge Mississippian Trust I said in its Form 10-Q Report filed
with the Securities and Exchange Commission on August 13, 2021, for
the quarterly period ended June 30, 2021, that Duane & Virginia
Lanier Trust's motion to file a second amended complaint against
the Trust is still pending.
On June 9, 2015, the Duane & Virginia Lanier Trust, on behalf of
itself and all other similarly situated unitholders of the Trust,
filed a putative class action complaint in the U.S. District Court
for the Western District of Oklahoma against the Trust, SandRidge
and certain current and former executive officers of SandRidge,
among other defendants. The complaint, which was amended on
November 11, 2016 (adding Ivan Nibur, Lawrence Ross, Jase Luna, and
Mathew Willenbuncher as lead plaintiffs) and supplemented on May 1,
2017, asserts a variety of federal securities claims on behalf of a
putative class of (a) purchasers of common units of the Trust in or
traceable to its initial public offering on or about April 7, 2011,
and (b) purchasers of common units of SandRidge Mississippian Trust
II (“SDR”) in or traceable to its initial public offering on or
about April 17, 2012. The claims are based on allegations that
SandRidge and certain of its current and former officers and
directors, among other defendants, including the Trust, are
responsible for making false and misleading statements, and
omitting material information, concerning a variety of subjects,
including oil and gas reserves. The plaintiffs seek class
certification, an order rescinding the Trust's initial public
offering and an unspecified amount of damages, plus interest,
attorneys' fees and costs. As a result of its reorganization in
bankruptcy in 2016, SandRidge is a nominal defendant only.
On August 30, 2017, the Court entered an order dismissing the
plaintiffs' claims under Sections 11, 12(a)(2), and 15 of the
Securities Act of 1933.
As a result of the Court's order, the only claims remaining in the
litigation are the plaintiffs' claims under Sections 10(b) and
20(a) of the Securities Exchange Act of 1934 and Rule 10b-5
promulgated thereunder. In addition, because of the Court's order,
the only remaining defendants in the litigation are the Trust,
James D. Bennett, Matthew K. Grubb, Tom L. Ward, and SandRidge as a
nominal defendant only.
On September 11, 2017, the Court entered a subsequent order
granting in part and denying in part the remaining defendants'
motions to dismiss the Exchange Act Claims and finding that the
plaintiffs may pursue certain of the Exchange Act Claims against
the respective remaining defendants. In November 2017, the
plaintiffs' counsel informed counsel to the Trust that,
notwithstanding the dismissal of all claims against SDR, the
remaining claims in the litigation against the Trust are being
asserted not only by purchasers of common units of the Trust, but
also by purchasers of common units of SDR.
On January 19, 2018, the Trust filed a Motion for Partial Judgment
on the Pleadings as to any claims against it brought by purchasers
of common units of SDR, arguing that non-purchasers of common units
in the Trust lack statutory standing to pursue claims against the
Trust. On January 18, 2019, the Court granted the Trust's motion
dismissing claims brought by purchasers of common units of SDR.
On July 2, 2018, defendants filed a motion for partial judgment on
the pleadings, arguing that all claims asserted on behalf of the
members of the putative class are barred by the statute of
limitations. On March 26, 2019, the Court denied the motion without
prejudice should discovery reveal a basis for again challenging the
timeliness of plaintiffs' claims.
Discovery closed on June 19, 2019. Following a hearing on class
certification on September 6, 2019, the motion for class
certification remains pending.
On April 2, 2020, the Trust filed a Motion for Summary Judgment as
to Plaintiffs' remaining claims against the Trust, arguing that
there is no evidence of requisite intent by the Trust, and further,
that the alleged acts and omissions of other defendants are not
properly attributable to the Trust. That motion remains pending.
On August 5, 2020, the Plaintiffs filed a motion for leave to file
a second amended complaint against the Trust. That motion remains
pending.
No further updates were provided in the Company's SEC report.
SandRidge Mississippian Trust I is a statutory trust formed under
the Delaware Statutory Trust Act pursuant to a trust agreement, as
amended and restated, by and among SandRidge Energy, Inc., as
Trustor, The Bank of New York Mellon Trust Company, N.A., as
Trustee, and The Corporation Trust Company, as Delaware Trustee.
SCIENTIFIC GAMES: Tonkawa Tribe Suit Transferred to N.D. Illinois
-----------------------------------------------------------------
In the case, TONKAWA TRIBE OF INDIANS OF OKLAHOMA, et al.,
Plaintiffs v. SCIENTIFIC GAMES CORPORATION, et al., Defendants.
ALFRED T. GIULIANO as Liquidation Trustee for RIH Acquisitions NJ,
LLC d/b/a Magnolia House Casino d/b/a The Atlantic Club Casino
Hotel and Ranchos Club Casino, Inc., Intervenor, Case No.
2:20-cv-01637-GMN-BNW (D. Nev.), Judge Gloria M. Navarro of the
U.S. District Court for the District of Nevada grants the
Intervenor's Motion to Intervene and Motion to Transfer.
Background
The case arises from Defendant Scientific Games Corporation's,
Defendant Bally Technologies', and Defendant Bally Gaming's alleged
monopolization of the relevant market for automatic card shuffling
machines for regulated casinos in the United States. Defendant
Scientific Games Corp. ("SGC") manufactures automatic card
shufflers, which are sold and leased to regulated casinos in the
United States. Defendant SGC acquired Defendant Bally Technologies
in 2015. At that time, Defendant Bally Technologies owned both
non-party SHFL Entertainment, Inc. ("SHFL") and Defendant Bally
Gaming.
SHFL owns two patents -- the '982 patent and the '935 patent --
based on its model of an automatic card shuffler named "Deckmate
1." The Deckmate 1 is installed directly into the gaming table with
the upper surface sitting flush with the surface of the table.
According to SHFL, the Deckmate 1 uniquely uses an elevator to
shuffle the cards under the gaming table. The elevator has a cover
that takes the cards from the dealer, randomly shuffles the cards,
and moves automatically to return the cards to the dealer when the
cards are completely randomized. In 2003, the United States Patent
and Trademark Office ("PTO") issued the '982 patent and '935
patent.
Between 2002 and 2013, SHFL initiated various patent infringement
lawsuits against other competitors in the card shuffling relevant
market, including CARD LLC, VendingData, Taiwan Fulgent, and TCS
John Huxley America, Inc. ("TCS"). The Plaintiffs allege that these
lawsuits often resulted in SHFL's eventual acquisition of the
competitors, which reduced meaningful competition in the card
shuffling relevant market.
Specifically, in October 2012, SHFL filed suit against Digideal
Corp. in the District of Nevada, alleging that Digideal's
prototype, the DigiShuffle, infringed SHFL's '982 and '935 patents.
In January 2014, Digideal initiated re-examination proceedings
before the PTO on claims 1-3 and 42-46 of the '982 patent; and
claims 1, 2, 9-11, and 14 of the '935 patent. As to the '982
patent, Digideal challenged claims 1-3 and 42-46, arguing that the
Block '044 patent issued in March 2002 utilized the same technology
alleged to be innovative in the Deckmate 1. The PTO agreed and
initially rejected the claims based on other pieces of prior art.
SHFL, in response, amended its claims to state that the Deckmate 1
must be mounted flush with the gaming table surface -- a feature
not taught by the Block patent. The PTO ultimately confirmed that
the claims in the '982 patent were patentable and reissued a
reexamination certificate in July 2015. Similarly, as to the '935
patent, the PTO initially rejected some of the claims in light of
the Block '044 patent and Roblejo '122 patent. Upon SHFL's
cancellation of the reexamined claims, the PTO issued a
reexamination certificate for the '935 patent. The Plaintiffs
allege that SHFL failed to disclose relevant pieces of prior art
concerning the Nicoletti Shuffler, the Luciano Prototype, the
Roblejo Prototype, and the Block patent during the re-examination
proceedings and underlying prosecution.
In April 2015, Shuffle Tech International, LLC ("Shuffle Tech")
filed the first monopolization suit against SHFL in the Northern
District of Illinois. Shuffle Tech, a potential competitor, alleged
that SHFL violated Section 2 of the Sherman Act by fraudulently
procuring two patents from the PTO and engaging in sham litigation
to eliminate competitors in the relevant market. In August 2018, a
jury returned a verdict against Defendants and SHFL for $315
million to compensate Shuffle Tech for their lost profits
materially caused by the Defendants' monopolization of the card
shuffling relevant market.
Multiple similar lawsuits, including the present action, emerged
after the Shuffle Tech Litigation. On March 15, 2019, TCS filed
suit against Defendants in the Northern District of Illinois -- TCS
John Huxley America, Inc., et al. v. Scientific Games Corp. et al.,
Case No. 19-cv-1846 (N.D. Ill.) ("TCS Litigation"). TCS alleges
that the Defendants monopolized the market for automatic card
shufflers for regulated casinos through: (a) the Defendants'
wrongful enforcement of fraudulently procured patents from the PTO;
an d (b) Defendants' sham litigation against TCS and other
competitors.
On Sept. 4, 2020, the Intervenor filed his own lawsuit against
Defendants in the Northern District of Illinois -- Alfred T.
Guiliano v. Scientific Games Corp. et al., Case No. 1:20-cv-05262
(N.D. Ill.) ("Guiliano Litigation"). The Intervenor, a direct
purchaser of automatic card shufflers, alleges that the Defendants'
monopolization and exclusion of competitors forced direct
purchasers to pay "supracompetitive prices" in violation of
Sections Two and Three of the Sherman Act. On Sept. 8, 2020,
Rancho's Club Casino, Inc. d/b/a Magnolia House Casino filed a
nearly identical class action in the Northern District of Illinois
on behalf of direct purchasers of automated card shufflers.
Rancho's Club Casino, Inc. v. Scientific Games Corp. et al., Case
No. 1:20-cv-05295 (N.D. Ill.) ("Rancho's Club Casino Litigation").
The Plaintiffs, in the instant action, similarly filed the class
action on behalf of "direct purchasers" of commercial card
shufflers in the United States. The Plaintiffs allege that the
Defendants monopolized the United States card shuffling market in
violation of Section Two of the Sherman Act, 15 U.S.C. Section 2.
Additionally, the Plaintiffs claim that the Defendants are
precluded from relitigating the issues of monopolization from the
Shuffle Tech Litigation. They accordingly request compensatory
damages, attorneys' fees and costs, and pre- and post-judgment
interest on all sums awarded.
On Sept. 15, 2020, the Intervenor sought to intervene for the
limited purpose of requesting transfer to the Northern District of
Illinois.
Discussion
A. Motion to Intervene
The Intervenor argues that the Court may permit intervention
because: (1) Intervenor does not need to demonstrate an independent
basis for jurisdiction; (2) the Intervenor shares a common question
of law or fact with the main action; and (3) its motion is timely.
In response, the Plaintiffs argue that Intervenor must demonstrate
an independent basis for jurisdiction and fails to do so in its
Motion. They further assert that intervention will unduly delay or
prejudice the original parties.
Because the Plaintiffs do not dispute that the Intervenor timely
filed its Motion, Judge Navarro limits her discussion to the
remaining elements: (1) whether the Intervenor has shown an
independent ground for jurisdiction; and (2) whether the Intervenor
shares a common question of law or fact with the instant case.
As to the first requirement, the Judge holds that the Intervenor
does not need to demonstrate an independent basis for jurisdiction
for the Court to allow intervention. The Ninth Circuit in Freedom
from Religion Found., Inc. v. Geithner, 644 F.3d 836 (9th Cir.
2011), explicitly held that "the independent jurisdictional grounds
requirement does not apply to proposed intervenors in
federal-question cases when the proposed intervenor is not raising
new claims." The Intervenor does not seek intervention to raise new
claims, but rather, seeks intervention for the limited purpose of
potentially transferring the case to the Northern District of
Illinois. Thus, the Judge finds that the Intervenor need not
demonstrate an independent ground for jurisdiction.
As to the second requirement, the Judge holds that the Intervenor
demonstrates a common question of law or fact with the instant
case. Rule 24(b) permits the Court to allow anyone to intervene who
"has a claim or defense that shares with the main action a common
question of law or fact." The Judge finds clear questions of law
and fact in common between the Intervenor and the instant case. The
Plaintiffs also fail to contest that Intervenor shares a common
question of law or fact with the instant case. The Judge thus finds
that the Intervenor has met the second prong under Rule 24(b).
As to the discretionary factors, the Judge holds that the
Plaintiffs fail to articulate the undue delay and prejudice to the
parties in this suit. The Plaintiffs conclusively state that the
Intervenor's "involvement alone would greatly complicate the
prosecution of their claims in the action at bar." The Plaintiff,
however, fails to explain the specific delay and prejudice that
would result from allowing Intervenor to enter the lawsuit.
Contrary to the Plaintiff's implication, the Judge says, permitting
intervention for the limited purpose of requesting transfer may
further simplify the cases given the similar class claims and
anticompetitive conduct. Because the Intervenor otherwise meets the
requirements for permissive intervention and she does not find
undue delay or prejudice, the Judge grants the Motion to
Intervene.
