/raid1/www/Hosts/bankrupt/CAR_Public/210915.mbx
C L A S S A C T I O N R E P O R T E R
Wednesday, September 15, 2021, Vol. 23, No. 179
Headlines
101 HOLDINGS: Fischler Files ADA Suit in E.D. New York
1ST MERCHANT: Fabricant Files TCPA Suit in C.D. California
ABM ONSITE: Court OKs Settlement in Brinkmann Class Action
ACELRX PHARMA: Dec. 16 Hearing on Appointment of Lead Plaintiff Set
ADTALEM GLOBAL: Approval of Versetto Settlement Under Appeal
ADTALEM GLOBAL: Chamberlain Bid to Junk Johnson Suit Pending
ADTALEM GLOBAL: Chamberlain University Wins Bid to Junk Dean Suit
AGEAGLE AERIAL: Consolidated Madrid Suit Voluntarily Dismissed
AMAZON.COM: Schaeffer Suit Removed to S.D. Illinois
APPLE INC: In-App Payment Restrictions Shut Down by U.S. Judge
ARCIMOTO INC: Consolidated Putative Securities Class Suit Underway
ATI PHYSICAL: Klein Law Firm Reminds of October 15 Deadline
AYRO INC: Discloses Nonpayment of $45K Counsel Fees in DropCar Suit
BANK OF AMERICA: Overdraft Fee Class Actions Pending
BAUER HOCKEY: Furloughs Employees Without Proper Pay, Barber Says
BRAINSHARK INC: Wilk Sues Over Unauthorized Biometrics Collection
CALIFORNIA RENEWABLE: Naiman TCPA Suit Transferred to E.D. Cal.
CASPER SLEEP: Bid to Junk Putative Class Suit in New York Pending
CENTRAL FREIGHT: Henry Labor Suit Seeks to Certify Classes
CHICAGO, IL: Court Certifies Class and Subclass in Smith v. CPD
CONTACTUS LLC: Pyfrom Sues Over Failure to Pay Proper OT Wages
COOKWARE COMPANY: Crumwell Files ADA Suit in S.D. New York
CV SCIENCES: Colette Putative Class Suit Remains Stayed
CV SCIENCES: Continues to Defend Smith Class Suit
CYTOCOM INC: Litwin Putative Class Suit Dismissed
DESSY GROUP: Crumwell Files ADA Suit in S.D. New York
DIAMOND RESORTS: Has Until Oct. 2 to Respond to TAC in "Zwicky"
DIAMOND RESPIRATORY: JKCI Seeks to Certify TCPA Class
DIDI GLOBAL: Faces Hu Suit Over Share Price Drop
DMD MANAGEMENT: Spencer Seeks STNAs' Unpaid Overtime Wages
F21 OPCO: Faces Benson Suit Over Failure to Pay Proper Wages
FORTRESS BIOTECH: Cushman Class Suit Dismissed w/o Prejudice
FREEDOM MORTGAGE: Gresses Seek Initial Approval of Settlement
FREEDOM MOSES: Crumwell Files ADA Suit in S.D. New York
FRONTLINE ASSET: Arbitration Bid in Madorskaya FDCPA Suit Denied
GC SERVICES: Tovar Suit Removed to S.D. California
GENERAL MOTORS: Chevy Cruze Emissions Class Action May End
GENIUS BRANDS: Bid to Dismiss Consolidated Securities Suit Pending
GEOVERA SPECIALTY: Alexander Files Suit in W.D. Louisiana
HAWAI'I: Settlement Sets for Suit Over COVID-19 Outbreaks in Jails
HIRECLUB.COM INC: Misclassifies Employees, Lowe Suit Claims
HOME DEPOT: Li Fan Wage-and-Hour Suit Removed to E.D. California
HYUNDAI MOTOR: Tharpe et al., File Suit in C.D. California
IDEANOMICS INC: Monteverde & Associates Announces Class Action
ILLINOIS: Jerry Jeager Suit Seeks to Certify Class
ITERUM THERAPEUTICS: Klein Law Firm Reminds of Oct. 4 Deadline
JP URBAN: Underpays Movers & Packers, Orellana et al. Suit Claim
JUUL LABS: Causes Youth E-Cigarette Crisis, School District Says
KIMURA ENTERPRISES: Vasquez Sues Over Cooks' Unpaid Wages
L'UNIQUE ASSURANCES: Denies Coverage for COVID-19 Losses, Suit Says
LIVE VENTURES: Faces Sieggreen Class Action in Nevada
LOANDEPOT INC: Johnson Fistel Reminds of November 8 Deadline
MICHIGAN: Sanders Seeks to Certify Class of IBC Prisoners
NEIGHBORHOOD HEALTHCARE: Medical Malpractice Suit Goes to S.D. Cal.
OCUGEN INC: Kahn Swick Discloses Securities Class Action
ONE STOP: Faces Gaona Wage-and-Hour Class Suit in California
OOMA INC: To Defend Against Chiu Suit in Canada
PATZERIA FAMILY: Faces Bocel Suit Over Unpaid Minimum, OT Wages
PROGRESSIVE CORP: Buffington Seeks to Certify Class
PTC INC: Seeks Oct. 12 Extension to File Class Cert. Opposition
QUEBEC: Nunavik Crime Victims Left Out of Compensation Program
S-L DISTRIBUTION: Court Refuses to Decertify Class in Mode Suit
SAINT-GOBAIN PERFORMANCE: Lawyers Discuss PFOA Class Settlements
SELECTQUOTE INC: Howard G. Smith Reminds of October 15 Deadline
SMARTSHEET INC: Faces $7.3MM Class Action Indemnification Claim
SONIM TECHNOLOGIES: '33 Act Federal Action Settlement Gets Final OK
SOUTHLAND MANAGEMENT: Underpays Nursing Assistants, Madrid Claims
SPLUNK INC: Nov. 18 Hearing on Motion to Dismiss Class Suit
STATE FARM: Baker Loses Class Certification Bid
STATE FARM: Martino Must File Class Status Bid by Jan. 14, 2022
TESARO INC: Delaware Chancery Court Dismisses Kihm Class Suit
TOYOTA MOTOR: Lawyer Shares Details on 4Runner Vehicles' Rust Suit
TRANSWORLD SYSTEMS: Class Status-Related Bids Continued to Dec. 13
TREK RETAIL: Green FCRA and Labor Suit Removed to N.D. California
UNITED STATES: Hagens Berman Discloses Antitrust Suit Settlement
URBAN HEALTH: Tueros Suit Seeks Conditional Collective Status
VANS EXPRESS: Reitzi Sues Over Courier Drivers' Unpaid Wages
VIRGINIA: VEC Must Face Class Suit Over Unemployment Case Backlogs
WASTE CONNECTIONS: Faces Suit Over Increased Waste Service Fees
WASTE MANAGEMENT: Burger Civil Rights Suit Goes to W.D. Washington
WESTERN AUSTRALIA: Banksia Hill Youth Detainees' Class Suit Pending
XPRESSPA GROUP: Finalization of Collins Settlement Ongoing
ZAYO GROUP: Del. Court Narrows Teamsters' Claims Over Merger Deal
*********
101 HOLDINGS: Fischler Files ADA Suit in E.D. New York
------------------------------------------------------
A class action lawsuit has been filed against 101 Holdings. The
case is styled as Brian Fischler, Individually and on behalf of all
other persons similarly situated v. 101 Holdings doing business as:
Clae, Case No. 1:21-cv-05047-EK-RER (E.D.N.Y., Sept. 9, 2021).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Clae -- https://www.clae.com/ -- has been dedicated to design
unisex sneakers with a minimalist and vintage approach.[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
1ST MERCHANT: Fabricant Files TCPA Suit in C.D. California
----------------------------------------------------------
A class action lawsuit has been filed against 1st Merchant Funding
LLC, et al. The case is styled as Terry Fabricant, individually and
on behalf of all others similarly situated v. 1st Merchant Funding
LLC, Does 1 through 10, inclusive, and each of them, Case No.
2:21-cv-07294 (C.D. Cal., Sept. 11, 2021).
The lawsuit is brought over alleged violation of the Telephone
Consumer Protection Act for Restrictions of Use of Telephone
Equipment.
1st Merchant Funding -- https://www.1stmerchantfunding.com/ -- is a
Miami based financial technology company focused on providing
working capital to US based small businesses.[BN]
The Plaintiff is represented by:
Todd M. Friedman, Esq.
LAW OFFICES OF TODD M. FRIEDMAN PC
21550 Oxnard St., Suite 780
Woodland Hills, CA 91367
Phone: (323) 306-4234
Fax: (866) 633-0228
Email: tfriedman@toddflaw.com
ABM ONSITE: Court OKs Settlement in Brinkmann Class Action
-----------------------------------------------------------
In the class action lawsuit captioned as JOSEPH BRINKMANN, both in
his individual capacity and as a collective action on behalf of
others similarly situated, v. ABM ONSITE SERVICES -- WEST, INC.,
Case No. 3:17-cv-00478-SI (D. Oreg.), the Hon. Judge Michael H.
Simon entered an order that:
1. The settlement motion is granted, and the fees motion is
granted in part.
2. The Court awards Lead Plaintiff $10,000 as an incentive
award for service to the Class, Class Counsel $822,322.79
in fees, and the Claims Administrator $50,000 for
settlement administration costs.
This is a hybrid collective and class action lawsuit brought by
Lead Plaintiff Brinkmann individually and on behalf of all others
similarly situated (the Class and Collective, or, collectively, C&C
1) for alleged violations of the Fair Labor Standards Act (FLSA)
and Oregon wage-and-hour laws against Defendant ABM Onsite Services
-- West, Inc. (ABM).
ABM Onsite is part of the investigation and security services
industry.
A copy of the Court's order dated Sept. 2, 2021 is available from
PacerMonitor.com at https://bit.ly/2X9E90R at no extra charge.[CC]
The Plaintiff is represented by:
Jon M. Egan, Esq.
JON M. EGAN, PC
547 Fifth Street
Lake Oswego, OR 97034
The Defendant is represented by:
Jennifer K. Sheffield, Esq.
Kelly M. Lipscomb, Esq.
David G. Hosenpud, Esq.