B. Motion to Transfer
The Intervenor additionally moves to transfer the case to the
Northern District of Illinois pursuant to the "first-to-file" rule
and 28 U.S.C. Section 1404(a). The Plaintiffs refuse to transfer
the case, arguing that: (1) the Intervenor does not have standing
to transfer; (2) the instant case is the first-filed casino
purchaser action; and (3) the Intervenor cannot show that
transferring is in the interest of justice and fairness under
Section 1404(a).
Because she has already determined that Intervenor may intervene in
the present case, Judge Navarro limits its below discussion to
whether transfer is proper under Section 1404(a). Under Section
1404, "for the convenience of parties and witnesses, in the
interest of justice, a district court may transfer any civil action
to any other district where it might have been brought." The Judge
first analyzes whether the Northern District of Illinois is a
judicial district in which the instant action "might have been
brought."
First, the Judge holds that the Plaintiffs failed to address
whether the suit "might have been brought" in the Northern District
of Illinois. Under Local Rule 7-2, the failure of an opposing party
to file points and authorities in response to any motion, except a
motion under Fed. R. Civ. P. 56 or a motion for attorney's fees,
constitutes a consent to the granting of the motion. Accordingly,
the Judge finds that the Plaintiffs concede this first point.
Second, the Judge examines whether transfer is in the interest of
justice. In Jones v. GNC Franchising, Inc., 211 F.3d 495, 498 (9th
Cir. 2000) (quoting Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22,
23, 108 S.Ct. 2239, 101 L. Ed. 2d 22 (1988)), multiple convenience
and fairness factors may be weighed to determine whether transfer
would be "in the interest of justice" as required by Section
1404(a), including: (1) the location where the relevant agreements
were negotiated and executed, (2) the state that is most familiar
with the governing law, (3) the plaintiff's choice of forum, (4)
the respective parties' contacts with the forum, (5) the contacts
relating to the plaintiff's cause of action in the chosen forum,
(6) the differences in the costs of litigation in the two forums,
(7) the availability of compulsory process to compel attendance of
unwilling non-party witnesses, and (8) the ease of access to
sources of proof.
The Judge finds that the Jones factors suggest that litigating the
instant case in the Northern District of Illinois would serve the
interests of justice under Section 1404. Because the instant action
could have been initially filed in the Northern District of
Illinois and transfer is fair and convenient for the parties, the
Judge accordingly grants the Plaintiff's Motion to Transfer.
Conclusion
Judge Navarro grants the Intervenor's Motion to Intervene and
Motion to Transfer.
A full-text copy of the Court's Aug. 27, 2021 Order is available at
https://tinyurl.com/ey44tpfz from Leagle.com.
SENIOR GENERAL: Fails to Provide Proper Wages, Gomez Suit Says
--------------------------------------------------------------
LUIS GOMEZ, individually and on behalf of others similarly
situated, Plaintiff v. SENIOR GENERAL CONSTRUCTION CORP. (D/B/A
SENIOR GENERAL CONSTRUCTION), CLAUDIA PATRICIA CHUVA, LUIS GUEVARA,
and FLAVIO GUEVARA, Defendants, Case No. 1:21-cv-04925-LDH-PK
(E.D.N.Y., Sep. 1, 2021) is brought by the Plaintiff for unpaid
minimum and overtime wages pursuant to the Fair Labor Standards
Act, and for violations of the New York Labor Law and the "spread
of hours" and overtime wage orders of the New York Commissioner of
Labor including applicable liquidated damages, interest, attorneys'
fees and costs.
Mr. Gomez was employed by the Defendants at Senior General
Construction from approximately November 2018 until July 2, 2021.
The Defendants own, operate, or control a construction company,
located at 87-77 96th Street in Woodhaven, New York under the name
"Senior General Construction."[BN]
The Plaintiff is represented by:
Michael Faillace, Esq.
MICHAEL FAILLACE & ASSOCIATES, P.C.
60 East 42nd Street, Suite 4510
New York, NY 10165
Telephone: (212) 317-1200
Facsimile: (212) 317-1620
SFC GLOBAL: Illinois Court Narrows Claims in Jackson ICFA Suit
--------------------------------------------------------------
In the case, JAMIE JACKSON AND TRENTON McDONALD, individually and
on behalf of all other similarly situated current Illinois
citizens, Plaintiffs v. SFC GLOBAL SUPPLY CHAIN, INC., Defendant,
Case No. 3:20-cv-1072-DWD (S.D. Ill.), Judge David W. Dugan of the
U.S. District Court for the Southern District of Illinois:
(i) granted in part and denied in part SFC's Motion to
Dismiss; and
(ii) denied its Motion to Stay Discovery.
Background
The Plaintiffs allege that they purchased SFC's Red Baron frozen
pizzas from grocery stores on more than a dozen occasions from 2017
to 2020. The pizza boxes included two labels: "PRESERVATIVE FREE
CRUST" and "NO ARTIFICIAL FLAVORS." The Plaintiffs claim that they
relied on these labels when they decided to purchase the pizzas.
However, they allege that the pizzas do contain preservatives and
artificial flavors and the labels therefore violate the Illinois
Consumer Fraud and Deceptive Business Practices Act, 815 ILCS
505/1, et seq. ("ICFA").
The Court dismissed the Plaintiffs' initial complaint but without
prejudice as to their ICFA and unjust enrichment claims. The
Plaintiffs subsequently filed an amended complaint, and SFC
responded with the motions now before the Court.
Discussion
Count I of the Plaintiffs' amended complaint is based upon ICFA,
which is "a regulatory and remedial statute intended to protect
consumers against fraud, unfair methods of competition, and other
unfair and deceptive business practices." To prevail on a claim
under ICFA, "a plaintiff must plead and prove that the defendant
committed a deceptive or unfair act with the intent that others
rely on the deception, that the act occurred in the course of trade
or commerce, and that it caused actual damages."
SFC argues that the Plaintiffs have not plead a plausible claim
under either the "deceptive" or "unfair" prongs of ICFA. First, SFC
argues that the Plaintiffs have not shown that the labels were
deceptive. The Plaintiffs assert that these ingredients are
"commercially-manufactured and highly processed, and which contain
monosodium glutamate (or MSG) as a by-product of the protein
processing," but otherwise do not explain why they are artificial.
Judge Dugan holds that the Plaintiffs have not plausibly shown that
the NO ARTIFICIAL FLAVORS label is false. He says, the Plaintiffs
have not alleged any facts suggesting that modified food starch and
hydrolyzed soy and corn proteins are derived from artificial
sources. And merely asserting that they are highly processed does
not provide a plausible claim of artificiality. As SFC points out,
refined cane sugar is highly processed, but no reasonable consumer
would consider sugar to be an artificial flavor.
The Judge also holds that the Plaintiffs have alleged enough facts
to show that the pizzas contained ingredients that function solely
as preservatives. Thus, they have sufficiently pled that the
"PRESERVATIVE FREE CRUST" label is false.
The Judge also finds that the details plead by the Plaintiffs
provide a plausible claim of deception that satisfies the
requirements of Rule 9(b) in the case. He says, the Plaintiff have
alleged facts showing how the labels were deceptive. They also
allege that they were deceived every time they read the labels and
purchased the pizzas on more than a dozen occasions from 2017 to
2020. SFC does not dispute that the pizza boxes included the labels
PRESERVATIVE FREE CRUST and NO ARTIFICIAL FLAVORS.
Second, SFC argues that the Plaintiffs have failed to plead facts
making a plausible claim of "unfair" conduct under ICFA. "Under the
ICFA unfair conduct either (i) offends public policy; (ii) is
immoral, unethical, or oppressive; or (iii) causes substantial
injury to consumers." False advertising alone is an unfair practice
under the ICFA.
Judge Dugan holds that the Plaintiffs have adequately alleged that
the "PRESERVATIVE FREE CRUST" label was a false statement. However,
they have not adequately alleged that the "NO ARTIFICIAL FLAVORS"
label was false because they have not alleged facts showing that
any ingredients were not derived from natural sources. And they
have not plead additional facts showing that the labels were unfair
for other reasons beyond their formulaic claims that the labels
offend public policy and are immoral, unethical, and unscrupulous.
For these reasons, the Plaintiffs have stated a claim for unfair
conduct under ICFA as to the "PRESERVATIVE FREE CRUST" label but
not as to the "NO ARTIFICIAL FLAVORS" label.
SFC also briefly argues that the Plaintiffs' ICFA claim is
time-barred in part because ICFA has a three-year statute of
limitations and the Plaintiffs' proposed class period dates to the
five years preceding the filing of their original petition. As this
argument relates to the class action nature of this case, Judge
Dugan defers this question until it decides the issue of class
certification.
Count II of the Plaintiffs' Complaint is entitled "In the
Alternative, Unjust Enrichment." SFC seeks dismissal arguing that
the Plaintiffs have failed to make plausible allegations of
deception or unfair conduct and that unjust enrichment cannot be
maintained as a separate cause of action. "To state a claim for
unjust enrichment, a plaintiff must allege that the defendant has
unjustly retained a benefit to the plaintiff's detriment, and that
defendant's retention of the benefit violates the fundamental
principles of justice, equity, and good conscience."
Judge Dugan finds that the Plaintiffs allege in Count II that SFC
retains a "benefit that was obtained by the Defendant's fraudulent
and misleading representations about the Pizzas." The
"representations" referred to there are identified throughout the
Plaintiffs' amended complaint. Therefore, the Judge holds that the
Plaintiffs have adequately alleged a plausible claim for unjust
enrichment.
Finally, the Judge took up SFC's motion to stay discovery at the
hearing on August 12. The counsel for the Plaintiffs indicated he
would need some additional discovery to amend any deficiencies the
Court found in the amended complaint. The parties agreed to meet
and confer to reach an agreement regarding additional limited
discovery to be conducted before Plaintiffs file a second amended
complaint. Therefore, the Judge will deny the motion to stay with
leave to refile should the parties be unable to agree on a
discovery plan.
Conclusion
For these reasons, Judge Dugan granted in part and denied in part
the Defendant SFC's motion to dismiss. Count I of the Plaintiffs'
amended complaint is dismissed without prejudice as it relates to
the "NO ARTIFICIAL FLAVORS" label. The Judge denied the Defendant
SFC's motion to stay discovery with leave to refile should the
parties be unable to agree on a plan for discovery to be conducted
before the Plaintiffs file a second amended complaint. The
Plaintiffs will file a second amended complaint by Sept. 15, 2021.
A full-text copy of the Court's Aug. 25, 2021 Memorandum & Order is
available at https://tinyurl.com/3jbc5s2d from Leagle.com.
SIERRA PACIFIC: Smith Files Suit in Cal. Super. Ct.
---------------------------------------------------
A class action lawsuit has been filed against Sierra Pacific
Industries, et al. The case is styled as John Smith, Aaron Fruchey,
on behalf of other members of the general public similarly situated
v. Sierra Pacific Industries, Does 1-100, Case No.
34-2021-00306921-CU-OE-GDS (Cal. Super. Ct., Kern Cty., Aug. 25,
2021).
The case type is stated as "Other Employment - Civil Unlimited."
Sierra Pacific Industries -- https://www.spi-ind.com/ -- is a
third-generation, family owned and operated forest products
company.[BN]
The Plaintiffs are represented by:
Douglas Han, Esq.
JUSTICE LAW CORPORATION
751 N Fair Oaks Ave, Ste. 101
Pasadena, CA 91103-3069
Phone: (818) 230-7502
Fax: (818) 230-7259
Email: dhan@justicelawcorp.com
SMG/LONG BEACH: Acosta Labor Suit Removed to C.D. California
------------------------------------------------------------
The case styled ELIA PAREDES ACOSTA, individually and on behalf of
all others similarly situated v. SMG/LONG BEACH CONVENTION AND
ENTERTAINMENT CENTER, ASM GLOBAL FRESNO, LLC, and DOES 1 through
100, inclusive, Case No. 21STCV27103, was removed from the Superior
Court of the State of California for the County of Los Angeles to
the U.S. District Court for the Central District of California on
September 3, 2021.
The Clerk of Court for the Central District of California assigned
Case No. 2:21-cv-07147 to the proceeding.
The case arises from the Defendants' alleged violations of the
California Labor Code and the California Business and Professions
Code including failure to pay all overtime wages owed, failure to
pay all minimum wages owed, and unfair competition.
SMG is a worldwide venue management group, headquartered in West
Conshohocken, Pennsylvania.
ASM Global Fresno, LLC is a venue & event management company, with
its principal place of business in West Conshohocken, Pennsylvania.
[BN]
The Defendant is represented by:
Steven M. Kroll, Esq.