LANE POWELL, PC (SEATTLE)
1420 Fifth Avenue
Suite 4200, Seattle, WA 98111
ACELRX PHARMA: Dec. 16 Hearing on Appointment of Lead Plaintiff Set
-------------------------------------------------------------------
Acelrx Pharmaceuticals, Inc. said in its Form 10-Q Report filed
with the Securities and Exchange Commission on August 16, 2021, for
the quarterly period ended June 30, 2021, that the hearing on the
motions for appointment of lead plaintiffs in the securities class
action suit related to the marketing of DSUVIA, has been noticed
for December 16, 2021.
On June 8, 2021, a securities class action complaint was filed in
the U.S. District Court for the Northern District of California
against the Company and two of its officers. The plaintiff is a
purported stockholder of the Company.
The complaint alleges that defendants violated Sections 10(b) and
20(a) of the Exchange Act and SEC Rule 10b-5 by making false and
misleading statements and omissions of material fact about the
Company's disclosure controls and procedures with respect to its
marketing of DSUVIA.
The complaint seeks unspecified damages, interest, attorneys' fees,
and other costs.
Motions for appointment of lead plaintiff under the Private
Securities Litigation Reform Act were filed on August 9, 2021 and a
hearing on the motions has been noticed for December 16, 2021.
AcelRx Pharmaceuticals, Inc. is a specialty pharmaceutical company
focused on the development and commercialization of innovative
therapies for use in medically supervised settings. The company is
based in Hayward, California.
ADTALEM GLOBAL: Approval of Versetto Settlement Under Appeal
------------------------------------------------------------
Adtalem Global Education Inc. said in its Form 10-K Report filed
with the Securities and Exchange Commission on August 19, 2021, for
the quarterly period ended June 30, 2021, that the appeal in the
approval of the settlement in the class action suit initiated by
Nicole Versetto, is pending.
On April 13, 2018, a putative class action lawsuit was filed by
Nicole Versetto, individually and on behalf of others similarly
situated, against the Adtalem, DeVry University Inc., and DeVry/New
York Inc. in the Circuit Court of Cook County, Illinois, Chancery
Division.
The complaint was filed on behalf of herself and three separate
classes of similarly situated individuals who were citizens of the
State of Illinois and who purchased or paid for a DeVry University
program between January 1, 2008 and April 8, 2016.
The plaintiff claims that defendants made false or misleading
statements regarding DeVry University's graduate employment rate
and asserts causes of action under the Illinois Uniform Deceptive
Trade Practices Act, Illinois Consumer Fraud and Deceptive Trade
Practices Act, and Illinois Private Business and Vocational Schools
Act, and claims of breach of contract, fraudulent
misrepresentation, concealment, negligence, breach of fiduciary
duty, conversion, unjust enrichment, and declaratory relief as to
violations of state law.
The plaintiff seeks compensatory, exemplary, punitive, treble, and
statutory penalties and damages, including pre-judgment and
post-judgment interest, in addition to restitution, declaratory and
injunctive relief, and attorneys' fees.
The Adtalem Parties moved to dismiss this complaint on June 20,
2018. On March 11, 2019, the Court granted plaintiff's motion for
leave to file an amended complaint. The plaintiff filed an amended
complaint that same day, asserting similar claims, with new lead
plaintiff, Dave McCormick.
The defendants filed a motion to dismiss plaintiff's amended
complaint on April 15, 2019 and the Court granted Defendants'
motion on July 29, 2019, with leave to amend. The plaintiff filed
an amended complaint on August 26, 2019. On October 18, 2019, the
defendants moved to dismiss this complaint as it was substantially
similar to the one the Court previously dismissed.
The Court granted a Motion for Preliminary Approval of Class Action
Settlement on May 28, 2020.
In conjunction with the Settlement, Adtalem was required to
establish a settlement fund by placing $44.95 million into an
escrow account, which is recorded within prepaid expenses and other
current assets on the Consolidated Balance Sheet as of each of June
30, 2021 and 2020.
Adtalem management determined a loss contingency was probable and
reasonably estimable. As such, we also recorded a loss contingency
accrual of $44.95 million on the Consolidated Balance Sheet as of
June 30, 2020 and charged the contingency loss within discontinued
operations in the Consolidated Statement of Income (Loss) for the
year ended June 30, 2020.
As of June 30, 2020, the company had anticipated the potential
payments related to this loss contingency to be made from the
escrow account during fiscal year 2021.
The company now anticipates the potential payments related to this
loss contingency to be made from the escrow account during fiscal
year 2022. This loss contingency estimate could differ from actual
results and result in additional charges or reversals in future
periods.
The Court issued an order approving the settlement on October 7,
2020, and dismissed the action with prejudice.
On November 2, 2020, Stoltmann Law Offices filed on behalf of Jose
David Valderrama, a class member who objected to the terms of the
settlement, a notice to appeal the Court's order approving the
settlement.
On November 5, 2020, Richard Peart, another class member who
objected to the terms of the settlement, filed a notice to appeal
the Court's order approving the settlement.
Those appeals have been consolidated before the Appellate Court of
Illinois, First District and have been fully briefed.
Adtalem Global Education Inc. provides educational services
worldwide. It operates through three segments: Medical and
Healthcare, Professional Education, and Technology and Business.
Adtalem Global Education Inc. was founded in 1931 and is based in
Chicago, Illinois.
ADTALEM GLOBAL: Chamberlain Bid to Junk Johnson Suit Pending
------------------------------------------------------------
Adtalem Global Education Inc. said in its Form 10-K Report filed
with the Securities and Exchange Commission on August 19, 2021, for
the quarterly period ended June 30, 2021, that Chamberlain
University's motion to dismiss the putative class action suit
initiated by Travontae Johnson, is pending.
On March 12, 2021, Travontae Johnson, a current student of
Chamberlain University, filed a putative class action against
Chamberlain in the Circuit Court of Cook County, Illinois, Chancery
Division.
The plaintiff claims that Chamberlain's use of Respondus Monitor,
an online remote proctoring tool for student examinations violated
the Illinois Biometric Information Privacy Act ("BIPA'), 740 ILCS
14/15.
More particularly, the plaintiff claims that Chamberlain required
students to use Respondus Monitor, which collected, captured,
stored, used, and disclosed students' biometric identifiers and
biometric information without written and informed consent.
The plaintiff also alleges that Chamberlain lacked a legally
compliant written policy establishing a retention schedule and
guidelines for destroying biometric identifiers and biometric
information.
The potential class purportedly includes all students who took an
assessment using the proctoring tool, as a student of Chamberlain
in Illinois, at any time from March 12, 2016 through January 20,
2021.
The plaintiff and the putative class seek damages in excess of
$50,000, and attorneys' fees and costs.
The plaintiff and class also seek an unspecified amount of enhanced
damages based on alleged negligent or reckless conduct by
Chamberlain.
On April 19, 2021 and May 5, 2021, Chamberlain filed a motion for
extension of time to answer or otherwise plead, which resulted in
an extension until June 16, 2021.
On June 16, 2021, Chamberlain filed a motion to dismiss plaintiff's
complaint.
On June 29, 2021, plaintiff filed an amended complaint. On July 19,
2021, Chamberlain filed its motion to dismiss the amended
complaint. Chamberlain believes the allegations are without merit
and intends to vigorously defend this case.
Adtalem Global Education Inc. provides educational services
worldwide. It operates through three segments: Medical and
Healthcare, Professional Education, and Technology and Business.
Adtalem Global Education Inc. was founded in 1931 and is based in
Chicago, Illinois.
ADTALEM GLOBAL: Chamberlain University Wins Bid to Junk Dean Suit
-----------------------------------------------------------------
Adtalem Global Education Inc. said in its Form 10-K Report filed
with the Securities and Exchange Commission on August 19, 2021, for
the quarterly period ended June 30, 2021, that the motion to
dismiss the putative class action suit initiated by Tanesia Dean
against Chamberlain University has been granted.
On January 19, 2021, a putative class action was filed in the
United States District Court for the Northern District of Ohio
against Chamberlain University by Tanesia Dean on behalf of herself
and similarly situated students of Chamberlain.
The complaint alleged breach of contract and unjust enrichment
claims against Chamberlain related to its decision to transition
all classes online in March 2020, in light of the global pandemic,
without altering tuition or fees.
The putative class was defined to include all students, nationwide,
who paid tuition and fees during the following academic sessions:
May 2020, July 2020, September 2020, November 2020, and January
2021. Plaintiff sought monetary relief exceeding $5 million, and
attorneys' fees, costs, and expenses.
On April 5, 2021, Chamberlain filed a motion to dismiss the
complaint in its entirety.
The motion to dismiss was granted in full on August 16, 2021 and
the case was dismissed. Plaintiff has 30 days to appeal the
ruling.
Adtalem Global Education Inc. provides educational services
worldwide. It operates through three segments: Medical and
Healthcare, Professional Education, and Technology and Business.
Adtalem Global Education Inc. was founded in 1931 and is based in
Chicago, Illinois.
AGEAGLE AERIAL: Consolidated Madrid Suit Voluntarily Dismissed
--------------------------------------------------------------
AgEagle Aerial Systems, Inc. said in its Form 10-Q Report filed
with the Securities and Exchange Commission on August 18, 2021, for
the quarterly period ended June 30, 2021, that the consolidated
putative class action suit entitled, Madrid v. AgEagle Aerial
Systems Inc., et al., has been voluntarily dismissed.
AgEagle and certain of its current and former officers and
directors were named as defendants in two putative securities class
actions filed in the U.S. District Court for the Central District
of California (Lopez v. AgEagle Aerial Systems Inc., et al., Case
No. 2:21-cv01810; and Madrid v. AgEagle Aerial Systems Inc., et
al., Case No. 2:21-cv-01991).
These matters were consolidated, and a Lead Plaintiff designated by
Court Order.
On July 30, 2021, the Court-appointed Lead Plaintiff filed a
voluntary dismissal of the consolidated securities class action.
AgEagle Aerial Systems, Inc. produces, supports and operates
technologically advanced drone systems and solutions for the
fast-emerging unmanned aerial vehicle (UAV) industry. The company
is based in Wichita, Kansas.