BENT CARYL & KROLL, LLP
6300 Wilshire Boulevard, Suite 1415
Los Angeles, CA 90048
Telephone: (323) 315-0510
Facsimile: (323) 774-6021
E-mail: skroll@bkclegal.com
SODEXO INC: Meza Wage-and-Hour Suit Goes to C.D. California
-----------------------------------------------------------
The case styled BRANDON MEZA and JENNIFER HAAG, individually and on
behalf of all others similarly situated v. SODEXO, INC.; and DOES 1
to 100, inclusive, Case No. 21STCV26456, was removed from the
Superior Court of California in and for the County of Los Angeles
to the U.S. District Court for the Central District of California
on September 3, 2021.
The Clerk of Court for the Central District of California assigned
Case No. 2:21-cv-07131 to the proceeding.
The case arises from the Defendant's alleged violations of the
California Labor Code and the California Unfair Competition Law
including failure to pay minimum wages, failure to pay overtime
wages, failure to provide meal periods, failure to provide rest
periods, failure to timely pay wages during employment, failure to
provide accurate wage statements, failure to timely pay all final
wages and unfair business practices.
Sodexo, Inc. is a food services and facilities management company
headquartered in France. [BN]
The Defendant is represented by:
Jeffrey D. Wohl, Esq.
Jana B. Fitzgerald, Esq.
PAUL HASTINGS LLP
101 California Street, 48th Floor
San Francisco, CA 94111
Telephone: (415) 856-7000
Facsimile: (415) 856-7100
E-mail: jeffwohl@paulhastings.com
janafitzgerald@paulhastings.com
STABLE ROAD: Project Marvel Merger Related Suits Underway
---------------------------------------------------------
Stable Road Acquisition Corp. (SRAC) said in its Form 10-Q Report
filed with the Securities and Exchange Commission on August 11,
2021, for the quarterly period ended June 30, 2021, that the
company continues to defend several class action suits related to
its merger with Project Marvel First Merger Sub, Inc.
On October 7, 2020, SRAC entered into an Agreement and Plan of
Merger, as amended on March 5, 2021, April 6, 2021 and June 29,
2021 (as it may be further amended and/or restated from time to
time, the "Merger Agreement"), by and among SRAC, Project Marvel
First Merger Sub, Inc., a Delaware corporation and wholly-owned
subsidiary of SRAC ("First Merger Sub"), and Project Marvel Second
Merger Sub, LLC, a Delaware limited liability company and
wholly-owned subsidiary of SRAC ("Second Merger Sub"), and Momentus
Inc., a Delaware corporation, pursuant to which, among other
things: (a) First Merger Sub will merge with and into Momentus
("First Merger"), with Momentus being the surviving corporation of
the First Merger and (b) immediately following the First Merger and
as part of the same overall transaction as the First Merger,
Momentus will merge with and into Second Merger Sub (the "Second
Merger" and, together with the First Merger, the "Mergers"), with
Second Merger Sub being the surviving company of the Second Merger.
The Merger Agreement, the Mergers and the other transactions
contemplated by the Merger Agreement are referred to herein as the
"Proposed Transaction."
On July 15, 2021, a purported stockholder of the Company filed a
putative class action complaint against the Company, the Sponsor,
Brian Kabot, James Norris, Momentus, and Mikhail Kokorich in the
United States District Court for the Central District of
California, in a case captioned Jensen v. Stable Road Acquisition
Corp., et al., No. 2:21-cv-05744.
The complaint alleges that the defendants omitted certain material
information in their public statements and disclosures regarding
the Proposed Transaction, in violation of the securities laws, and
seeks damages on behalf of a putative class of stockholders who
purchased the Company's stock between October 7, 2020 and July 13,
2021.
On July 22, 2021, and August 4, 2021, respectively, two other
purported stockholders filed putative class action complaints in
the same court, in cases captioned Hall v. Stable Road Acquisition
Corp., et al., No. 2:21-cv-05943, and Depoy v. Stable Road
Acquisition Corp., et al., No. 2:21-cv-06287, asserting
substantially similar claims and seeking substantially similar
relief.
Other, similar suits may follow.
Stable Road Acquisition Corp. is a blank check company incorporated
as a Delaware corporation and formed for the purpose of effecting a
merger, capital stock exchange, asset acquisition, stock purchase,
reorganization or similar business combination with one or more
businesses. The company is based in Venice, California.
STATEWIDE FUMIGATION: Denial of Arbitration in Delgado Suit Upheld
------------------------------------------------------------------
In the case, NICOLAS DELGADO, Plaintiff and Respondent v. STATEWIDE
FUMIGATION SAN DIEGO COUNTY, INC., Defendant and Appellant, Case
No. D077913 (Cal. App.), the Court of Appeals of California for the
Fourth District, Division One, affirms the trial court's order
denying Statewide's petition to compel arbitration on the ground
that it waived any right it may have had to arbitrate the matter.
Background
Mr. Delgado filed the putative class action against Statewide on
May 27, 2016, on behalf of himself and other similarly situated
current and former employees of Statewide. In his complaint,
Delgado alleged a variety of Labor Code violations against
Statewide, including the failure to provide meal periods, to
provide rest periods, to pay minimum and straight time wages, to
pay overtime compensation, to pay wages in a timely manner upon
termination of employment, and to provide accurate statements and
maintain required records. The complaint also alleged a claim for
unfair business practices under Business and Professions Code
section 17200 et seq. (Section 17200). Finally, Delgado brought a
representative cause of action under the Private Attorneys General
Act (PAGA), Labor Code section 2698 et seq., for all of the
violations of the Labor Code alleged elsewhere in the complaint.
Statewide filed an answer on Sept. 13, 2016. After Statewide filed
its answer, the case proceeded to discovery, and a motion for class
certification was anticipated. On Aug. 24, 2017, the court issued a
tentative ruling with respect to the class certification hearing
that was scheduled for September 1.
In the tentative ruling, the court indicated its intention to deny
Delgado's request in his Case Management Statement to continue the
class certification hearing. The court further indicated its
intention to deny any motion for class certification (even though
Delgado had not yet filed his motion for class certification), and
to strike Delgado's class allegations from the complaint. It then
indicated that it would order Delgado to submit an ex parte
application for an order striking Statewide's answer to the
complaint, and would require Delgado to proceed via default
prove-up 'with respect to his individual claims.' The court warned
that if Delgado failed to proceed as ordered, the court would
'simply dismiss the case.'
On Sept. 1, 2017, the trial court held a joint case management
conference and hearing regarding class certification. After hearing
argument from Delgado's counsel, the court affirmed its tentative
ruling denying Delgado's request to continue the hearing on the
motion for class certification and also denying on the merits any
motion for class certification. The court also issued an order to
show cause why the case should not be dismissed, and set a hearing
on the order to show cause for Nov. 3, 2017.
On Oct. 5, 2017, Delgado filed a notice of appeal from the court's
order denying class certification (Delgado I).
At some point, Statewide hired new counsel. While the appeal from
the denial of class certification was pending, that counsel filed a
new answer, given that the trial court had stricken the original
answer. In the new answer, Statewide asserted an affirmative
defense that Delgado's claims were subject to arbitration pursuant
to an agreement between the parties.
Delgado's appeal of the trial court's order denying class
certification was pending before the Court of Appeals from October
2017 until March 2019. Statewide's counsel represented Statewide in
that appeal.
On March 5, 2019, the Court of Appeals issued its opinion in
Delgado I, in which we reversed the trial court's denial of the
motion for class certification and directed the trial court "to
permit Delgado sufficient time to attempt to obtain the discovery
that the court previously ordered Statewide to produce and to file
his papers in support of class certification." The remittitur
issued on June 26, 2019.
On remand, the trial court set a Case Management Conference for
August 16, 2019. In the Case Management Statement that Statewide
filed for the August 2019 Case Management Conference, Statewide
indicated that it was requesting "a jury trial"; Statewide did not
mark any of the boxes related to arbitration or otherwise indicate
that Delgado's claims were subject to arbitration.
At the August 2019, hearing, the trial court set June 5, 2020 as
the new date for Delgado's class certification hearing.
As the trial court noted in the order that Statewide challenges in
this appeal, on March 17, 2020, the Presiding Judge of the San
Diego Superior Court signed the first in a series of administrative
orders closing the court for all but emergency matters due to the
COVID-19 pandemic. Both a May 15, 2020 civil motion hearing date
set by Statewide and the June 5, 2020 hearing date for Delgado's
class certification were vacated because of the court's closure.
The trial court re-opened on May 26, 2020. More than a month later,
the parties appeared before the court for a status conference, at
which time the court rescheduled the hearings for Statewide's
motion to compel arbitration and Delgado's motion for class
certification.
The trial court noted that during the time that the court was
closed, the parties exchanged moving and opposition papers with
respect to Statewide's motion to compel arbitration. The court
deemed these motion and opposition papers filed as of May 26, 2020,
the day the trial court reopened.
The trial court heard Statewide's motion to compel arbitration on
Aug. 28, 2020. After reviewing the parties' briefing and hearing
oral argument on the matter, the trial court denied the motion to
compel arbitration on the ground that Statewide had waived its
right to compel arbitration of the matter.
In finding that Statewide had waived its right to compel
arbitration, the trial court noted that Statewide "knew about the
arbitration provision" in the parties' agreement from the outset,
given that Statewide asserted the existence of the arbitration
provision and its right to arbitrate pursuant to that provision in
an affirmative defense "in the now-stricken answer it filed nearly
four years ago." The court noted that Statewide "reiterated the
same asserted right to compel arbitration" in its 2017 answer to
the complaint, as well, but did not seek to enforce that term of
the parties' agreement "until, at the earliest, mid-March 2020,"
and that Statewide failed to offer the court "any explanation for
its delay." Based on this delay, the court determined that the
petition to compel arbitration "was not brought within a reasonable
time," citing Burton v. Cruise (2010) 190 Cal.App.4th 939, 945, in
which the court noted that the Supreme Court has expressly observed
that "a party's unreasonable delay in demanding or seeking
arbitration, in and of itself, may constitute a waiver of a right
to arbitrate."
The trial court also found that Statewide had not only unreasonably
delayed in asserting its right to arbitrate Delgado's claims, but
that it had also taken actions inconsistent with an intent to
assert its right to arbitrate by participating in discovery
negotiations, objecting to discovery requests on the merits, and
generally participating in the litigation over a period of several
years. Finally, the trial court found that Delgado had suffered
prejudice as a result of Statewide's conduct in waiting so long to
move to compel arbitration and in acting in a manner inconsistent
with its right to arbitrate during that time period.
Statewide filed a timely notice of appeal from the trial court's
order.
Discussion
Statewide contends that there is insufficient evidence to support
the trial court's finding that it waived its right to compel
arbitration.
The Court of Appeals disagrees. It explains, the trial court stated
that it "had no difficulty concluding that the Defendant waived its
right to compel arbitration." After examining the procedural record
before it, the court determined that Statewide was aware of the
arbitration provision from the beginning of the litigation, yet
waited approximately four years before indicating any intention to
move to compel arbitration. The court found this to be a lengthy
delay weighing in favor of a finding of waiver.
Beyond the extreme delay that occurred in the case, as the trial
court noted, the Court of Appeals finds that Statewide engaged in
any number of actions that were inconsistent with the right to
arbitrate. For example, Statewide took part in negotiating,
drafting, and entering into a stipulated protective order regarding
the exchange of documents and information in the litigation.
Further, the record discloses that, in response to Delgado's
document demands and notice of a deposition of Statewide's
designated person most knowledgeable, Statewide filed objections
and fought the discovery, all without ever suggesting that the
matter should be arbitrated and that the judicial discovery process
should be halted for this reason. The manner in which Statewide
responded to Delgado's discovery requests therefore supports the
trial court's finding that Statewide engaged in acts that were
inconsistent with its right to arbitrate.
A review of the record also demonstrates that Statewide
participated in the litigation in other ways, such as by appearing
for hearings, filing documents, and defending the trial court's
denial of class certification in the appeal taken from that order,
all without suggesting that the matter should be arbitrated rather
than litigated in court. As the trial court noted, Statewide did
not indicate in either of its case management statements that it
was "willing to participate in" binding private arbitration.
Finally, the Court of Appeals holds that the record provides ample
evidence to support the trial court's finding that Statewide's
actions during the litigation that were inconsistent with its
claimed intent to arbitrate had the effect of causing real
prejudice to Delgado. As the trial court noted, Statewide's conduct
has deprived Delgado of the opportunity to obtain a prompt
resolution of his claims. Rather than move to compel arbitration at
an earlier point in time, Statewide repeatedly defended against
Delgado's discovery and other motions on their merits. As a result,
Delgado's attorneys have expended more than 150 hours on the case,
and have spent $7,753.13 up until the time of this appeal.
Conclusion
For these reasons, the Court of Appeals concludes that the record
fully supports the trial court's finding that Statewide has waived
its right to compel arbitration. Hence, the trial court's order
denying Statewide's motion to compel arbitration is affirmed.
Delgado is entitled to his costs on appeal.
A full-text copy of the Court's Aug. 27, 2021 Opinion is available
at https://tinyurl.com/35aecf8j from Leagle.com.
Rastegar Law Group, Farzad Rastegar -- farzad@rastegarlawgroup.com
-- and Thomas S. Campbell -- tom@rastegarlawgroup.com -- for the
Plaintiff and Respondent.
Simpson Delmore Greene, Terence L. Greene -- tgreene@sdgllp.com --
and Ross M. Poole -- rpoole@sdgllp.com -- for the Defendant and
Appellant.
SUNDANCE INC: Morgan Files Certiorari Petition in FLSA Suit
-----------------------------------------------------------
Plaintiff Robyn Morgan filed with the Supreme Court of United
States a petition for a writ of certiorari in the matter styled
Robyn Morgan, on behalf of herself and all similarly situated
individuals, Petitioner v. Sundance, Inc., Respondent, Case No.
21-328.
Response is due on October 1, 2021.
The Plaintiff petitions for a writ of certiorari to review the
judgment of the United States Court of Appeals for the Eight
Circuit in the case titled Robyn Morgan, on behalf of herself and
all similarly situated individuals, Plaintiff-Appellee v. Sundance,
Inc., Defendant-Appellant, Case No. 19-2435. The Eight Circuit
reversed U.S. District Court for the Southern District of Iowa's
order denying the Defendant's motion to compel arbitration of
Plaintiff's claims.
As previously reported in the Class Action Reporter, the Plaintiff
alleges that Sundance willfully violated the Fair Labor Standards
Act by knowingly failing to compensate the Plaintiff for overtime
wages for the hours she worked in excess of 40 hours per week, and
failing to compensate her regular hourly rate for all hours worked
under 40.
The Eighth Circuit Court of Appeals agreed with several of its
sister circuits that standards under Rule 12(b)(6) or Rule 56 of
the Federal Rules of Civil Procedure apply to a motion to compel
arbitration. The court concluded, further, that it did not need to
choose between those rules, in a case where the parties both
submitted materials beyond the pleadings in support of and
resistance to a motion to compel arbitration, because in such a
case, Rule 56 standards would apply pursuant to Rule 12(d). Because
both parties, here, have submitted materials outside of the
pleadings, Rule 56 standards apply to Sundance's motion to compel
arbitration. Thus, the question is whether there are genuine issues
of material fact and whether Sundance is entitled to judgment as a
matter of law that arbitration must be compelled.[BN]
Plaintiff-Appellee-Petitioner Robyn Morgan, on behalf of herself
and all similarly situated individuals, is represented by:
Karla Ann Gilbride, Esq.
PUBLIC JUSTICE, P.C.
1620 L St. NW, Ste. 630
Washington, DC 20036
E-mail: kgilbride@publicjustice.net
T-MOBILE USA: Hamilton-Bynum Sues Over Data Breach
--------------------------------------------------
Sheila Hamilton-Bynum, on behalf of herself and all other persons
similarly situated, Plaintiff, v. T-Mobile USA, Inc., Defendant,
Case No. 21-cv-01190 (W.D. Wash., September 1 2021), seeks to
recover damages and other relief resulting from a data breach,
including but not limited to, compensatory damages, reimbursement
of costs and declaratory judgment and injunctive relief resulting
from negligence, breach of express and implied contract, breach of
fiduciary duty and violations of the Federal Trade Commission Act
and Washington's Consumer Protection Act.
T-Mobile USA, Inc. is a nationwide telecommunications company
headquartered in Bellevue, Washington and is a wholly owned
subsidiary of Deutsche Telekom AG, headquartered in Bonn, Germany.
T-Mobile collects a significant amount of data from its current and
former customers, often including sensitive personal information
such as Social Security numbers, addresses, telephone numbers,
dates of birth, bank account numbers, credit card numbers,
financial transaction records, credit ratings and driver’s
license numbers.
On August 19, 2021, T-Mobile announced a "Notice of Data Breach" on
its website that it had learned about on August 17, 2021.
Hamilton-Bynum alleges that T-Mobile failed to safeguard the
confidential information of millions of current and former T-Mobile
USA, Inc. customers. The confidential information stolen appears to
be encompass names, birthdays, Social Security numbers, driver's
license numbers, phone numbers, and account PINs, among other
Personal Identifying Information. [BN]
Plaintiff is represented by:
Anne-Marie E. Sargent, Esq.
Stephen P. Connor, Esq.
Derik Campos, Esq.
CONNOR & SARGENT PLLC
921 Hildebrand Lane NE, Suite 240
Bainbridge Island, WA 98110
Tel: (206) 654-5050
Email: steve@cslawfirm.net
aes@cslawfirm.net
derik@cslawfirm.net
- and -
Gary F. Lynch, Esq.
Nicholas A. Colella, Esq.
CARLSON LYNCH, LLP
1133 Penn Avenue, 5th Floor
Pittsburgh, PA 15222
Telephone: (412) 322-9243
Facsimile: (412) 231-0246
Email: glynch@carlsonlynch.com
ncolella@carlsonlynch.com
- and -
Joseph P. Guglielmo, Esq.
SCOTT+SCOTT ATTORNEYS AT LAW LLP
The Helmsley Building
230 Park Avenue, 17th Floor
New York, NY 10169
Telephone: (212) 223-6444
Facsimile: (212) 223-6334
Email: jguglielmo@scott-scott.com
- and -
MaryBeth V. Gibson, Esq.
THE FINLEY FIRM, P.C.
3535 Piedmont Road
Building 14, Suite 230
Atlanta, GA 30305
Telephone: (404) 320-9979
Facsimile: (404) 320-9978
Email: mgibson@thefinleyfirm.com
- and -
Arthur M. Murray, Esq.
MURRAY LAW FIRM
701 Poydras Street
New Orleans, LA 70139
Telephone: (504) 525-8100
Email: amurray@murray-lawfirm.com
- and -
Brian C. Gudmudson, Esq.
ZIMMERMAN REED LLP
1100 IDS Center
80 South 8th Street
Minneapolis, MN 55402
Telephone: (612) 341-0400
Facsimile: (612) 341-0844
Email: brian.gudmundston@zimmreed.com
T-MOBILE USA: Hill Files Suit in W.D. Missouri
----------------------------------------------
A class action lawsuit has been filed against T-Mobile USA, Inc.
The case is styled as Demetris Hill, individually and on behalf of
all similarly situated persons and on behalf of the general public
v. T-Mobile USA, Inc., Case No. 2:21-cv-04164-NKL (W.D. Mo., Aug.
25, 2021).
The nature of suit is stated as Other P.I.
T-Mobile US, Inc., doing business under the global brand name
T-Mobile -- http://www.t-mobile.com/-- is an American wireless
network operator.[BN]
The Plaintiff is represented by:
Lucy McShane, Esq.
Maureen M. Brady, Esq.
MCSHANE & BRADY, LLC
1656 Washington Street, Suite 120
Kansas City, MO 64108
Phone: (816) 888-8010
Email: lmcshane@mcshanebradylaw.com
mbrady@mcshanebradylaw.com
- and -
William B. Federman, Esq.
FEDERMAN & SHEERWOOD
10205 N Pennsylvania Ave
Oklahoma City, OK 73120
Phone: (405) 235-1560
Fax: (405) 239-2112
Email: wbf@federmanlaw.com
TEAM PRIOR: Maine District Court Reinstates Anderson FLSA Suit
--------------------------------------------------------------
In the case, CONNOR ANDERSON, individually and on behalf of
similarly situated persons, Plaintiff v. TEAM PRIOR, INC. and LEE
PRIOR Defendants, Docket No. 2:19-cv-00452-NT (D. Me.), Judge Nancy
Torresen of the U.S. District Court for the District of Maine
grants the parties' joint motion requesting that the Court
reinstates the case following the order of dismissal entered on
Jan. 13, 2021.
Background
The case concerns wages allegedly owed to Domino's Pizza delivery
drivers under the Fair Labor Standards Act ("FLSA"), 29 U.S.C.
Sections 201 et seq., and Maine wage laws, 26 M.R.S. Sections 661,
et seq.
The Plaintiff, Anderson, brought suit on behalf of himself and all
other similarly situated delivery drivers employed by Domino's
Pizza franchises owned by the Defendants. According to the
Plaintiff, the Defendants' driver reimbursement policy violates the
FLSA and Maine law because it fails to reasonably cover all of the
drivers' expenses relating to their personal vehicle use, and these
unreimbursed expenses cause the delivery drivers' wages to fall
below the minimum wage.
Specifically, the Complaint alleges that the Defendants required
drivers like the Plaintiff to maintain their own safe, legally
operable, and insured automobiles for pizza delivery, causing the
delivery drivers to incur vehicle-related costs while driving for
the primary benefit of the Defendants. The Plaintiff alleges that
the Defendants' per-delivery reimbursement policy, which applied to
all their delivery drivers, resulted in a reimbursement that was
below the IRS business mileage reimbursement rate and "much less
than a reasonable approximation of its drivers' automobile
expenses." He claims that, although the drivers were paid an hourly
wage at or slightly above the federal minimum wage, the "net" wage
paid to drivers (after deducting vehicle expenses) dropped to a
rate below the federal minimum wage because the Defendants'
reimbursement formula failed to reasonably reimburse the delivery
drivers for their driving-related expenses. According to the
Complaint, this practice violated the FLSA and Maine's wage and
hour laws, 26 M.R.S. Sections 661, et seq.
In March of 2020, the parties stipulated to conditional
certification of the FLSA collective action and requested that the
Court stays the matter to allow the parties to engage in mediation.
The Court granted the motion to stay and authorized the sending of
a notice of collective action and opt-in consent forms to all
current and former delivery drivers employed by the Defendants in
the prior three years. Fifty-six similarly situated drivers "opted
in" as Plaintiffs to the lawsuit by filing consent forms.
On Dec. 9, 2020, the parties reported the matter settled. The Clerk
then issued a procedural order, requiring counsel to file a
stipulation of dismissal within 30 days or the case would be
dismissed pursuant to Local Rule 41.1(a). No stipulation of
dismissal was filed so on Jan. 13, 2021, the Deputy Clerk entered
an Order of Dismissal, dismissing the case with prejudice and
without costs, subject to the right of the parties to move to
reinstate the action within one year if the settlement was not
consummated.
Now the parties have filed the current joint motion seeking
reinstatement of the case, certification of the proposed class for
settlement purposes, preliminary approval of the parties'
settlement agreement, authorization of their proposed class notice,
and the scheduling of a final approval hearing. Under the
settlement agreement, the Defendants agree to pay $250,000 to
resolve all claims asserted against them in the case, including all
claims under the FLSA and the wage and hour laws of Maine and
Connecticut.
Settlement and Release Agreement
The Settlement Agreement contemplates two "rounds" which are not
well defined. The first round seems to involve the drivers who have
already opted into the FLSA collective. The second round seems to
comprise drivers who -- at this later stage in the litigation --
receive notice of the proposed settlement and return claim forms,
thereby opting into both the FLSA collective and the class action
involving the state law claims.
Judge Torresen notes that the Settlement Agreement is riddled with
typographical errors and difficult to follow. Judge Torresen thinks
that, subject to court approval, the funds are to be distributed as
follows:
a. $5,000 to the named Plaintiff, Connor Anderson;
b. Up to $15,000 to the Claims Administrator for fees and
costs associated with administering the settlement (if costs are
less than $15,000, unused funds go to the Absent Class Member
Fund);
c. Up to $80,000 in the Plaintiff's counsel's attorneys' fees
and costs (which amounts to 32% of the total settlement amount);
d. $28,770.81 to the Round 1 Fund to be distributed pro rata
(based on miles driven) to class members who filed a consent to sue
form to join the litigation (in other words, the FLSA opt-in
plaintiffs);
e. $74,429.19 to the Round 2 Fund to be distributed to class
members who file a consent to sue or claim form in response to the
notice of class action settlement. Round 2 Fund recipients will get
a potential settlement payment that is calculated based upon the
number of miles driven during the class period (their individual
miles);
f. $31,800 to the Absent Class Member Fund to be distributed
per capita to all drivers in the class who did not opt in and do
not opt out (which is anticipated to amount to a minimum payment of
approximately $25 each); and
g. $15,000 to a Contingency Fund for late opt-ins and other
contingencies.
The net amount to be paid out to the collective and class, which is
estimated to include more than 1,000 individuals is thus $150,000.
In exchange for these settlement payments, the class members
receiving distributions from the Round 1 Fund or Round 2 Fund would
be releasing: all wage and hour claims or causes of action accrued
from Oct. 4, 2013, through the date the Court grants preliminary
approval for unpaid minimum and overtime wages that were asserted
in the Litigation, or that arise out of facts asserted in the
Litigation, including minimum and overtime wage claims, and claims
of under or unreimbursed expenses, meal and rest break claims, dual
job/80-20 claims, tip credit, wage notification, posting,
deduction, recordkeeping and paycheck claims, including all claims
under the Fair Labor Standards Act, 29 U.S.C. Sections 201, et.
seq. and the wage and hour laws of Maine and Connecticut, whether
known or unknown, including any related claims for liquidated
damages, penalties, attorneys' fees and costs, and interest; any
and all common law and equitable claims, including claims for
breach of contract, unjust enrichment, quantum meruit, etc.; and
any and all derivative claims relating to unpaid wages or minimum
wage compensation (Released Claims) against the Released Parties.