AMAZON.COM: Schaeffer Suit Removed to S.D. Illinois
---------------------------------------------------
The case styled as April Schaeffer, individually and on behalf of
all others similarly situated v. Amazon.com Inc., Amazon.com
Services, LLC, Case No. 2021L000876, was removed from the Madison
County Circuit Court to the U.S. District Court for the Southern
District of Illinois on Aug. 31, 2021.
The District Court Clerk assigned Case No. 3:21-cv-01080-SPM to the
proceeding.
The nature of suit is stated as Other Contract.
Amazon.com, Inc. -- https://www.amazon.com/ -- is an American
multinational conglomerate which focuses on e-commerce, cloud
computing, digital streaming, and artificial intelligence.[BN]
The Plaintiff is represented by:
Kevin P. Green, Esq.
Thomas P. Rosenfeld, Esq.
GOLDENBERG HELLER & ANTOGNOLI, PC
2227 South State Route 157
Edwardsville, IL 62025
Phone: (618) 656-5150
Email: kevin@ghalaw.com
tom@ghalaw.com
The Defendants are represented by:
Alborz Hassani, Esq.
Gregory Thomas Fouts, Esq.
Elizabeth B. Herrington, Esq.
MORGAN, LEWIS & BOCKIUS LLP - Chicago
110 North Wacker Dr., Suite 2800
Chicago, IL 60606
Phone: (312) 324-1000
Fax: (312) 324-1001
Email: al.hassani@morganlewis.com
gregory.fouts@morganlewis.com
beth.herrington@morganlewis.com
APPLE INC: In-App Payment Restrictions Shut Down by U.S. Judge
--------------------------------------------------------------
Nicholas De Leon at consumerreports.org reports that consumers may
soon pay less for in-app purchases made on their iPhones.
A federal judge ruled that Apple must allow iPhone app developers
to direct customers away from the payment processing system in the
company's App Store, sidestepping the 30 percent commission long
imposed by Apple. The ruling also states that Apple can't ban
developers from using contact information obtained during in-app
signups to communicate directly with customers.
Those changes could let consumers get cheaper subscriptions,
advocates say, and perhaps benefit from offers such as bundled
deals and promotional pricing.
The ruling is scheduled to go into effect in 90 days unless it's
blocked by a higher court.
The decision comes on the heels of similar decisions regarding
alternative payment options in South Korea and Japan. And it
follows the proposed settlement last month of a class-action
lawsuit by U.S. developers that would let them email iPhone users
to tell them about alternative ways of buying apps. The new ruling
directs Apple to let developers do that from within the apps.
Epic Games, which filed the lawsuit against Apple a year ago,
argued that the App Store commission ultimately led to higher
prices for consumers. To prove the point, the company reduced
prices by 30 percent for consumers who purchased in-game currency,
known as V-Bucks, for its popular Fortnite game through Epic's
payment processing system rather than Apple's. In response, Apple
kicked the hugely popular game out of the App Store, though anyone
who had downloaded the game to an iPhone could continue using it.
"The decision is a small victory for consumers if it is not
overturned," says Sumit Sharma, senior researcher for tech
competition at Consumer Reports. "App developers may inform
consumers at the point of purchase via their apps that they can get
the same service at a lower price outside the app store. This will
come as a shock to many consumers who likely were not aware that
they were overpaying by purchasing services via the App Store."
Judge Yvonne Gonzalez-Rogers pointedly rejected the argument that
Apple had monopoly power, as Epic Games had argued, because
consumers can easily purchase games on computers and game consoles,
in addition to their phones. But the decision says that Apple's App
Store policies "hide critical information from consumers and
illegally stifle consumer choice."
Apple said it was pleased with the judge's finding that it's not a
monopoly. "The Court has affirmed what we've known all along: the
App Store is not in violation of antitrust law," an Apple
spokesperson told CR by email. "As the Court recognized 'success is
not illegal.' Apple faces rigorous competition in every segment in
which we do business."
Despite the victory, Epic Games CEO Tim Sweeney criticized the
verdict for not forcing Apple to permit competing app stores to be
downloaded onto iPhones. "The ruling isn't a win for developers or
for consumers," he said on Twitter. "Epic is fighting for fair
competition among in-app payment methods and app stores for a
billion consumers."
Advocacy groups, including Consumer Reports, argue that regulation
is needed to block Apple from engaging in anticompetitive practices
beyond its rules around payments, including promoting its own apps
over competitors'.
Spotify, which has had its own tussles with Apple over App Store
payments, is among a number of tech companies that agree. "We are
pleased with Judge Yvonne Gonzalez Rogers' finding that Apple
engaged in anti-competitive conduct and has permanently prohibited
their anti-steering provisions," said Horacio Gutierrez, Spotify's
head of global affairs and chief legal officer, in an emailed
statement. "There is strong need and momentum for legislation to
address these and many other unfair practices, which are designed
to hurt competition and consumers." [GN]
ARCIMOTO INC: Consolidated Putative Securities Class Suit Underway
------------------------------------------------------------------
Arcimoto, Inc. said in its Form 10-Q Report filed with the
Securities and Exchange Commission on August 16, 2021, for the
quarterly period ended June 30, 2021, that the company continues to
defend a consolidated putative class action suit entitled, In re
Arcimoto, Inc. Securities Litigation (Case No. 21-cv-02143).
The Company, Mark Frohnmayer and Douglas Campoli have been sued in
two putative class actions in the United States District Court for
the Eastern District of New York, Barnette v. Arcimoto, Inc. et al.
(Case No. 21-cv-02143 filed on April 19, 2021) and Gibson v.
Arcimoto, Inc. et al. (Case No. 21-cv-02870 filed on May 20, 2021).
The putative class actions purported to be on behalf of all those
who purchased the company's common stock between February 14, 2018
and March 22, 2021.
The allegations in the actions are based on the research report
dated March 23, 2021 produced by Bonitas Research, LLC, a short
seller of our common stock.
The Barnette and Gibson actions were consolidated as In re
Arcimoto, Inc. Securities Litigation (Case No. 21-cv-02143) on July
14, 2021, and a consolidated amended complaint is due on September
20, 2021. No motion to certify a class has been filed at this time.
Arcimoto said, "We believe we have substantial defenses to the
claims asserted in this lawsuit and intend to vigorously defend
this action."
Arcimoto, Inc. designs, develops, manufactures, and sells
three-wheeled electric vehicles. The company was formerly known as
WTP Inc and changed its name to Arcimoto, Inc. in December 2011.
Arcimoto, Inc. was founded in 2007 and is headquartered in Eugene,
Oregon.
ATI PHYSICAL: Klein Law Firm Reminds of October 15 Deadline
-----------------------------------------------------------
The Klein Law Firm announces that class action complaints have been
filed on behalf of shareholders of the following companies. There
is no cost to participate in the suit. If you suffered a loss, you
have until the lead plaintiff deadline to request that the court
appoint you as lead plaintiff.
ATI Physical Therapy, Inc. f/k/a Fortress Value Acquisition Corp.
II (NYSE:ATIP)
This lawsuit is on behalf of investors who: (a) purchased or
otherwise acquired ATI securities between April 1, 2021 and July
23, 2021, inclusive and/or (b) held FVAC Class A common stock as of
May 24, 2021 and were eligible to vote at FVAC's June 15, 2021
special meeting.
Lead Plaintiff Deadline: October 15, 2021
The complaint alleges that during the class period ATI Physical
Therapy, Inc. f/k/a Fortress Value Acquisition Corp. II made
materially false and/or misleading statements and/or failed to
disclose that: (1) ATI was experiencing attrition among its
physical therapists; (2) ATI faced increasing competition for
clinicians in the labor market; (3) as a result of the foregoing,
the Company faced difficulties retaining therapists and incurred
increased labor costs; (4) as a result of the labor shortage, the
Company would open fewer new clinics; and (5) as a result of the
foregoing, Defendants' positive statements about the Company's
business, operations, and prospects were materially misleading
and/or lacked a reasonable basis.
Learn about your recoverable losses in ATIP:
https://www.kleinstocklaw.com/pslra-1/ati-physical-therapy-inc-f-k-a-fortress-value-acquisition-corp-ii-loss-submission-form?id=19498&from=1
Your ability to share in any recovery doesn't require that you
serve as a lead plaintiff. If you suffered a loss during the class
period and wish to obtain additional information, please contact J.
Klein, Esq. by telephone at 212-616-4899 or visit the webpages
provided.
J. Klein, Esq. represents investors and participates in securities
litigations involving financial fraud throughout the nation.
Attorney advertising. Prior results do not guarantee similar
outcomes. [GN]
AYRO INC: Discloses Nonpayment of $45K Counsel Fees in DropCar Suit
-------------------------------------------------------------------
Ayro, Inc. said in its Form 10-Q Report filed with the Securities
and Exchange Commission on August 16, 2021, for the quarterly
period ended June 30, 2021, that the company has not yet paid the
$45,000 as payment for counsel fees, in a class action suit
involving DropCar, Inc.
DropCar was a defendant in a class action lawsuit which resulted in
a judgement entered into whereby the Company is required to pay
legal fees in the amount of $45,000 to the plaintiff’s counsel.
As of June 30, 2021 and December 31,2020, the balance due remains
$45,000.
No further updates were provided in the Company's SEC report.
Ayro, Inc. designs transportation equipment. The Company
manufactures electrical locomotives such as vehicles for logistics
industry. Ayro serves customers in the United States. The company
is based in Round Rock, Texas.
BANK OF AMERICA: Overdraft Fee Class Actions Pending
----------------------------------------------------
KEM Law Firm disclosed that Bank of America charges a $35 overdraft
fee. They also charge an NSF Fee, also known as a returned item fee
or insufficient funds fee. BOA lets you opt into overdraft
protection and also offers an additional service where they link
one of your other accounts in order to cover any overdrafts you
might create by doing a transaction when there isn't enough money
in your checking account. This service is known as Bank of America
overdraft protection. Make sure to read the Bank of America
overdraft policy carefully when you sign up for your account or if
they amend their policies. The policies can be confusing, and you
could end up with lots of fees if you don't know how they work.
Bank of America Class Action Lawsuit Overdraft Fees
There have been several class action lawsuits against Bank of
America for their overdraft fees, NSF fees and other types of bank
fees. For example, BOA used to charge an extended overdraft fee.