Their settlement checks would include similar release language
providing that "by signing and cashing or otherwise negotiating
this check," the class member agrees "to release all claims or
causes of action for unpaid minimum and overtime wages, including
minimum and overtime wage claims, under the Fair Labor Standards
Act and the state laws of Maine." Absent class members, those who
do not return claim forms (and do not request to be excluded),
"unconditionally waive, release, extinguish, acquit, and forever
discharge" all their wage and hour claims accrued from Oct. 4,
2013, "including all claims under wage and hour laws of Maine and
Connecticut without releasing FLSA claims." Their settlement checks
would include release language that "by signing and cashing or
otherwise negotiating this check," the class member agrees "to
release all claims or causes of action for unpaid minimum and
overtime wages, including minimum and overtime wage claims, under
the state laws of Maine."
The parties also have submitted a proposed Notice of Class Action
Settlement for my approval. The Notice informs recipients that they
have the following options: (1) if they previously filed a consent,
they do not need to do anything and will receive a payment from the
Round 1 Fund; (2) if they submit a claim form within 60 days of the
Notice mailing, they will receive the greater of the minimum
settlement payment or a pro rata share of the Round 2 Fund; (3) if
they do nothing, they will receive a minimum settlement payment and
release their Maine claims; (4) if they opt out of settlement, they
waive any benefits due under the settlement but will not be bound
by any releases and can pursue individual claims against the
Defendants; or (5) they can object to the settlement. Using a class
list provided by the Defendants, the Claims Administrator would
locate and mail the Notice to all class members.
Discussion
The Parties jointly seek reinstatement of the case, certification
of the proposed class action for settlement purposes, preliminary
approval of the settlement agreement, and approval of the proposed
notice of the settlement to the class.
I. Reinstatement of the Case
As a threshold matter, Judge Torresen grants the parties' request
to reinstate the case. She finds that the Order of Dismissal
entered by the Clerk's Office under Local Rule 41.1(a) was in
error, as Local Rule 41.1(c) governs the case. The case was brought
under the FLSA and Rule 23 of the Federal Rules of Civil Procedure,
and it requires court approval for any settlement. Accordingly, the
Judge is reinstating the case.
II. Preliminary Approvals of Proposed Settlement and Notice
The parties seek certification of a class under Fed. R. Civ. P.
23(b)(3). Members of a "class proposed to be certified for purposes
of settlement under Rule 23(b)(3)" must be given notice of their
right to request exclusion from the class and the binding effect of
any judgment if they fail to exercise their right to "opt out" of
the litigation.
In their joint motion, the parties assert that the proposed
settlement is "fair, reasonable, and adequate and should be
approved." But "a court must not simply rubber-stamp settlement
agreements as approved." In the case, the proposed settlement must
take into account the special complexities relating to approval of
a settlement of FLSA claims. Judge Torresen is also mindful of her
duty to protect unnamed Rule 23 class members from unjust or unfair
settlements. She has numerous concerns with the parties'
submissions, which must be satisfactorily addressed before she
preliminarily approves the parties' settlement.
First, Judge Torresen finds that the named Plaintiff has been
serving in the role of class representative and appears to be
adequately representing the interests of the class. The class is
represented by counsel experienced in wage-and-hour claims, and the
parties report that they fairly, honestly, and rigorously
negotiated the settlement following investigation6 and third-party
mediation. These factors suggest the proposal is likely to be found
fair, reasonable, and adequate.
Second, the Judge finds that that the parties have not explained
their potential damages under each of their legal theories. It is
unclear, for example, whether FLSA opt-ins would be eligible for
damages occurring over a two-year period or a three-year period. It
appears that the state claims benefit from a longer statute of
limitations, but it is unclear whether the class has a claim for
liquidated damages. Further complicating the matter, the Judge
finds that while the Complaint alleges only violations of the FLSA
and Maine law, the Settlement Agreement contemplates that drivers
will waive rights under Connecticut law. The parties have not
provided any information about Connecticut's minimum wage laws.
The proposed Settlement Agreement provides for a net payment of
$150,000 to the class. The parties have asserted that the
Settlement Agreement "provides an excellent outcome," but to
determine whether Jduge Torresen will likely be able to find that
the proposed settlement amount is adequate, she needs to know how
much the aggregate claims in the case are worth. The parties should
also submit information about (1) the range of potential recovery
for individual class members, (2) the range of expected payments to
individual class members within the different funds under the
Settlement Agreement, (3) the average expected settlement recovery
for individual class members, and (4) how the parties arrived at
these figures, the Judge adds. These estimates are necessary to
determine whether the proposed settlement appears to fall within
the range of possible approval.
Lastly, in determining whether she is likely to find the proposed
settlement fair and adequate, Judge Torresen also considers the
Settlement Agreement itself and whether it treats class members
equitably relative to each other. After reading the Settlement
Agreement, the Judge is left with many questions. Among other
things, she finds (i) the parties have provided insufficient
information to allow the Court to determine whether to give notice
of the settlement proposal to the class; and (ii) the proposed
Notice suffers from the same deficiencies as the Settlement
Agreement with respect to the treatment of the existing opt-in FLSA
collective and the remaining class members.
The parties should remedy these Notice defects -- in addition to
conforming the revised Notice to the changes that must be made in
the Settlement Agreement -- before resubmitting the Notice for
approval. Most importantly, the Notice must be clear, concise and
understandable.
III. Preliminary Certification of the Class for Settlement
Purposes
As noted earlier, the parties have previously stipulated to the
conditional certification of the FLSA collective, and they now seek
to have the class preliminarily certified under Rule 23(b)(3).
Because she cannot conditionally approve the settlement until the
issues identified above are resolved, Judge Torresen does not
analyze whether to preliminarily certify the class for purposes of
settlement. Suffice it to say that, at this time, she sees no real
impediments to preliminarily certifying a class, provided the
parties can address the problems with the proposed settlement and
the notice to the class.
Conclusion
For the reasons she stated, Judge Torresen grants the parties'
motion to reinstate the case. However, because she has concerns
that preclude her from finding that she is likely to approve the
settlement proposal as currently drafted, the Judge denies without
prejudice the parties' joint motion for preliminary approval of the
proposed class action settlement, for conditional certification of
the class, and for approval and authorization of the proposed
notice of class action. The parties are free to file a renewed
motion that sufficiently addresses my concerns, and they may
request a conference to review these preliminary approval issues if
they feel it would be helpful.
A full-text copy of the Court's Aug. 27, 2021 Order is available at
https://tinyurl.com/3cp7yx34 from Leagle.com.
UNITED STATES: Attorney's Fees in Thomas Suit Affirmed in Part
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In the case, JAMES THOMAS; DAVID HIXSON, Plaintiffs-Appellees v.
BILL HASLAM, et al., Defendants, JEFF LONG, Commissioner for the
Department of Safety and Homeland Security, in his official
capacity, Defendant-Appellant, Case No. 20-6188 (6th Cir.), the
U.S. Court of Appeals for the Sixth Circuit affirms in part and
reverses in part the district court's order granting the
Plaintiffs' motion for attorney's fees.
In January 2017, the Plaintiffs filed a putative class action
complaint under 42 U.S.C. Section 1983, challenging the
constitutionality of Section 105. Under this statute, Tennessee
residents were subjected to having their driver's licenses revoked
for failure to timely pay "court debt," including court costs,
litigation taxes, and fines resulting from a criminal conviction.
The Plaintiffs, residents of Tennessee who suffered from this
practice, contended that Section 105 violated their rights under
the Fourteenth Amendment's Equal Protection and Due Process Clauses
because it did not include an indigency exception.
The parties filed cross-motions for summary judgment; the district
court granted the Plaintiffs' motion and denied the Defendant's.
Specifically, the court: (1) declared Section 105 unconstitutional;
(2) ordered that all driver's licenses that had been revoked based
solely on an individual's inability to pay court debt be
reinstated; and (3) enjoined the State of Tennessee from further
revoking any driver's licenses pursuant to Section 105 until a
lawful procedure was implemented. The Defendant appealed that
decision to the Sixth Circuit.
Before the appeal was resolved, the Tennessee General Assembly
enacted a law that amended Section 105 by, inter alia, relieving
any individual from paying court debt who could provide proof of
his or her indigence. After this law became effective, the Sixth
Circuit asked both parties to provide the Court with supplemental
briefing to address how this new law affected their case. The
Plaintiffs argued that the passage of this law made their case
moot.
The Sixth Circuit agreed, acknowledging that when a plaintiff
abandons an argument on mootness grounds, that issue is no longer
live or justiciable. Accordingly, it vacated the district court's
judgment and remanded the case with instructions for the district
court to dismiss the underlying litigation as moot.
After the case was remanded, the Plaintiffs moved for attorney's
fees pursuant to 42 U.S.C. Section 1988(b). They sought
$1,081,174.50 in fees and $3,563.41 in costs. In response, the
Defendant asserted that because the Plaintiffs did not prevail on
the merits of their claims, the district court should decline to
award the Plaintiffs any fees that they incurred throughout the
course of the litigation. The Defendant especially took issue with
the Plaintiffs being awarded attorney's fees that were incurred on
appeal. The district court was unpersuaded by the Defendant's
arguments and awarded the Plaintiffs $760,385.56 in attorney's fees
and costs, which included fees for work performed at both the trial
and appellate levels.
The Defendant's timely appeal followed. It argues that the
Plaintiffs are not prevailing parties because their claims were
dismissed as moot and the district court's judgment was vacated.
Based on the events that transpired during the litigation, the
Sixth Circuit holds that it is difficult to debate that the
Plaintiffs were prevailing parties at the district court. It is
undisputed that the Plaintiffs succeeded and obtained the relief
they sought: The district court (1) concluded that Section 105 was
unconstitutional; (2) ordered the Commissioner to reinstate
driver's licenses that had unconstitutionally been revoked; and (3)
enjoined the State from revoking driver's licenses pursuant to
Section 105 in the future. Even though the Sixth Circuit held that
the case was moot because Section 105 was amended, it says it does
not change the fact that the Plaintiffs prevailed at the district
court. Therefore, the Plaintiffs are entitled to attorney's fees
for their counsel's efforts in obtaining an initial favorable
outcome for their clients.
The Defendant alternatively argues that if the Sixth Circuit were
to conclude that the Plaintiffs were prevailing parties at the
district court, it should find that the Plaintiffs should not be
permitted to receive attorney's fees incurred in the prior appeal.
It agrees.
The Sixth Circuit explains that in Lewis v. Cont'l Bank Corp., 494
U.S. 472, 483 (1990), the Supreme Court explicitly indicated that
in instances where a district court's judgment has been "vacated on
the basis of an event that mooted the controversy before the Court
of Appeals' judgment was issued," a party cannot be deemed a
"prevailing party" at that subsequent stage in the litigation, and
would thus not be entitled to attorney's fees associated with the
cost of the appellate litigation. Therefore, because the Plaintiffs
did not prevail at the appeals stage, they are not entitled to
attorney's fees incurred during the previous appeal.
For the foregoing reasons, the Sixth Circuit affirms in part,
reverses in part, and remands for further proceedings consistent
with its Opinion.
A full-text copy of the Court's Aug. 25, 2021 Order is available at
https://tinyurl.com/3sa89tbe from Leagle.com.
UNITED STATES: Bid for Habeas Corpus in Counterman v. FCI Denied
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In the case, JAMES COUNTERMAN, Petitioner v. SCOTT FINLEY, et al.,
Respondents, Civil No. 1:21-CV-00384 (M.D. Pa.), Judge Sylvia H.
Rambo of the U.S. District Court for the Middle District of
Pennsylvania overrules Petitioner Counterman's objections to the
Magistrate Judge's report and recommendation.
The R&R was issued by U.S. Magistrate Judge Martin C. Carlson on
April 27, 2021, which recommends denying the petition for writ of
habeas corpus filed by the Petitioner pursuant to 28 U.S.C. Section
2241.
Background
The Petitioner, who is currently incarcerated at FCI Schuylkill, is
serving a 144-month sentence for drug trafficking and money
laundering. He purportedly suffers from obesity, hypertension,
Hepatitis B and C and previously tested positive for COVID-19 on
Dec. 22, 2020. Although he is considered recovered from COVID-19,
he argues that his medical conditions continue to place him at
increased risk of developing severe medical complications from
COVID-19 should he become re-infected with the virus.
Additionally, the record shows that the Petitioner was offered, but
refused, the Pfizer-BioNTech COVID-19 vaccine on Feb. 9, 2021.
According to the Petitioner, he declined vaccination due to the
Centers for Disease Control and Prevention's ("CDC")
"recommendation of waiting at least 90 days post-covid prior to
taking the vaccine, and individuals also being recovered, showing
no further symptoms."
The Petitioner filed a petition for writ of habeas corpus on March
2, 2021 and asserts that his continued detention at FCI Schuylkill
violates the Eighth Amendment's prohibition against cruel and
unusual punishment. The basis of his federal habeas petition is
that prison officials allegedly failed to implement proper COVID-19
protocols, which thereby subjected him to unsafe conditions and
caused him and other inmates to contract the virus. As for relief,
th Petitioner seeks to either be released to home confinement,
receive some form of "order of enlargement" regarding his custodial
status, or have Respondents provide "medically adequate social
distancing, healthcare, and sanitation" at FCI Schuylkill.
On April 27, 2021, the Magistrate Judge issued a R&R that
recommended denying the Petitioner's Section 2241 petition on
several grounds. Specifically, the R&R found that: (1) insofar as
the Petitioner sought to bring a putative class action on behalf of
himself and other inmates at FCI Schuylkill, his pro se request for
class certification should be denied; (2) the Petitioner had not
satisfied the administrative exhaustion requirement for his
COVID-19 related claims; (3) the Petitioner's claims for relief
under the Coronavirus Aid, Relief, and Economic Security Act (the
"CARES Act") were not cognizable, as his request for home
confinement was within the sole discretion of the Bureau of Prisons
("BOP"); and (4) that the Petitioner's Eighth Amendment claim
failed as a matter of law when he had fully recovered from a case
of COVID-19 and declined to be vaccinated as a preventative measure
against further COVID-19 infection.
The Plaintiff filed objections to the R&R on May 10, 2020, to which
the Government responded on May 24, 2021. The Petitioner then filed
a reply brief on June 3, 2021, bringing the case to its present
procedural posture.
Discussion
The Petitioner raises several objections to the findings of the
magistrate judge set forth in the R&R. Specifically, he objects to
the finding that he cannot serve as a class representative and
argues that exhaustion of his administrative remedies was futile in
the context of the COVID-19 pandemic. He also objects to the
finding that his Eighth Amendment claim fails as a matter of law.
Upon de novo review of the record, Judge Rambo adopts the R&R's
statement of facts and procedural history concerning the pro se
habeas corpus petition. She holds that the R&R correctly found that
(i) the Petitioner cannot serve as a class representative under Fed
R. Civ. P. Rule 23; (ii) the Petitioner failed to exhaust his
administrative remedies; (iii) the Respondents did not violate the
Petitioner's Eighth Amendment Rights.
Conclusion
For these reasons, Judge Rambo overrules the Plaintiff's objections
and adopts the R&R in its entirety. Therefore, the Petitioner's
request for class certification and petition for habeas relief are
denied and dismissed. Further, to the extent one is required, the
Judge declines to issue a certificate of appealability as the
Petitioner has not made a "substantial showing of the denial of a
constitutional right." An appropriate order will follow.
A full-text copy of the Court's Aug. 25, 2021 Memorandum is
available at https://tinyurl.com/xuh7bwa6 from Leagle.com.
UNITED STATES: Habeas Corpus Bid in Fleming v. FCI Schuylkill Nixed
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In the case, JAMES FLEMING, Petitioner v. SCOTT FINLEY, et al.,
Respondents, Civil No. 1:21-CV-00385 (M.D. Pa.), Judge Sylvia H.
Rambo of the U.S. District Court for the Middle District of
Pennsylvania overrules Petitioner Fleming's objections to the
Magistrate Judge's report and recommendation.
The R&R issued by U.S. Magistrate Judge Martin C. Carlson on April
27, 2021, recommends denying the petition for writ of habeas corpus
filed by the Petitioner and adopts the R&R in its entirety.
Background
The Petitioner, who is currently incarcerated at FCI Schuylkill, is
serving a 120-month sentence imposed by the U.S. District Court for
the District of Hawaii for conspiracy to distribute controlled
substances. He purportedly suffers from diabetes, hypertension,
sleep apnea, hyperlipidemia, and severe obesity, and previously
tested positive for an asymptomatic case of COVID-19 on Dec. 22,
2020. Although the Petitioner has since recovered and received both
doses of the Pfizer-BioNTech COVID-19 vaccine, he argues that his
medical conditions continue to place him at increased risk of
developing severe medical complications from COVID-19 should he
become re-infected with the virus.
The Petitioner filed a petition for writ of habeas corpus on March
2, 2021 and maintains that his continued detention at FCI
Schuylkill violates the Eighth Amendment's prohibition against
cruel and unusual punishment. The basis of his federal habeas
petition is that prison officials allegedly failed to implement
proper COVID-19 protocols, which thereby subjected him to unsafe
conditions and caused him and other inmates to contract the virus.
As for relief, the Petitioner seeks to either be released to home
confinement, receive some form of "order of enlargement" regarding
his custodial status, or have Respondents provide "medically
adequate social distancing, healthcare, and sanitation" at FCI
Schuylkill.
On April 27, 2021, the Magistrate Judge issued a R&R that
recommended denying the Petitioner's Section 2241 petition on
several grounds. Specifically, the R&R found that: (1) insofar as
the Petitioner sought to bring a putative class action on behalf of
himself and other inmates at FCI Schuylkill, his pro se request for
class certification should be denied; (2) the Petitioner had not
satisfied the administrative exhaustion requirement for his
COVID-19 related claims; (3) the Petitioner's claims for relief
under the Coronavirus Aid, Relief, and Economic Security Act
("CARES Act") were not cognizable; and (4) that the Petitioner's
Eighth Amendment claim failed as a matter of law.
The Petitioner filed an objection to the R&R on May 10, 2021, to
which the Respondents responded on May 12, 2021.
Discussion
The Eighth Amendment guarantees a prisoner's right to be free from
"cruel and unusual punishments" while in custody. "To prevail
against prison officials on a claim that an inmate's conditions of
confinement violated the Eighth Amendment, the inmate must meet two
requirements: (1) the deprivation alleged must be, objectively,
'sufficiently serious,' and (2) the 'prison official must have a
sufficiently culpable state of mind.'" As relevant in the case, the
second element is met when an inmate shows that "prison officials
acted with deliberate indifference to the inmate's health or safety
or conditions of confinement that violated the inmate's
constitutional rights."
The Petitioner contends that Respondents displayed deliberate
indifference to his medical needs by failing to: reduce the inmate
population at FCI Schuylkill; sufficiently disinfect prison
facilities; and adequately respond to inmate complaints of the
after-effects of COVID-19.
Nonetheless, upon de novo review of the record, Judge Rambo agrees
with the R&R's assessment that the BOP has taken several reasonable
steps to curtail the effects of the pandemic at FCI Schuylkill.
Such measures include regularly testing both inmates and staff,
practicing quarantine and isolation strategies, and providing
inmates with vaccination opportunities. Further, she holds that
while the Petitioner's previous exposure to COVID-19 is indeed
regrettable, the uncontradicted evidence submitted by the
Respondents shows that Petitioner was asymptomatic, did not have
any documented complaints of symptoms or complications related to
the virus, and cooperated with the prison's vaccination efforts.
Simply stated, the "Petitioner has not identified, let alone
proven, any official conduct that exhibits deliberate indifference
to the health or safety or prisoners during this unprecedented
worldwide pandemic." Accordingly, the Petitioner's Eighth Amendment
claim cannot succeed, and the Court will overrule his objection.
The Judge additionally finds that the R&R's remaining findings lack
any clear error.
Conclusion
For the reasons she set forth, Judge Rambo overrules the
Plaintiff's objection and adopts the R&R in its entirety.
Accordingly, the Petitioner's request for class certification and
petition for habeas relief are denied and dismissed. An appropriate
order will follow.
A full-text copy of the Court's Aug. 25, 2021 Memorandum is
available at https://tinyurl.com/23fkhyst from Leagle.com.
VALVE CORP: G.G.'s Bid for Production of Steam Users Data Denied
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In the case, G.G., et al., Plaintiffs v. VALVE CORPORATION,
Defendant, Case No. C16-1941JLR (W.D. Wash.), Judge James L. Robart
of the U.S. District Court for the Western District of Washington,
Seattle, denies Plaintiffs Grace Galway and Brenda Shoss' motion to
compel Defendant Valve to produce certain data regarding users of
its Steam gaming platform.
Background
In 2017, the Court granted Valve's motion to compel arbitration of
the claims asserted by the Plaintiffs on behalf of themselves and
their minor children based on the children's agreement to an
arbitration clause in Valve's Steam Subscriber Agreement. The
arbitrators found in Valve's favor on all claims. Subsequently, the
Court denied the Plaintiffs' request to set aside the arbitrators'
awards and dismissed the case.
The Plaintiffs appealed. The Ninth Circuit Court of Appeals
affirmed the Court's dismissal of the claims that the Plaintiffs
brought on behalf of their children but reversed the dismissal of
the Plaintiffs' individual claims. The Ninth Circuit held that the
Court had erred in compelling the Plaintiffs to arbitrate their
individual claims because they were not users of Valve's Steam
gaming platform and thus had not agreed to the arbitration clause
in the Steam Subscriber Agreement.
After the case was remanded, the Plaintiffs filed an amended
complaint. In relevant part, they alleged that Valve's "Lootbox"
feature, which allows players of Valve's games to buy a "key" to a
virtual "weapons case" or "crate" that contains "Skins" (virtual
guns and knives with a variety of different looks and textures),
constitutes a form of gambling ("Lootbox gambling") that is
indistinguishable from playing a slot machine.
The Plaintiffs alleged that Valve's acts were deceptive within the
meaning of the Washington Consumer Protection Act, ch. 19.86 RCW
("CPA"), because they "created a false impression of fair play,
legality, and safety" which induced Plaintiffs to unwittingly
provide money to their minor children to purchase Skins and Lootbox
keys.
The Plaintiffs alleged these claims on behalf of the following
proposed class: All persons in the United States who are
parents/guardians of a minor child who provided funds to their
minor child(ren) for the purchase of Skins and/or> Keys for the
games CounterStrike:Global Offensive, Dota2 and Team Fortress 2.
Valve moved to dismiss the Plaintiffs' amended complaint. The Court
dismissed all of the Plaintiffs' individual claims except for their
CPA claim based on Valve's alleged support of Lootbox gambling.
The Plaintiffs now move the Court for an order compelling Valve to
produce certain Steam user account information.
Analysis
The Plaintiffs request 17 types of information about three
categories of Steam user accounts: Those that "have used the family
view feature," "have two or more different names in the 'Address'
field," or "have a different name in the 'Address' field than in
the credit card name field and/or PayPal information field." They
also seek information regarding (1) the number of Steam accounts
that fall into these three categories and (2) the number of Steam
accounts with key purchases in their histories which have not
logged playtime for the game CounterStrike:Global Offensive. The
Plaintiffs argue that they need this information, which they
repeatedly characterize as "putative class members' Steam account
data," to determine the number of class members and the identities
of the class members.
Judge Robart denies the Plaintiffs' motion. First, he holds, as
Valve points out, the members of the proposed class by definition
do not and cannot have Steam accounts. Indeed, the Plaintiffs'
individual CPA claims survive only because the Ninth Circuit found
that the Plaintiffs were not Steam users and thus could not have
agreed to Valve's arbitration clause. The information that the
Plaintiffs seek, therefore, is not "putative class members' Steam
account data"; rather, it is account data relating to third parties
who are not class members. As a result, the cases cited by the
Plaintiffs, which discuss discovery of class member account
information, are inapposite.
Second, Judge Robart agrees with Valve that it is only speculative
that the data Plaintiffs seek can be used to identify possible
class members. Valve does not collect or record information about
the names, ages, parent-child relationships, or parents of Steam
users. And as Valve explains, the information produced for the
accounts belonging to the Plaintiffs' children does not
successfully identify the Plaintiffs. Ms. Schoss' name appears
nowhere in her son's account data, and Ms. Galway's son's account
does not satisfy any of the three criteria set forth by the
Plaintiffs in their discovery requests. The Plaintiffs have offered
no explanation of how they would use the requested data to identify
members of the class.
Finally, Judge Robart is persuaded that assembling the data
requested by the Plaintiffs would impose an unreasonable and
disproportional burden on Valve. He finds there are hundreds of
millions of Steam user accounts and over 100 million monthly active
users. Because the information requested by the Plaintiffs spans
multiple databases and would require decryption of Valve's credit
card payment database, Valve's economist, Kristian Miller,
estimates that it would require at least two Valve employees
working full time for several weeks to compile the data Plaintiffs
request. In addition, Mr. Miller estimates that the data requested
by the Plaintiffs could include tens of millions of account
records. The Judge agrees with Valve that the burden of producing
the data the Plaintiffs seek far outweighs the relevance of the
data to class certification.
Conclusion
For the foregoing reasons, Judge Robart denies the Plaintiffs'
motion to compel.
A full-text copy of the Court's Aug. 25, 2021 Order is available at
https://tinyurl.com/4zuz8ynz from Leagle.com.
VENUS CONCEPT: Final Approval of Settlement in IPO Suit Pending
---------------------------------------------------------------
Venus Concept Inc. said in its Form 10-Q Report filed with the
Securities and Exchange Commission on August 13, 2021, for the
quarterly period ended June 30, 2021, that the final approval of
the settlement in the consolidated putative class action suit
entitled, In re Restoration Robotics, Inc. Securities Litigation,
Case No. 5:18-cv-03712-EJD, is pending.