This was a fee they charged every five days that you didn't correct
an overdraft in your account by adding money to your balance and
bringing it positive. However, BOA was sued in a class action in
California Federal Court stating that the extended overdraft fees
were improper and violated usury laws. Bank of America agreed to
settle this suit, known as Farrell vs Bank of America, for $66.6
million dollars. BOA did not admit to any wrongdoing. The class
period covered by the settlement was February 2014 to December
2017. The case has been appealed and is now before the Supreme
Court.
Another recent class action lawsuit against Bank of America for
overdraft fees was recently settled for $75 million. Customers
alleged that BOA charged multiple NSF fees and overdraft fees for a
single transaction. The bank supposedly kept retrying the same
transaction over several days, recording NSF fees each time it was
rejected. The case is called Morris et al v. Bank of America NA,
and was filed in the Western District of North Carolina. In
addition to the settlement, BOA agreed not to charge multiple fees
on a single transaction for five years.
Another ongoing lawsuit against Bank of America accuses BOA of
charging deceptive transfer fees when customers transfer money from
their BOA accounts to their accounts at other banks. This case is
called Bruin, et al. v. Bank of America, NA and was filed in the
Southern District of New York.
How to Join a Class Action Lawsuit against Bank of America
If your claim against BOA is covered by the settlement criteria for
a current BOA class action settlement, then you can go to the
claims administration website and register your claim. You may also
have received a notice in the mail from Bank of America giving you
directions on how to register your claim. If you think BOA has
charged you improper overdraft fees, NSF fees, or other bank fees
that aren't covered in a current BOA settlement, then you may be
interested in starting your own overdraft fees lawsuit. [GN]
BAUER HOCKEY: Furloughs Employees Without Proper Pay, Barber Says
-----------------------------------------------------------------
Brooks Barber, individually and on behalf of all similarly
situated, Plaintiff v. Bauer Hockey, LLC, Defendant, Case No.
1:21-cv-00742-LM (D.N.H., Sept. 2, 2021) arises from the
Defendant's conduct of furloughing a number of its employees
without pay, including Plaintiff, from April 13, 2020, through June
8, 2020, in violation of the federal Fair Labor Standards Act and
New Hampshire law.
Due to the purported impact of the COVID-19 pandemic on Bauer's
business operations, Bauer allegedly furloughed a number of
employees without pay, including Plaintiff.
Mr. Barber was employed by Bauer as a marketing representative on
the Elite Athlete Services Team.
Bauer Hockey, LLC is a worldwide company that designs,
manufactures, markets, and sells hockey equipment.[BN]
The Plaintiff is represented by:
Pierre A. Chabot, Esq.
Marrielle Van Rossum, Esq.
DEVINE, MILLIMET & BRANCH, P.A.
111 Amherst Street
Manchester, NH 03101
E-mail: pchabot@devinemillimet.com
mvanrossum@devinemillimet.com
- and -
Brandon J. Verdream, Esq.
Andrew J. Ruxton, Esq.
CLARK HILL PLC
One Oxford Centre
301 Grant Street, 14th Floor
Pittsburgh, PA 15219
Telephone: (412) 394-2332
Facsimile: (412) 394-2555
BRAINSHARK INC: Wilk Sues Over Unauthorized Biometrics Collection
-----------------------------------------------------------------
LORI WILK, on behalf of herself and all others similarly situated,
Plaintiff v. BRAINSHARK, INC., Defendant, Case No. 1:21-cv-04794
(N.D. Ill., September 9, 2021) is a class action against the
Defendant for violations of the Illinois Biometric Information
Privacy Act.
According to the complaint, the Defendant captured, collected, or
otherwise obtained biometric facial geometry scan identifiers from
the Plaintiff and others similarly situated without adhering to
strict written disclosure and informed-consent procedures
established by the BIPA. The Defendant never provided the Plaintiff
any written materials stating that it was capturing, collecting, or
otherwise obtaining scans of the Plaintiff's facial geometry from
its software application and never obtained the Plaintiff's
informed written consent authorizing the capture, collection, or
use of scans of her facial geometry, says the suit.
Brainshark, Inc. is a privately held technology company, with its
principal office located in Waltham, Massachusetts. [BN]
The Plaintiff is represented by:
David Fish, Esq.
Mara Baltabols, Esq.
FISH POTTER BOLANOS, P.C.
200 East 5th Avenue, Suite 123
Naperville, IL 60563
Telephone: (630) 355-7590
E-mail: dfish@fishlawfirm.com
mara@fishlawfirm.com
- and –
Douglas M. Werman, Esq.
Zachary C. Flowerree, Esq.
WERMAN SALAS P.C.
77 W. Washington St., Suite 1402
Chicago, IL 60602
Telephone: (312) 419-1008
E-mail: dwerman@flsalaw.com
zflowerree@flsalaw.com
CALIFORNIA RENEWABLE: Naiman TCPA Suit Transferred to E.D. Cal.
---------------------------------------------------------------
The case styled as Sidney Naiman, Michele Dernay, individually and
on behalf of all others similarly situated v. California Renewable
Energy Program, LLC, Case No. 4:21-cv-04239, was transferred from
the U.S. District Court for the Northern District of California to
the U.S. District Court for the Eastern District of California on
Sept. 10, 2021.
The District Court Clerk assigned Case No. 2:21-cv-01630-TLN-JDP to
the proceeding.
The lawsuit is brought over alleged violation of the Telephone
Consumer Protection Act for Restrictions of Use of Telephone
Equipment.
California Renewable Energy Program --
https://www.californiarenewableenergy.org/ -- connects American
homeowners with government-funded energy savings programs.[BN]
The Plaintiffs are represented by:
Adrian R. Bacon, Esq.
Meghan George, Esq.
Todd M. Friedman, Esq.
LAW OFFICES OF TODD M. FRIEDMAN PC
21550 Oxnard St., Suite 780
Woodland Hills, CA 91367
Phone: (323) 306-4234
Fax: (866) 633-0228
Email: abacon@attorneysforconsumers.com
mgeorge@toddflaw.com
tfriedman@toddflaw.com
The Defendant is represented by:
Kurt Douglas Hendrickson, Esq.
NNOX LEMMON & ANAPOLSKY LLP
300 Capitol Mall, Suite 1125
Sacramento, CA 95814
Phone: (916) 498-9911
Fax: (916) 498-9991
Email: kurt@churchwellwhite.com
CASPER SLEEP: Bid to Junk Putative Class Suit in New York Pending
-----------------------------------------------------------------
Casper Sleep Inc. said in its Form 10-Q Report filed with the
Securities and Exchange Commission on August 16, 2021, for the
quarterly period ended June 30, 2021, that the motion to dismiss
the putative class action suit filed in the U.S. District Court for
the Eastern District of New York, is pending.
Beginning in June 2020, several putative class actions have been
filed in the U.S. District Court for the Eastern District of New
York and the New York State Supreme Court (New York County) by
certain of the company's stockholders against the company, its
directors, certain of its officers, and certain of the underwriters
of its initial public offering alleging violations of the Exchange
Act and/or the Securities Act in connection with the initial public
offering.
The cases are in preliminary stages.
Plaintiffs moved voluntarily to dismiss the lawsuit filed in New
York State Supreme Court.
The dismissal became effective upon the filing of a stipulation of
discontinuance on May 3, 2021.
As a result of the voluntary dismissal of the New York State
Supreme Court complaint, the Company notified the Federal Court it
would withdraw its pending motion to stay the Federal Action.
The stay motion has since been withdrawn, and the motion to dismiss
the Federal Action is scheduled to be fully briefed and filed on
September 21, 2021.
Casper "We believe these lawsuits are without merit and intend to
vigorously defend against them."
Casper Sleep Inc. manufactures home furnishing products. The
Company designs, produces, and markets range of mattresses, sheets,
pillows, duvet, and bed frames. Casper Sleep serves customers
worldwide. The company is based in New York, New York.
CENTRAL FREIGHT: Henry Labor Suit Seeks to Certify Classes
----------------------------------------------------------
In the class action lawsuit captioned as RICKEY HENRY, an
individual, on behalf of himself, and on behalf of all persons
similarly situated, v. CENTRAL FREIGHT LINES, INC.,a Corporation,
and DOES 1 through 50, Inclusive, Case No. 2:16-cv-00280-JAM-JDP
(E.D. Cal.), the Plaintiff asks the Court to enter an order:
1. certifying classes of individuals who worked for Central
Freight Lines, Inc. defined as:
"all individuals who are or previously worked for
Defendant 10 Central Freight Lines, Inc. as
truck drivers who were classified by Defendant as
independent contractors and who were residents of
California during the period from October 20, 2011 to the
present (Class Period);
-- "UCL ABC Class" asserting claims for restitution for
violations of the following sections of the Wage Order
to be decided under the ABC test;
-- "UCL Cal. Lab. Code Class" seeking restitution for 6
violations of the following provisions of the
California Labor Code to be decided pursuant to the
Borello test; and
-- "California Labor Code Subclasses" seeking damages for
violations of the following provisions of the
California Labor Code to be decided pursuant to the
Borello test;
2. appointing Blumenthal Nordrehaug Bhowmik De Blouw LLP as
counsel for the Class; and
3. appointing Plaintiff Rickey Henry as Class Representative
of the Class.
Central Freight Lines, Inc. provides transportation services.
A copy of the Plaintiff's motion to certify class dated Sept. 2,
2021 is available from PacerMonitor.com at https://bit.ly/3ho5za3
at no extra charge.[CC]
The Plaintiff is represented by:
Norman B. Blumenthal, Esq.
Kyle R. Nordrehaug, Esq.
Aparajit Bhowmik, Esq.
Piya Mukherjee, Esq.
BLUMENTHAL NORDREHAUG
BHOWMIK DE BLOUW LLP
2255 Calle Clara
La Jolla, CA 92037
Telephone: (858) 551-1223
Facsimile: (858) 551-1232
E-mail: norm@bamlawca.com
CHICAGO, IL: Court Certifies Class and Subclass in Smith v. CPD
---------------------------------------------------------------
In the case, DARNELL SMITH, et al., Plaintiffs v. CITY OF CHICAGO,
et al., Defendants, Case No. 15-cv-03467 (N.D. Ill.), Judge Andrea
R. Wood of the U.S. District Court for the Northern District of
Illinois, Eastern Division, granted in part and denied in part the
Plaintiffs' motion for certification of several classes.