Between May 23, 2018 and June 11, 2019, four putative shareholder
class action complaints were filed against Restoration Robotics,
Inc. (former name of the company), certain of its former officers
and directors, certain of its venture capital investors, and the
underwriters of the initial public offering ("IPO").
Two of these complaints, Wong v. Restoration Robotics, Inc., et
al., No. 18CIV02609, and Li v. Restoration Robotics, Inc., et al.,
No. 19CIV08173, were filed in the Superior Court of the State of
California, County of San Mateo, and assert claims under Sections
11, 12(a)(2) and 15 of the Securities Act of 1933 (the "Securities
Act").
The other two complaints, Guerrini v. Restoration Robotics, Inc.,
et al., No. 5:18-cv-03712-EJD and Yzeiraj v. Restoration Robotics,
Inc., et al., No. 5:18-cv-03883-BLF (together, the "Federal
Actions"), were filed in the United States District Court for the
Northern District of California and assert claims under Sections 11
and 15 of the Securities Act.
The complaints all allege, among other things, that the Restoration
Robotics' Registration Statement filed with the SEC on September 1,
2017 and the Prospectus filed with the SEC on October 13, 2017 in
connection with Restoration Robotics' IPO were inaccurate and
misleading, contained untrue statements of material facts, omitted
to state other facts necessary to make the statements made not
misleading and omitted to state material facts required to be
stated therein.
The complaints seek unspecified monetary damages, other equitable
relief and attorneys' fees and costs.
In the State Actions, Restoration Robotics, Inc., along with the
other defendants, successfully demurred to the initial Wong
complaint for failure to state a claim and secured a stay of both
cases based on the forum selection clause contained in its Amended
and Restated Certificate of Incorporation, which designates the
federal district courts as the exclusive forums for claims arising
under the Securities Act.
However, on December 19, 2018, the Delaware Court of Chancery in
Sciabacucchi v. Salzberg held that exclusive federal forum
provisions are invalid under Delaware law. Based on this ruling,
the San Mateo Superior Court lifted its stay of State Actions on
December 10, 2019.
On January 17, 2020, Plaintiffs in the State Actions filed a
consolidated amended complaint for violations of federal securities
laws, alleging again that, among other things, the Registration
Statement filed with the SEC on September 1, 2017 and the
Prospectus filed with the SEC on October 13, 2017 in connection
with Restoration Robotics' IPO were inaccurate and misleading,
contained untrue statements of material facts, omitted to state
other facts necessary to make the statements made not misleading
and omitted to state material facts required to be stated therein.
The complaint seeks unspecified monetary damages, other equitable
relief and attorneys' fees and costs.
On February 24, 2020, the Company demurred to the consolidated
amended complaint for failure to state a claim. On March 18, 2020,
the Delaware Supreme Court reversed the Chancery Court's decision
in Sciabacucchi v. Salzberg and held that exclusive federal forum
provisions are valid under Delaware law. On March 30, 2020, the
Company filed a renewed motion to dismiss based on its federal
forum selection clause.
A hearing on the Company's demurrer and renewed motion to dismiss
was held on June 12, 2020. On September 1, 2020, the court granted
the renewed motion to dismiss based on the Company's forum
selection clause as to the Company and individual defendants, but
not as to the venture capital and underwriter defendants. On
September 22, 2020, the Court entered a judgment of dismissal as to
the Company and the individual defendants.
On November 23, 2020, plaintiff filed a notice of appeal of the
Court's order granting the renewed motion to dismiss. On May 27,
2021, Plaintiff-Appellant Wong filed an opening brief in Wong v.
Restoration Robotics, Inc., No. A161489 (Cal. Ct. App., 1st App.
Dist., Div. 2).
The Company's responsive brief is due August 27, 2021.
In the Federal Actions, which have been consolidated under the
caption In re Restoration Robotics, Inc. Securities Litigation,
Case No. 5:18-cv-03712-EJD, Lead Plaintiff Eduardo Guerrini filed
his consolidated amended complaint for violations of federal
securities laws on November 30, 2018.
The consolidated amended complaint alleges again that, among other
things, Restoration Robotics' Registration Statement filed with the
SEC on September 1, 2017 and the Prospectus filed with the SEC on
October 13, 2017 in connection with the IPO were inaccurate and
misleading, contained untrue statements of material facts, omitted
to state other facts necessary to make the statements made not
misleading and omitted to state material facts required to be
stated therein.
On January 29, 2019, Restoration Robotics, Inc., along with certain
of its former officers and directors, filed a motion to dismiss the
consolidated amended complaint for failure to state a claim.
On October 18, 2019, the District Court granted Restoration
Robotics, Inc. motion to dismiss as to all but two allegedly false
or misleading statements contained in the Company's Prospectus. On
December 9, 2019, the Company filed its answer to the consolidated
amended complaint denying the falsity of these statements.
On May 29, 2020, Lead Plaintiff filed a motion for class
certification, which the Company elected not to oppose, and on July
29, 2020, the court certified a class of investors who purchased
shares of the Company's common stock pursuant or traceable to the
Company's IPO.
On February 22, 2021, the District Court granted the parties' joint
stipulation to stay all pending deadlines on the basis that the
parties had reached a settlement in principle for all claims in the
Federal Actions. On July 29, 2021, Lead Plaintiff filed a motion
for final approval of the settlement.
A hearing on that motion is scheduled for September 2, 2021.
In addition to the State and Federal Actions, on July 11, 2019, a
verified shareholder derivative complaint was filed in the United
States District Court for the Northern District of California,
captioned Mason v. Rhodes, No. 5:19-cv-03997-NC.
The complaint alleges that certain of Restoration Robotics' former
officers and directors breached their fiduciary duties, have been
unjustly enriched and violated Section 14(a) of the Securities
Exchange Act of 1934 (the “Exchange Act”) in connection with
the IPO and Restoration Robotics' 2018 proxy statement.
The complaint seeks unspecified damages, declaratory relief, other
equitable relief and attorneys' fees and costs. On August 21, 2019,
the District Court granted the parties' joint stipulation to stay
the Mason action during the pendency of the Federal Actions.
On June 21, 2021, the District Court granted the parties' further
stipulation to stay the Mason action during the pendency of the
Federal Action, and the case remains stayed.
Venus Concept Inc. (formerly Restoration Robotics, Inc.) is a
global medical technology company that develops, commercializes,
and sells minimally invasive and non-invasive medical aesthetic and
hair restoration technologies and related services. The Company's
systems have been designed on a cost-effective, proprietary and
flexible platform that enables it to expand beyond the aesthetic
industry's traditional markets of dermatology and plastic surgery,
and into non-traditional markets, including family and general
practitioners and aesthetic medical spas. The company was founded
in 2002 and is headquartered in Toronto, Ontario.
VIRGIN AMERICA: Certiorari Petition Filed in Bernstein Labor Suit
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Defendants VIRGIN AMERICA, INC. AND ALASKA AIRLINES, INC. filed
with the Supreme Court of United States a petition for a writ of
certiorari in the matter styled VIRGIN AMERICA, INC., AND ALASKA
AIRLINES, INC., PETITIONERS v. JULIA BERNSTEIN, ET AL.,
RESPONDENTS, Case No. 21-260.
Response is due on September 22, 2021.
The Defendants petition for a writ of certiorari to review the
judgment of the United States Court of Appeals for the Ninth
Circuit in the case titled JULIA BERNSTEIN; ESTHER GARCIA; LISA
MARIE SMITH, on behalf of themselves and all others similarly
situated, Plaintiffs-Appellees v. VIRGIN AMERICA, INC.; ALASKA
AIRLINES, INC., Defendants-Appellants, Case Nos. 19-15382,
20-15186.
The question presented is: Does the ADA preempt generally
applicable state laws that have a significant impact on airline
prices, routes, and services, as this Court and four circuits have
held, or does it preempt such laws only if they bind an airline to
a particular price, route, or service, as the Ninth Circuit has
held?
As reported in the Class Action Reporter on March 3, 2021, the
Ninth Circuit affirmed in part and reversed in part the district
court's order granting summary judgment to the Plaintiffs on
virtually all of their claims.
The case requires the Court to determine whether certain provisions
of the California Labor Code apply to an interstate transportation
company's relationship with its employees. Plaintiffs Bernstein,
Garcia, and Smith sued their employer, Virgin, alleging that Virgin
violated a host of California labor laws.
The Plaintiffs are California-based flight attendants who were
employees of Virgin. During the Class Period, approximately 25% of
Virgin's flights were between California airports. Approximately
75% of Virgin's flights took off or landed at a non-California
airport, but the vast majority of those flights retained some
connection to California: "From 2011 through 2016, the daily
percentage of Virgin's flights that arrived in or departed from
California airports was never less than 88%, and during some years
reached 99%."
The class members spent approximately 31.5% of their time working
within California's borders. There is no evidence in the record to
suggest that the class members spent more than 50% of their time
working in any one state, or that they worked in any other state
more than they worked in California. Virgin's fleet of aircraft
were registered with the Federal Aviation Administration at
Virgin's headquarters in Burlingame, California, and the record
does not reflect any other business headquarters.
In their complaint, the Plaintiffs alleged that Virgin failed to
pay minimum wage (Cal. Lab. Code Sections 1182.12, 1194, 1194.2),
overtime (Cal. Lab. Code Sections 510, 1194), and for every hour
worked (Cal. Lab. Code Section 204); failed to provide required
meal periods (Cal. Lab. Code Sections 226.7, 512), rest breaks
(Cal. Lab. Code Section 226.7), and accurate wage statements (Cal.
Lab. Code Section 226); failed to pay waiting time penalties (Cal.
Lab. Code Sections 201, 202, 203); and violated the Unfair
Competition Law (Cal. Bus. & Prof. Code Section 17200). The
Plaintiffs also sought compensation under the California Labor
Code's Private Attorneys General Act (Cal. Lab. Code Section 2698)
("PAGA").[BN]
Defendants-Appellants-Petitioners VIRGIN AMERICA, INC. AND ALASKA
AIRLINES, INC. are represented by:
Brendan T. Killeen, Esq.
MORGAN, LEWIS & BOCKIUS LLP
101 Park Ave.
New York, NY 10178
Telephone: (212) 309-6000
- and -
Douglas W. Hall, Esq.
Anthony J. Dick, Esq.
David J. Feder, Esq.
JONES DAY
51 Louisiana Ave., NW
Washington, DC 20001
Telephone: (202) 879-7679
- and -
Shay Dvoretzky, Esq.
Emily J. Kennedy, Esq.
SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP
1440 New York Ave., NW
Washington, DC 20005
Telephone: (202) 371-7000
E-mail: shay.dvoretzky@skadden.com
VROOM INC: Consolidated Putative Class Suit Underway in New York
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Vroom, Inc. said in its Form 10-Q Report filed with the Securities
and Exchange Commission on August 11, 2021, for the quarterly
period ended June 30, 2021, that the company continues to defend a
consolidated putative class action suit in the U.S. District Court
for the Southern District of New York.
Beginning in March 2021, multiple putative class actions were filed
in the U.S. District Court for the Southern District of New York by
certain of the Company's stockholders against the Company and
certain of the Company's officers alleging violations of federal
securities laws.
The lawsuits are captioned Zawatsky et al. v. Vroom, Inc. et al.,
Case No. 21-cv-2477; Holbrook v. Vroom, Inc. et al., Case No.
21-cv-2551; and Hudda v. Vroom, Inc. et al., Case No. 21-cv-3296.
All three of the lawsuits assert similar claims under Sections
10(b) and 20(a) of the Exchange Act, and SEC Rule 10b-5. The
complaints seek damages purportedly caused by alleged materially
misleading statements and/or omissions by the Company and the named
individual officers.
In each case, the named plaintiff(s) seek to represent a proposed
class of all persons who purchased or otherwise acquired the
Company's securities during a period from June 9, 2020 to March 3,
2021 (in the case of Holbrook and Hudda), or November 11, 2020 to
March 3, 2021 (in the case of Zawatsky).
In August 2021, the Court consolidated the cases, appointed a lead
plaintiff and lead counsel and ordered a consolidated amended
complaint to be filed.
The consolidated case is in preliminary stages, and the Company has
not yet responded.
The Company believes these lawsuits are without merit and intends
to vigorously contest these claims.
Vroom said, "While the outcome of any complex legal proceeding is
inherently unpredictable and subject to significant uncertainties,
based upon information presently known to management, the Company
believes that the potential liability, if any, will not have a
material adverse effect on the Company's financial condition, cash
flows, or results of operations."
Vroom, Inc. is an innovative, end-to-end ecommerce platform that is
transforming the used vehicle industry by offering a better way to
buy and a better way to sell used vehicles. The company is deeply
committed to creating an exceptional experience for its customers.
The company is based in New York, New York.
WATTS WATER: Wins Bid to Enforce Final Order in Trabakoolas Suit
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Judge William H. Orrick of the U.S. District Court for the Northern
District of California granted Watts' motion to enforce the Court's
Final Order and Judgment in the case, JASON TRABAKOOLAS, et al.,
Plaintiffs v. WATTS WATER TECHNOLOGIES, INC., et al., Defendants,
Case No. 12-cv-01172-WHO (N.D. Cal.).
Background
A group of Plaintiffs filed the class action for claims arising
from alleged defects of an acetal coupling nut on the Flexible
Plumbing Toilet Connector designed and manufactured by Defendants
Watts Water Technologies, Inc., Watts Regulator Co., and Wolverine
Brass, Inc. The parties subsequently agreed to the terms of a $23
million class settlement, which Judge Orrick approved on Aug. 5,
2014.
The Settlement Class, defined as "all individuals and entities,
that own or owned, or lease or leased, a residence or other
structure located in the United States containing a Toilet
Connector," agreed to a broad release of claims "regarding or
related to any alleged failure of a Coupling Nut on a Toilet
Connector."
From the $23 million Common Fund ($15 million after deductions),
the class members could make claims for (i) replacement of a Toilet
Connector within one year of the Final Order and Judgment (i.e., by
Aug. 5, 2015); and/or (ii) a cash payment for property damage
suffered from a failed Toilet Connector ("Property Damage Remedy")
within five years of the Final Order and Judgment (i.e., by Aug. 5,
2019).
Judge Orrick reserved "exclusive and continuing jurisdiction over
the Class Action, the Class Representatives, the Settlement Class
Members, Persons who are entitled to claim through or in the name
or right of Settlement Class Members, and the Defendants for the
purposes of supervising the implementation, enforcement,
construction, and interpretation of the Agreement, the Court's
Preliminary Approval Order, and this Judgment."
Watts moves for an order enforcing the Court's Final Order and
Judgment and enjoining Atlantic Surgical Associates P.A. and
Merchants Insurance Group as subrogee of Atlantic Surgical
Associates P.A. from pursuing claims against Watts in separate
lawsuits pending in the New Jersey Superior Court, Monmouth County:
Merchants Insurance Group a/s/o Atlantic Surgical Associates, P.A.
v. Watts Water Technologies Inc., et al., Case No., MON-L-001112-20
(filed April 2, 2020) and Atlantic Surgical Associates, P.A., v.
Watts Water Technologies, Inc., et al., Case No. MON-L-000451-21
(filed Feb. 9, 2021) (collectively "New Jersey Actions").
Atlantic Surgical leased two condominium units, Units 102 and 103,
of the premises located at 107 Monmouth Road, West Long Branch, New
Jersey 07764. On Aug. 1, 2018 (one year before the claim period
ended in the Trabakoolas class action), a water flooding event
occurred at the offices of Atlantic Surgical. The flooding was
allegedly caused by a defective Watts Toilet Connector installed in
the bathroom of the unit above Atlantic Surgical's property -- Unit
202 owned by Dr. Bruce Langer. Atlantic Surgical suffered damages
as a result of the flood.
On April 2, 2020, Atlantic Surgical's insurer, Merchants, filed
suit against Watts, seeking to recover the over $478,000 it paid
for the damages. On Feb. 9, 2021, Atlantic Surgical filed a
separate suit, claiming that although it received reimbursement
from its insurance carrier for certain damages it sustained, it did
not receive compensation for all of the damages it sustained as a
result of the flooding.
Sometime in September 2020, Watts received photographs of the
Toilet Connector at issue in the New Jersey Actions. Based on these
photos, it confirmed that the Toilet Connector was part of the
Trabakoolas settlement. On Sept. 25, 2020, Watts' counsel sent the
photos to Merchants' counsel and requested that he dismiss the
pending suit.
On Feb. 16, 2021, after Watts received the Master Deed and the
Bylaws of the 107 Monmouth Road property in document production, it
again asked Atlantic Surgical and Merchants to dismiss the two New
Jersey Actions because Atlantic Surgical possessed a financial
interest in the structure in which the subject Toilet Connector was
located. On March 4, 2021, the counsel for Merchants communicated
that, as he interpreted the Trabakoolas Settlement Agreement,
Atlantic Surgical was not within the Settlement Class, and
therefore would not dismiss either complaint.
On April 9, 2021, Watts filed a motion in the Court seeking to
enforce the Trabakoolas Final Order and Judgment and enjoin the New
Jersey Actions. Judge Orrick issued an order on May 7, 2021
informing the parties that he intended to consider the merits of
Watts' motion and whether the New Jersey Actions should be
enjoined. The counsel for Atlantic Surgical and Merchants have now
appeared in the Court for the purposes of opposing Watts' motion.
The matter is fully briefed and was heard on Aug. 18, 2021.
Discussion
Atlantic Surgical and Merchants do not dispute that Judge Orrick
has jurisdiction to interpret the Settlement Agreement and resolve
the merits of Watt's motion. The dispute is whether Atlantic
Surgical and Merchants are members of the Trabakoolas Settlement
Class and whether their claims are within the scope of the
Settlement Agreement such that the New Jersey Actions should be
enjoined.
I. Settlement Class
The Settlement Class is defined as: "all individuals and entities,
that own or owned, or lease or leased, a residence or other
structure located in the United States containing a Toilet
Connector." Atlantic Surgical argues that it does not fall under
that definition because the defective Toilet Connector at issue in
the New Jersey Actions was not contained in either of the two units
occupied by Atlantic Surgical. The subject Toilet Connector that
failed was located above Atlantic Surgical's suites in Unit 202
owned by Dr. Bruce Langer and not owned by Atlantic Surgical.
Atlantic Surgical interprets the adjective phrase "containing a
Toilet Connector" as modifying the nouns, "a residence or other
structure."
Under that interpretation, it argues that it cannot be a member of
the class because it neither owned nor leased the exact unit that
contained the subject Toilet Connector. Merchants shares the same
interpretation and contends that Atlantic Surgical cannot be a
member of the class because the Toilet Connector that failed and
the subject of Merchants' product liability action was not
contained in the units leased by Atlantic Surgical.
Watts argues that Atlantic Surgical and Merchants' interpretation
of the Settlement Class definition is too narrow. In its view, the
terms of the Settlement Agreement, including its attachments,
reject the contention that an individual or entity making a claim
needs to own or lease the specific unit containing a Toilet
Connector.
Atlantic Surgical and Merchants dispute the significance of
paragraph 112 of the Settlement Agreement, arguing that it broadens
the definition of the Settlement Class reflected in the Final Order
and Judgment and in the notice given to potential class members,
i.e., "All individuals and entities, that own or owned, or lease or
leased, a residence or other structure located in the United States
containing a Toilet Connector." But the Notice and Claim Forms
attached to the Settlement Agreement, which were approved by the
Final Order and Judgment, undercut that argument and further
support Watts' position.
Judge Orrick holds that Atlantic Surgical and Merchants' narrow
interpretation of the Settlement Class definition would frustrate
the goal of the Trabakoolas settlement -- to resolve claims between
Watts and those damaged by its allegedly defective Toilet
Connectors. Under their constrained interpretation, only those
persons and entities who owned or leased the exact portion of a
building or structure that contained the Toilet Connector would be
able to recover from the settlement, but not persons and entities
who owned/leased portions in the same building and who also
suffered damages by the same Toilet Connector. That interpretation
is simply not supported by the Settlement Agreement and its
attachments.
II. Type of Claims
The Settlement Agreement defines Claimant as: "A Settlement Class
Member (including Class Representatives) tendering a Claims Form
seeking a Property Damage Remedy from the Common Fund under the
terms of this Agreement, including any Person entitled to make a
Settlement Claim on behalf of a Settlement Class Member to the
extent permissible by law or this Agreement, such as (but not
limited to) a subrogated insurance carrier or a Person who claims
contribution or indemnity against Watts based on claims for alleged
failures of Coupling Nuts on Toilet Connectors within the scope of
this Agreement. The term 'Claimant' will also include any Person
who elects to submit a claim pursuant to the terms of this
Agreement."
To the extent that Claimant includes "a Settlement Class Member,"
the same analysis from above applies -- Atlantic Surgical is a
Settlement Class Member because it holds a leasehold interest in a
structure containing a Toilet Connector.
Atlantic Surgical and Merchants argue that their claims against
Watts in the New Jersey Actions are not covered by the Settlement
Agreement given the latter part of the Claimant definition -- "any
Person entitled to make a Settlement Claim on behalf of a
Settlement Class Member to the extent permissible by law or this
Agreement, such as (but not limited to) a subrogated insurance
carrier or a Person who claims contribution or indemnity against
Watts based on claims for alleged failures of Coupling Nuts on
Toilet Connectors within the scope of this Agreement." The New
Jersey Actions involve claims for strict products liability under
New Jersey's Product Liability Act and for breach of warranty, not
contribution or indemnity.
Judge Orrick holds that Watts responds correctly that such an
interpretation constrains the reading of Claimant because a
subrogated insurer or a person making a contribution or indemnity
claim is just one example of the type of entity or individual that
might be a Claimant but might not otherwise be a Settlement Class
Member. Atlantic and Merchants' interpretation ignores the "such as
(but not limited to)" language preceding the specific example.
Accordingly, even though Atlantic Surgical and Merchants' claims
for strict liability and breach of warranty were not directly
presented in the Trabakoolas class action, those claims are based
on an identical factual predicate of the claims at issue in the
Trabakoolas class action. The broad release of claims in the
Trabakoolas Settlement Agreement "of all damages, burdens,
obligations of liability of any sort which might otherwise have
been made in connection with any claim relating to any failure of
the Coupling Nut on a Toilet Connector" is enforceable.
Conclusion
Judge Orrick concludes that because the damages suffered by
Atlantic Surgical and Merchants arose as a result of an August 2018
flooding incident allegedly caused by a defective Toilet Connector
in premises leased in a building containing a Toilet Connector,
they were part of the Settlement Class and their claims are
released by the Settlement Agreement.
For these reasons, Judge Orrick granted Watts' motion to enforce
the Final Order and Judgment in the Trabakoolas class action. He
enjoined Atlantic Surgical and Merchants from pursuing their claims
in the New Jersey Actions.
A full-text copy of the Court's Aug. 27, 2021 Order is available at
https://tinyurl.com/3ha3xt4s from Leagle.com.
WORLDWIDE FLIGHT: Stanich Sues Over Failure to Pay Overtime Wages
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Frank Stanich, individually and on behalf of other members of the
general public similarly situated v. WORLDWIDE FLIGHT SERVICES,
INC., a Delaware corporation; and DOES 1-100, Inclusive, Case No.
STK-CV-UOE-2021-7999 (Cal. Super. Ct., San Joaquin, Cty., Aug. 25,
2021), is brought against the Defendants for failing to pay the
Plaintiffs for all regular and/or overtime wages earned and for
missed meal periods and rest breaks in violation of California
law.
The Plaintiff worked over 8 hours per day and/or 40 hours per week
during their employment with the Defendants. The Defendants engaged
in a pattern and practice of wage abuse against their hour-paid or
non-exempt employees within the State of California. This pattern
and practice involved, inter alia, failing to pay them for all
regular and/or overtime wages earned and for missed meal periods
and rest breaks in violation of California law, says the
complaint.
The Plaintiff was employed by the Defendant as an hourly-paid,
non-exempt employee from November 2016 to May 2021.
The Defendant was and is an employer whose employees are engaged
throughout the State of California.[BN]
The Plaintiff is represented by:
Edwin Aiwazian, Esq.
LAWYERS for JUSTICE, PC
410 West Arden Avenue, Suite 203
Glendale, CA 91203
Phone: (818) 265-1020
Fax: (818) 265-1021
ZEHANA INTERIORS: Morales Sues Over Non-Blind Friendly Website
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Nataly Morales, individually and on behalf of all others similarly
situated, Plaintiff, v. Zehana Interiors, LLC and Does 1 to 10,
inclusive, Defendants, Case No. 21-cv-07072 (C.D. Cal., September
1, 2021), seeks preliminary and permanent injunction, compensatory,
statutory and punitive damages and fines, prejudgment and
post-judgment interest, costs and expenses of this action together
with reasonable attorneys' and expert fees and such other and
further relief under the Americans with Disabilities Act and
California's Unruh Civil Rights Act.
Zehana Interiors is a full-service interior design firm that
produces both residential and commercial spaces. It operates the
website https://www.zehana.com/ Morales is legally blind and claims
that said website cannot be accessed by the visually-impaired.
[BN]
Plaintiff is represented by:
Thiago Coelho, Esq.
Jasmine Behroozan, Esq.
Binyamin I. Manoucheri, Esq.
WILSHIRE LAW FIRM
3055 Wilshire Blvd., 12th Floor
Los Angeles, CA 90010
Tel: (213) 381-9988
Fax: (213) 381-9989
Email binyamin@wilshirelawfirm.com
thiago@wilshirelawfirm.com
jasmine@wilshirelawfirm.com
*********
S U B S C R I P T I O N I N F O R M A T I O N
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