Background
The Plaintiffs in the putative class action are African-American
and Hispanic residents of the City of Chicago who claim that they
were stopped and frisked by Chicago Police Department ("CPD")
officers without justification in violation of their rights under
the Fourth Amendment to the United States Constitution. They have
sued the City, former Chicago Police Superintendent Garry McCarthy,
and numerous individual CPD officers under 42 U.S.C. Section 1983
for the alleged constitutional violations.
In their Sixth Amended Complaint, the Plaintiffs allege that
Defendants have maintained a policy or custom of unconstitutional
stops and frisks of Chicago residents by the CPD, conducted without
reasonable articulable suspicion in violation of the Fourth
Amendment and the principles set forth in Terry v. Ohio, 392 U.S. 1
(1968). In Terry, the Supreme Court held that police officers are
permitted to conduct a brief investigatory stop (or Terry stop)
only when they have a reasonable suspicion that an individual has
committed, is committing, or is about to commit a crime. The
Plaintiffs contend that CPD officers nonetheless regularly detain
people without reasonable suspicion, and moreover, the CPD has long
been aware of this problem but has failed to address it
adequately.
It is the Plaintiffs' second attempt at class certification. They
Plaintiffs previously sought certification of six plaintiff classes
under Rule 23(b)(3), seeking money damages. Specifically, the
Plaintiffs sought certification of two Rule 23(b)(3) classes: (1) a
Fourth Amendment Class consisting of all persons subjected to
investigatory stops by the CPD at any time since April 20, 2013,
which resulted in creation of a contact card; and (2) a similar but
more limited class consisting of all African Americans and
Hispanics1 subjected to investigatory stops by the CPD at any time
since April 20, 2013, which resulted in the creation of a contact
card.
In the alternative, the Plaintiffs sought certification of four
narrower Rule 23(b)(3) classes: (3) all persons who were
encountered by the CPD for enforcement of the Gang and Narcotics
Loitering Ordinance at any time since April 20, 2013, which
resulted in the creation of a contact card; (4) all African
Americans and Hispanics who were encountered by the CPD for
enforcement of the Gang and Narcotics Loitering Ordinance at any
time since April 20, 2013, which resulted in the creation of a
contact card; (5) all persons subjected to an investigatory stop by
the CPD at any time since April 20, 2013, which resulted in the
creation of a contact card that contains no narrative; and (6) all
African Americans and Hispanics who were subjected to an
investigatory stop by the CPD at any time since April 20, 2013,
which resulted in the creation of a contact card that contains no
narrative.
As a final alternative, the Plaintiffs sought certification of a
Rule 23(c)(4) issues-only class addressing questions regarding
whether the CPD's policies and practices were intended to target
minorities and whether CPD policymakers were deliberately
indifferent to the consequences of the investigatory stop
policies.
In denying certification of the proposed Rule 23(b)(3) classes, the
Court found that the Plaintiffs had not shown that their proposed
classes met the commonality requirement under Rule 23(a)(2). In a
separate ruling, the Court also largely granted the Defendants'
motion to exclude testimony offered by the Plaintiffs' expert
witnesses. That testimony concerned more than 3 million contact
cards produced in discovery, which the Plaintiffs hoped to use to
show that the CPD committed widespread unconstitutional stops.
But the Court held that the conclusions drawn by the Plaintiffs'
proposed experts improperly offered case-determinative legal
conclusions or findings reserved for the factfinder. It similarly
held that the Plaintiffs' proposed expert testimony on the
reasonableness of stops described in sample contact cards would not
be helpful to the jury. Ultimately, the only expert testimony the
Court allowed at this stage in the proceedings involved summaries
describing how many contact cards matched various search
parameters. Notably, the Plaintiffs rely on the summaries in
connection with the present motion to show racial disparities in
the CPD's stop and frisk program.
The Plaintiffs now have moved again for class certification. This
time they seek certification of three classes under Rule 23(b)(2),
seeking declaratory and injunctive relief; renew in part their
motion for class certification under Rule 23(b)(3), seeking
damages; and again move in the alternative for certification of an
issues-only class under Rule 23(c)(4). The Plaintiffs' proposed
classes are similar and in some cases substantially identical to
the proposed classes from their initial motion. Because the Court
rejected those classes based on a lack of commonality -- a
requirement for Rule 23(b)(2) and Rule 23(b)(3) classes alike -- a
threshold question for the Court is whether the Plaintiffs'
arguments merit revisiting the commonality issue.
Analysis
Based on the data and evidence presented, Judge Wood concludes that
the Plaintiffs have made a sufficient showing for purposes of class
certification that the CPD deployed a centralized stop and frisk
program during the times relevant to the case. She says, the rapid
surges and declines in stops, the use of CompStat to drive
investigatory stops, the standardized requirements and reporting,
and the active monitoring of investigatory stops are all indicative
of a centralized program.
Likewise, the Judge finds that the Plaintiffs have made a
sufficient showing that the City knew, or should have known, that
its stop and frisk program was associated with a risk of widespread
Fourth Amendment violations. The evidence shows that many contact
cards contained facially insufficient justifications for
investigatory stops and that the CPD's own audits show a continuing
(and worsening) pattern of unconstitutional stops under the ISR
system. Moreover, the Plaintiffs have adduced evidence that CPD's
response to this problem actually facilitated the coverup of
unconstitutional stops, as evidenced by supervisors providing false
information to officers to give stops the appearance of
constitutionality.
I. Proposed Rule 23(b)(2) Classes
The Plaintiffs seek certification of three classes or subclasses
under Rule 23(b)(2):
a. Fourth Amendment Class: All persons who, since April 20,
2013, have been, or in the future will be, subjected to an
investigatory stop by the Chicago Police Department which resulted
in the creation of a Contact Information Card or Investigatory Stop
Report.
b. Fourteenth Amendment Subclass: All African Americans and
Hispanics who, since April 20, 2013, have been, or in the future
will be, subjected to an investigatory stop by the Chicago Police
Department which resulted in the creation of a Contact Information
Card or Investigatory Stop Report.
c. Fourth Amendment Loitering Subclass: All persons who, since
April 20, 2013, have been, or in the future will be, encountered by
the Chicago Police Department, resulting in the creation of a
Contact Information Card or Investigatory Stop Report and where the
listed contact type was GANGLTR, defined by the CPD as Gang and
Narcotics-Related Loitering.
For a proposed class to be certified, Plaintiffs must establish
each Rule 23 requirement by the preponderance of the evidence.
Class certification under Rule 23(b)(2) would allow class members
to seek "final injunctive relief respecting the class as a whole."
A. Numerosity
Because the Plaintiffs' class definitions rely on contact cards and
Investigatory Stop Reports, and the smallest such class contains
tens of thousands of members, Judge Wood holds that the Plaintiffs
easily clear the numerosity requirement for each of the three
proposed 23(b)(2) classes.
B. Commonality
While the Plaintiffs must glue their claims together, they need not
show that all, or even most, the class members hold winning claims.
The Plaintiffs raise several common questions.
1. Fourth Amendment Class
The Plaintiffs offer two common questions for the Fourth Amendment
Class's claims: (1) does the CPD have a centralized practice of
performing suspicionless stops and frisks, and (2) do flaws in the
CPD's systems of training, supervision and accountability
contribute to its widespread practice of unlawful stop and frisks?
Judge Wood opines that the Plaintiffs have provided sufficient
evidence of a common question of whether supervision and training
deficiencies caused the alleged Fourth Amendment violations. She
says, the Defendants are welcome to defend against these claims by
contending that the Fourth Amendment violations did not occur or
that the violations were not caused by supervision and training
deficiencies, but such a defense does not defeat commonality for
purposes of certifying a Rule 23(b)(2) class.
2. Fourteenth Amendment Class
The Plaintiffs propose two common questions for purposes of their
proposed Fourteenth Amendment Class: (1) Is the "Racial Profiling
General Order" unconstitutional? and (2) Is the practice of
stopping "the right people" a type of indirect racial profiling?
Judge Wood finds no merit in the Plaintiffs' first proposed
question. Without something more linking the CPD's alleged policy
deficiencies to unconstitutional conduct, the Juduge cannot find a
common question. As to the second question, the Judge cannot find
that the Plaintiffs have met their burden of demonstrating a common
question supporting certification of the proposed Fourteenth
Amendment subclass. She does not suggest that the Plaintiffs must
prove intentional racial discrimination to justify class
certification; instead, they must at least lay out the channels of
a legally viable claim and provide sufficient evidence to establish
a common question. If the only element of an Equal Protection Claim
were disparate impact, the Plaintiffs would have easily met the
burden of establishing a common question; as it stands, the
Plaintiffs have not met their burden.
3. Fourth Amendment Loitering Subclass
Finally, the Plaintiffs propose the common question of whether the
CPD's policies for enforcing the Gang and Narcotics-Related
Loitering Ordinances violate the Fourth Amendment. They point to an
"Investigatory Stop Pocket Guide" that the CPD issued to officers
to instruct them on, among other things, how to enforce the Gang
and Narcotics Loitering Ordinance. The Defendants object that this
Court previously denied certification of a similar class because
the constitutionality of any given investigatory stop was an
individualized question not susceptible to classwide resolution.
Judge Wood holds that the Plaintiffs' new theory and evidence
establishes a common question among the proposed class of whether
the CPD's enforcement policies are constitutional; she gives no
opinion at this stage as to whether the Plaintiffs will ultimately
prevail on their theory.
4. Prohibition on Across-the-Board Classes
Over time, courts have become less amenable to "across-the-board"
classes, which involve "structural injunctions taking control of
executive functions." The basic principle is that the judiciary
should not attempt to sit in place of the executive.
Still, Judge Wood does not conclude that their proposed class
should therefore be denied. An "across-the-board" class is one
where the plaintiffs seek to challenge a broader set of policies
than those from which they claim injury. The Plaintiffs do not
cross the line into proposing an across-the-board class because
their three proposed classes involve specific and discrete stop and
frisk practices. The Plaintiffs only seek to represent persons who
have suffered similar injuries. While they may not be entitled to
some of the relief they seek, if they prove that the CPD has
implemented centralized stop and frisk policies that violate the
Fourth and Fourteenth amendments, the Judget can fashion an
appropriately limited remedy.
C. Typicality
The Judge states that some class members' Fourth Amendment rights
were not violated while other class members may have experienced
more clear-cut Fourth Amendment violations than the named
Plaintiffs. But the Plaintiffs' claims squarely target the same
system of supervision and training that allegedly affected all
class members. The Plaintiffs therefore meet the typicality
requirement.
D. Adequacy
The Judge similarly finds that the Plaintiffs' counsel are
experienced in civil rights litigation and class action litigation,
and have and will continue to invest considerable time and effort
in bringing the Plaintiffs' claims forward. The Plaintiffs' counsel
thus meet the Rule 23(a)(4) adequacy requirements.
E. Rule 23(b)(2) Requirements
As the Plaintiffs seek the same relief for all members -- namely,
policy changes and monitoring to bring CPD's stop and frisk program
into compliance with the Fourth Amendment-- this standard has been
met, Judge Wood finds. While the Defendants argue that the
Plaintiffs lack standing because contact cards are no longer used,
the Judge holds that true targets of the Plaintiffs' claims are the
CPD's stop and frisk policies, not the specific form used to record
those stops.
In sum, because the Plaintiffs' proposed Rule 23(b)(2) Fourth
Amendment Class and Fourth Amendment Loitering Subclass both meet
the requirements for certification, Judge Wood certifies the
classes.
II. Proposed Rule 23(b)(3) and 23(c)(4) Classes
As noted, the Plaintiffs previously moved for certification of
various classes under Rules 23(b)(3) and 23(c)(4), which the Court
denied. Now, the Plaintiffs make another attempt. Class
certification decisions are "inherently tentative" and may be
revisited by the Court as appropriate. Judge Wood considers whether
the Plaintiffs have offered a sufficiently distinct legal theory or
compelling new facts for her to revise the Court's previous
analysis.
A. Rule 23(b)(3) Class
The Plaintiffs ask the Court to certify a Rule 23(b)(3) class
defined consistently with their Rule 23(b)(2) Fourth Amendment
Loitering Subclass, consisting of "all persons who, since April 20,
2013, have been, or in the future will be, encountered by the
Chicago Police Department, resulting in the creation of a Contact
Information Card or Investigatory Stop Report where the contact
type is designated as "GANGLTR" or "Gang and Narcotics-Related
Loitering."
Judge Wood's analysis of the Rule 23(a) factors applies equally
here; the Plaintiffs have established numerosity, commonality,
typicality, adequacy, and ascertainability for the proposed class,
based on the discussed evidence and argument. However, she finds
that common questions of law and fact do not predominate.
The Judge finds that the Plaintiffs miss a key step in their
predominance analysis, which is that even if the Court found that
the gang loitering policy required unconstitutional investigatory
stops, it would still be necessary to analyze any given stop to
determine whether it was, in fact, unconstitutional. Even if the
City's policy required unconstitutional stops and frisks, a person
could still consent to a police officer's interview (defeating the
"seizure" prong) and the officer could still make a stop with
reasonable articulable suspicion of criminal activity (defeating
the "reasonable articulable suspicion" prong.) Even after proving
that the policy required police officers to take unconstitutional
actions, the Judge holds the Plaintiffs would be left with tens of
thousands of individualized liability and damages determinations.
Hence, the Plaintiffs' proposed Rule 23(b)(3) class will not be
certified.
B. Rule 23(c)(4) Class
Finally, the Plaintiffs propose a 23(c)(4) issues-only class to
resolve (1) whether the gang loitering policy requires stops
without reasonable articulable suspicion, and (2) whether such a
requirement is constitutional. The Seventh Circuit has acknowledged
that issues classes may be appropriately certified where "there are
genuinely common issues the accuracy of the resolution of which is
unlikely to be enhanced by repeated proceedings." Efficiency is the
key consideration in this analysis.
In the case, as before, Judge Wood finds no efficiencies to be
gained in certifying an issues-only class, considering the
predominance of individualized questions in establishing
liability.
Conclusion
For these reasons, Judge Wood granted in part and denied in part
the Plaintiffs' motion for class certification. She granted
certification of the Plaintiffs' proposed Rule 23(b)(2) Fourth
Amendment Class and Fourth Amendment Loitering Subclass. The Judge
denied certification of the Plaintiffs' proposed Rule 23(b)(2)
Fourteenth Amendment Subclass and proposed Rule 23(b)(3) and
23(c)(4) classes.
A full-text copy of the Court's Aug. 31, 2021 Memorandum Opinion &
Order is available at https://tinyurl.com/xrxhndk8 from
Leagle.com.
CONTACTUS LLC: Pyfrom Sues Over Failure to Pay Proper OT Wages
--------------------------------------------------------------
KHADEZA PYFROM, on behalf of herself and others similarly situated,
Plaintiffs v. CONTACTUS, LLC d/b/a CONTACTUS COMMUNICATIONS, and
CONTACTUS TECHNOLOGY, LTD., d/b/a CONTACTUS COMMUNICATIONS,
Defendants, Case No. 2:21-cv-04293-EAS-CMV (S.D. Ohio, August 31,
2021) is a collective and class action complaint brought against
the Defendants for their alleged unlawful pay practices and
policies that violated the Fair Labor Standards Act and the Ohio
Minimum Fair Wage Standards Act.
The Plaintiff has worked for the Defendants as a customer support
representative and then later worked for the Defendants as a remote
support representative from her home.
According to the complaint, the Plaintiff and other similarly
situated support associates, customer service representatives,
other call center positions, and/or in-home support positions at
the Defendants' call centers in Ohio and throughout the U.S.
routinely worked 40 or more hours per workweek. However, the
Defendants failed to count work performed by them as "hours worked"
and this unpaid work performed by the them was integral and
indispensable part of their other principal activities. As a
result, the Defendants failed to pay all overtime wages due for
work performed. In addition, the Defendant failed to keep records
of all of the hours worked each workweek, the suit says.
The Corporate Defendants provide call center services. [BN]
The Plaintiff is represented by:
Matthew J.P. Coffman, Esq.
COFFMAN LEGAL, LLC
1550 Old Henderson Rd., Suite #126
Columbus, OH 43220
Tel: (614) 949-1181
Fax: (614) 386-9964
E-mail: mcoffman@mcoffmanlegal.com
- and –
Peter Contreras, Esq.
CONTRERAS LAW, LLC
1550 Old Henderson Road, Suite 126
Tel: (614) 787-4878
Fax: (614) 957-7515
E-mail: peter.contreras@contrerasfirm.com
COOKWARE COMPANY: Crumwell Files ADA Suit in S.D. New York
----------------------------------------------------------
A class action lawsuit has been filed against The Cookware Company
(USA), LLC. The case is styled as Denise Crumwell, on behalf of
herself and all other persons similarly situated v. The Cookware
Company (USA), LLC, Case No. 1:21-cv-07561-VSB (S.D.N.Y., Sept. 9,
2021).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
The Cookware Company USA, LLC -- https://cookware-co.com/ --
provides cooking appliances. The Company offers fry, pancake,
grill, casser rolls, sauce, and other non-stick pansV.[BN]
The Plaintiff is represented by:
Jeffrey Michael Gottlieb, Esq.
Michael A. LaBollita, Esq.
GOTTLIEB & ASSOCIATES
150 E. 18 St., Suite PHR
New York, NY 10003
Phone: (212) 228-9795
Email: nyjg@aol.com
michael@gottlieb.legal
CV SCIENCES: Colette Putative Class Suit Remains Stayed
-------------------------------------------------------
CV Sciences, Inc. said in its Form 10-Q Report filed with the
Securities and Exchange Commission on August 16, 2021, for the
quarterly period ended June 30, 2021, that the putative class
action suit initiated by Michelene Colette remains stayed.
On December 3, 2019, Michelene Colette and Leticia Shaw filed a
putative class action complaint in the Central District of
California, alleging the labeling on the Company's products
violated the Food, Drug, and Cosmetic Act of 1938.
On February 6, 2020, the Company filed a motion to dismiss the
Colette Complaint.
Instead of opposing the company's motion, the plaintiffs elected to
file an amended complaint on February 25, 2020.
On March 11, 2020, the company filed a motion to dismiss the
amended complaint. The court issued a ruling on May 22, 2020 that
stayed this proceeding in its entirety and dismissed part of the
amended complaint.
The portion of the proceeding that is stayed will remain stayed
until the U.S. Food and Drug Administration promulgates rules that
govern cannabidiol products (the "FDA Rules").
When such FDA Rules are promulgated, the plaintiffs will be allowed
to ask the court to reopen the proceeding.
Management intends to vigorously defend the allegations.
CV Sciences, Inc. operates as a life science company. It operates
through two segments, Consumer Products and Specialty
Pharmaceuticals. The company was formerly known as CannaVest Corp.
and changed its name to CV Sciences, Inc. in January 2016. CV
Sciences, Inc. was founded in 2010 and is based in Las Vegas,
Nevada.
CV SCIENCES: Continues to Defend Smith Class Suit
-------------------------------------------------
CV Sciences, Inc. said in its Form 10-Q Report filed with the
Securities and Exchange Commission on August 16, 2021, for the
quarterly period ended June 30, 2021, that the company continues to
defend itself from a purported class action suit filed by David
Smith.
On August 24, 2018, David Smith filed a purported class action
complaint in Nevada District Court alleging certain misstatements
in the Company's public filings that led to stock price
fluctuations and financial harm.
Several additional individuals filed similar claims, and the Smith
Complaint and each of the other suits all arise out of a report
published by Citron Research on Twitter on August 20, 2018,
suggesting that the Company misled investors by failing to disclose
that the Company's efforts to secure patent protection for CVSI-007
had been "finally rejected" by the United States Patent and
Trademark Office ("USPTO").
On November 15, 2018, the court consolidated the actions and
appointed Richard Ina, Trustee for the Ina Family Trust, as Lead
Plaintiff for the consolidated actions.
On January 4, 2019, Counsel for Lead Plaintiff Richard Ina, Trustee
for the Ina Family Trust, filed a "consolidated amended complaint".
On March 5, 2019, the company filed a motion to dismiss the action.
The Court denied the motion to dismiss on December 10, 2019, and
the parties have commenced discovery in the action with a discovery
cutoff date of August 23, 2021.
CV Sciences, Inc. operates as a life science company. It operates
through two segments, Consumer Products and Specialty
Pharmaceuticals. The company was formerly known as CannaVest Corp.
and changed its name to CV Sciences, Inc. in January 2016. CV
Sciences, Inc. was founded in 2010 and is based in Las Vegas,
Nevada.
CYTOCOM INC: Litwin Putative Class Suit Dismissed
-------------------------------------------------
Cytocom, Inc. said in its Form 10-Q Report filed with the
Securities and Exchange Commission on August 16, 2021, for the
quarterly period ended June 30, 2021, that the Delaware Court of
Chancery entered an order dismissing the putative class action suit
entitled, Litwin v. Cleveland BioLabs, Inc. et al., Case 2021-0242
On March 19, 2021, a putative class action complaint, captioned
Litwin v. Cleveland BioLabs, Inc. et al., Case 2021-0242, was filed
in the Delaware Court of Chancery in connection with the Merger.
The Litwin Action names as defendants Cleveland BioLabs, each
director on the Cleveland BioLabs board of directors, and the Vice
President of Finance of Cleveland BioLabs. The complaint in the
Litwin Action alleges that Defendants omitted and/or provided
misleading information in the registration statement on Form S-4
filed with the SEC in connection with the Merger, of which this
proxy statement/prospectus forms a part, in breach of their
fiduciary duties.
The Litwin Action seeks, among other things, an injunction
preventing the closing of the Merger, rescission of the merger if
it is consummated, the dissemination by Cleveland BioLabs of a
revised registration statement on Form S-4 and an award of
plaintiffs' attorneys' and experts' fees.
Plaintiff in the Litwin Action has filed a motion for expedited
proceedings, which Defendants have opposed. Plaintiff's motion for
expedited proceedings was granted in part and denied in part by the
court on April 30, 2021.
Defendants have also filed a motion to dismiss the Litwin Action.
On July 7, 2021, Plaintiff filed a stipulation and proposed order
voluntarily dismissing the case, but reserving the right to seek
attorneys' fees.
On July 8, 2021, the Delaware Court of Chancery entered an order
dismissing the case, but reserving jurisdiction to determine
whether to award Plaintiff's counsel any fees, should Plaintiff's
counsel file a motion for such.
Cytocom, Inc. (formerly known as Cleveland BioLabs, Inc.) is a
clinical-stage biopharmaceutical company developing novel
immunotherapies targeting autoimmune, neutropenia/anemia, emerging
viruses and cancers based on a proprietary platform designed to
rebalance the body's immune system and restore homeostasis. The
company also has one of the largest platforms of toll-like
receptors (TLR4, TLR5 and TLR9) in the biopharmaceutical industry,
addressing conditions such as radiation sickness and cancer
treatment side effects.
DESSY GROUP: Crumwell Files ADA Suit in S.D. New York
-----------------------------------------------------
A class action lawsuit has been filed against Dessy Group Apparel,
LLC. The case is styled as Denise Crumwell, on behalf of herself
and all other persons similarly situated v. Dessy Group Apparel,
LLC, Case No. 1:21-cv-07604 (S.D.N.Y., Sept. 10, 2021).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
The Dessy Group -- https://dessy.com/ -- is a leading manufacturer
of bridesmaid's dresses and bridal apparel.[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
DIAMOND RESORTS: Has Until Oct. 2 to Respond to TAC in "Zwicky"
---------------------------------------------------------------
In the class action lawsuit captioned as Zwicky v. Diamond Resorts
Incorporated, et al., Case No. 2:20-cv-02322 (D. Ariz.), the Hon.
Judge Diane J. Humetewa entered an order that:
1. The joint motion to extend deadlines to respond to third
amended complaint (first request) and to complete class
certification discovery (first request) is granted.
2. The Defendants, Diamond Resorts International, Inc.,
Diamond Resorts Management, Inc., Troy Magdos, and Kathy
Wheeler shall have until October 2, 2021 to file their
answer or other response to the Third Amended Complaint.
3. All parties shall have until October 15, 2021, to complete
class certification discovery.
The suit alleges violation of the Racketeer Influenced and Corrupt
Organizations (RICO) Act.
Diamond Resorts is a timeshare company headquartered in Las Vegas,
Nevada, with regional offices in Orlando, Florida and Lancaster,
United Kingdom.[CC]
DIAMOND RESPIRATORY: JKCI Seeks to Certify TCPA Class
-----------------------------------------------------
In the class action lawsuit captioned as JEFFREY KATZ CHIROPRACTIC,
INC., a California corporation, individually and on behalf of all
others similarly situated, v. DIAMOND RESPIRATORY CARE, INC., a
California corporation, Case No. 3:20-cv-04108-CRB (N.D. Cal.), the
Plaintiff asks the Court to enter an order certifying an
Unsolicited Fax Class:
"All persons who, from the date June 22, 2016, through the
date notice is sent to the Class, received at least one
telephone facsimile message, where prior express permission
or invitation to send the faxes was supposedly obtained by
Diamond through its general sales process."
The Plaintiff alleges that violates the Telephone Consumer
Protection Act, as amended by the Junk Fax Prevention Act.
Diamond is a medical equipment and supplies company. Seizing an
opportunity to profit off the COVID-19 pandemic, Diamond inundated
businesses with thousands of unsolicited faxes advertising the sale
of hand sanitizer -- a product that, at the time, was in short
supply, the suit says.
The Plaintiff contends that it received one of these faxes, and
discovery has revealed that Diamond sent the same unsolicited fax
to thousands of others in violation of the
JFPA.
A copy of the Plaintiff's motion to certify class dated Sept. 2,
2021 is available from PacerMonitor.com at https://bit.ly/3tw9zdz
at no extra charge.[CC]
The Plaintiff is represented by:
Rebecca Davis, Esq.
LOZEAU DRURY LLP
1939 Harrison St., Suite 150
Oakland, CA 94607
Telephone: (510) 836-4200
Facsimile: (510) 836-4205
E-mail: rebecca@lozeaudrury.com
- and -
Patrick H. Peluso, Esq.
Taylor T. Smith, Esq.
WOODROW & PELUSO, LLC
3900 East Mexico Ave., Suite 300
Denver, CO 80210
Telephone: (720) 213-0676
Facsimile: (303) 927-0809
E-mail: ppeluso@woodrowpeluso.com
tsmith@woodrowpeluso.com
DIDI GLOBAL: Faces Hu Suit Over Share Price Drop
------------------------------------------------
TSENGKONG HU, Individually and on behalf of all others similarly
situated, Plaintiff v. DIDI GLOBAL INC., WILL WEI CHENG, JEAN QING
LIU, STEPHEN JINGSHI ZHU, ALAN YUE ZHUO, ZHIYI CHEN, MARTIN CHI
PING LAU, KENTARO MATSUI, ADRIA PERICA, DANIEL YONG ZHANG GOLDMAN
SACHS (ASIA) L.L.C., MORGAN STANLEY & CO. LLC, J.P. MORGAN
SECURITIES LLC, BOFA SECURITIES, INC., BARCLAYS CAPITAL INC., CHINA
RENAISSANCE SECURITIES (HONG KONG) LIMITED, CHINA INTERNATIONAL
CAPITAL CORPORATION HONG KONG SECURITIES LIMITED, CITIGROUP GLOBAL
MARKETS INC., GUOTAI JUNAN SECURITIES (HONG KONG) LIMITED, HSBC
SECURITIES (USA) INC., UBS SECURITIES LLC, BOCI ASIA LIMITED, BOCOM
INTERNATIONAL SECURITIES LIMITED, CCB INTERNATIONAL CAPITAL
LIMITED, CLSA LIMITED, CMB INTERNATIONAL CAPITAL LIMITED, FUTU
INC., ICBC INTERNATIONAL SECURITIES LIMITED, MIZUHO SECURITIES USA
LLC, TIGER BROKERS (NZ) LIMITED, COLLEEN A. DE VRIES, and COGENCY
GLOBAL, INC., Defendants, Case No. 2:21-cv-07104-FLA-PLA (C.D.
Cal., Sept. 2, 2021) is a securities class action on behalf of
persons or entities who purchased or otherwise acquired publicly
traded DiDi securities (1) pursuant and/or traceable to the
registration statement and related prospectus issued in connection
with DiDi's June 30, 2021 initial public offering and/or (2)
between June 30, 2021 and July 21, 2021, inclusive, seeking to
recover compensable damages caused by Defendants' violations of the
Securities Act of 1933 and violations of Sections 10(b) and 20(a)
of the Securities Exchange Act of 1934.
On June 30, 2021, Defendants held an IPO, issuing approximately
316,800,000 American Depositary Shares to the investing public at
$14.00 per ADS, pursuant to the Registration Statement.
According to the complaint, the Defendants' statements issued in
connection with the IPO were materially false and/or misleading
because they misrepresented and failed to disclose adverse facts
pertaining to the Company's business, operations and prospects,
which were known to Defendants or recklessly disregarded by them.
Specifically, Defendants made false and/or misleading statements
and/or failed to disclose that: (1) the Cyberspace Administration
of China (CAC) urged Defendant DiDi to delay its IPO; (2) Defendant
DiDi "had the problem of collecting personal information in
violation of relevant PRC laws and regulations"; (3) Defendant DiDi
could not guarantee an acceptable level of data security; (4) due
to the foregoing, Defendant DiDi would face "serious, perhaps
unprecedented, penalties" from relevant authorities; (5) DiDi and
its many apps would face an imminent cybersecurity review by the
CAC, which could lead to removal of Didi's apps from app stores;
and (6) as a result, Defendants' statements about the Company's
business, operations, and prospects were materially false and
misleading and/or lacked a reasonable basis, says the suit.
On this news, the Company's ADS price fell $3.44 per ADS, nearly
30%, over the next two trading days to close at $8.06 per ADS on
July 23, 2021, further damaging investors, the suit alleges.
The Plaintiff purchased the Company's securities at artificially
inflated prices pursuant to the IPO and during the Class Period.
DiDi is purportedly a mobility technology platform, providing ride
hailing and other services primarily in the People's Republic of
China, Brazil, Mexico and internationally.[BN]
The Plaintiff is represented by:
Betsy C. Manifold, Esq.
Rachele R. Byrd, Esq.
Marisa C. Livesay, Esq.
Brittany N. Dejong, Esq.
WOLF HALDENSTEIN ADLER FREEMAN & HERZ LLP
Symphony Towers 750 B Street, Suite 1820
San Diego, CA 92101
Los Angeles, CA 90071
Telephone: (619) 239-4599
E-mail: manifold@whafh.com
byrd@whafh.com
livesay@whafh.com
dejong@whafh.com
DMD MANAGEMENT: Spencer Seeks STNAs' Unpaid Overtime Wages
----------------------------------------------------------
The case, ALISA SPENCER, on behalf of herself and others similarly
situated, Plaintiff v. DMD MANAGEMENT, INC. d/b/a LEGACY HEALTH
SERVICES, Defendant, Case No. 1:21-cv-01698 (N.D. Ohio, August 31,
2021) challenges the Defendants' alleged unlawful policies and
practices that violated the Fair Labor Standards Act and the Ohio
Minimum Fair Wage Standards Act.
The Plaintiff, who was employed by the Defendant as a State Tested
Nursing Assistant (STNA), asserts that despite working more than 40
hours per week, the Defendant failed to properly pay her and other
similarly situated STNAs their lawfully earned overtime
compensation at the rate of one and one-half times their regular
rate of pay for all hours worked in excess of 40 per workweek. This
is due to the Defendant's unlawful practice of automatically
deducting a 30-minute meal break from their daily work hours even
when they did not take a break and/or their breaks were interrupted
by work duties, the suit says.
The Plaintiff brings this complaint as a class action to recover
unpaid overtime wages, as well as liquidated damages equal in
amount of unpaid wages, pre- and post-judgment interest at the
statutory rate, costs and attorney's fees, and other relief as the
Court deems equitable and just.
DMD Management, Inc. d/b/a Legacy Health Services operates nursing
homes and short-term rehabilitation facilities. [BN]
The Plaintiff is represented by:
Robi J. Baishnab, Esq.
NILGES DRAHER LLC
1360 E. 9th St., Suite 808
Cleveland, OH 44114
Tel: (216) 230-2955
Fax: (330) 754-1430
E-mail: rbaishnab@ohlaborlaw.com
- and –
Shannon M. Draher, Esq.
Hans A. Nilges, Esq.
NILGES DRAHER LLC
7266 Portage St., N.W., Suite D
Massillon, OH 44646
Tel: (330) 470-4428
Fax: (330) 754-1430
E-mail: sdraher@ohlaborlaw.com
hans@ohlaborlaw.com
F21 OPCO: Faces Benson Suit Over Failure to Pay Proper Wages
------------------------------------------------------------
GIANA BENSON, and on behalf of the general public as private
attorneys general, Plaintiffs v. F21 OPCO, LLC dba FOREVER 21, a
Delaware Corporation; and DOES 1-10, inclusive, Defendants, Case
No. 37-2021-00037258-CU-OE-CTL (Cal. Sup. Ct., August 31, 2021)
brings this complaint against the Defendants to recover penalties
pursuant to the Private Attorneys General Act of 2004.
The Plaintiff has worked for the Defendants as a Brand Ambassador
from approximately August 2018 through March 23, 2021.
The Plaintiff asserts these claims:
-- The Defendants failed to pay all lawful wages owed to him
and all aggrieved employees;
-- The Defendants failed to provide them lawful uninterrupted
meal periods and rest breaks and to pay them premium wages for
every day said meal periods and rest breaks;
-- The Defendants failed to properly reimburse them for
business expenses;
-- The Defendants failed to timey pay them vested vacation pay
upon termination of employment;
-- The Defendants failed to provide them with accurate
itemized wage statements; and
-- The Defendants failed to timely pay them all earned wages
upon separation of employment.
F21 OPCO, LLC operates retail stores throughout the State of
California. [BN]
The Plaintiff is represented by:
James R. Hawkins, Esq.
Samantha A. Smith, Esq.
JAMES HAWKINS, APLC
9880 Research Drive, Suite 200
Irvine, CA 92618
Tel: (949) 387-7200
Fax: (949) 387-6676
E-mail: James@jameshawkinsaplc.com
Samantha@jameshawkinsaplc.com
FORTRESS BIOTECH: Cushman Class Suit Dismissed w/o Prejudice
------------------------------------------------------------
Fortress Biotech, Inc. said in its Form 10-Q Report filed with the
Securities and Exchange Commission on August 16, 2021, for the
quarterly period ended June 30, 2021, that the Company received
notice that the claim in the purported securities class action suit
entitled, Cushman v. Fortress Biotech, Inc., et al., was dismissed
without prejudice.
In November 2020, a purported securities class action complaint was
filed in the U.S. District Court for the Eastern District of New
York, putatively on behalf of all shareholders who purchased or
otherwise acquired Fortress securities between December 11, 2019
and October 9, 2020 (the "Class Period"), and who were allegedly
damaged in connection therewith.
The case was captioned Cushman v. Fortress Biotech, Inc., et al.,
Case No. 1:20-cv-05767, and named as defendants the Company and two
of its officers.
The complaint alleged that, throughout the Class Period, the
Company made false and/or misleading statements and/or failed to
disclose various facts and circumstances with respect to a New Drug
Application filed by Avenue Therapeutics, Inc., the company's
partner company, regarding IV Tramadol, Avenue's lead product
candidate.
The complaint alleged violations of the Securities Exchange Act of
1934 and Rule 10b-5 promulgated thereunder, and sought damages as
well as attorneys' fees, expert fees and other costs.
On June 23, 2021 the Company received notice that the claim was
dismissed without prejudice.
Fortress Biotech, Inc. is a biopharmaceutical company dedicated to
acquiring, developing and commercializing pharmaceutical and
biotechnology products and product candidates, which the company do
at the Fortress level, at the company's majority-owned and
majority-controlled subsidiaries and joint ventures, and at
entities the company founded and in which it maintains significant
minority ownership positions. The company is based in New York, New
York.
FREEDOM MORTGAGE: Gresses Seek Initial Approval of Settlement
-------------------------------------------------------------
In the class action lawsuit captioned as MICHAEL J. GRESS and
BRANDY L. GRESS, on behalf of themselves and all others similarly
situated, v. FREEDOM MORTGAGE CORPORATION, Case No.
1:19-cv-00375-RDM (M.D. Pa.), the Plaintiffs ask the Court to enter
an order:
1. preliminarily approving the proposed Agreement;
2. certifying the proposed class described in the Agreement
for purposes of settlement;
3. designating them as the class representatives, and
appointing their counsel as class counsel;
4. directing that notice be issued to the class under the
terms of the Agreement, including the form and procedure
set out there;
5. scheduling dates for the parties and class members as set
out in the proposed order; and
6. setting a hearing date for the final approval of the
Agreement and hearing Plaintiffs' motion for an award of
attorneys' fees and costs.
A copy of the Plaintiffs' motion dated Sept. 2, 2021 is available
from PacerMonitor.com at https://bit.ly/2YONj3d at no extra
charge.[CC]
The Plaintiffs are represented by:
D. Greg Blankinship, Esq.
Todd S. Garber, Esq.
Bradley F. Silverman, Esq.
FINKELSTEIN, BLANKINSHIP,
FREI-PEARSON & GARBER, LLP
One North Broadway Suite 900
White Plains, NY 10601
Telephone: (914) 298-3290
Facsimile: (914) 908-6709
E-mail: gblankinship@fbfglaw.com
tgarber@fbfglaw.com
bsilverman@fbfglaw.com
- and -
Matthew D. Schultz, Esq.
William F. Cash III, Esq.
LEVIN, PAPANTONIO, RAFFERTY,
PROCTOR, BUCHANAN, O'BRIEN,
BARR, & MOUGEY, P.A.
316 South Baylen St.
Pensacola, FL 32502
Telephone: (850) 435-7059
E-mail: mschultz@levinlaw.com
bcash@levinlaw.com
- and -
Gary F. Lynch, Esq.
CARLSON LYNCH KILPELA &
CARPENTER, LLP
1133 Penn Avenue, 5th Floor
Pittsburgh, PA 15222
Telephone: (412) 322-9243
Facsimile: (412) 231-0246
E-mail: glynch@carlsonlynch.com
FREEDOM MOSES: Crumwell Files ADA Suit in S.D. New York
-------------------------------------------------------
A class action lawsuit has been filed against Freedom Moses LLC.
The case is styled as Denise Crumwell, on behalf of herself and all
other persons similarly situated v. Freedom Moses LLC, Case No.
1:21-cv-07605 (S.D.N.Y., Sept. 10, 2021).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Freedom Moses -- https://freedomoses.com/ -- aims to create
ethically-sourced, environmentally-friendly footwear.[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
FRONTLINE ASSET: Arbitration Bid in Madorskaya FDCPA Suit Denied
----------------------------------------------------------------
In the case, OLGA MADORSKAYA, individually and on behalf of all
others similarly situated, Plaintiff v. FRONTLINE ASSET STRATEGIES,
LLC, Defendant, Case No. 19-CV-895 (PKC) (RER) (E.D.N.Y.), Judge
Pamela K. Chen of the U.S. District Court for the Eastern District
of New York denied:
(i) the Defendant's motions to compel individual arbitration
and for summary judgment; and
(ii) the Plaintiff's motion to strike the Defendant's reply in
support of its summary judgment motion.
Plaintiff Madorskaya brings the putative class action against
Defendant Frontline, claiming various violations of the Fair Debt
Collection Practices Act ("FDCPA"), 15 U.S.C. Section 1692 et seq.
The Defendant is a debt collector that "uses the mail to collect
defaulted consumer debts owed or due or alleged to be owed or due
to others."
Some time prior to Feb. 14, 2018, Citibank, N.A. issued the
Plaintiff a personal credit card, with an account number ending in
8173. At that time, the Plaintiff and Citibank entered into a Card
Agreement, which contains an arbitration clause.
At some point before Feb. 14, 2018, after the Plaintiff amassed
debt on her Citibank credit card and failed to make regular
payments, Citibank charged off the debt and sold it to JH Portfolio
Debt Equities, LLC. JH Portfolio, in turn, placed the debt with
Defendant Frontline for collection.
On Feb. 14, 2018, the Defendant sent the Plaintiff a collection
letter "on behalf of JH Portfolio." After sending the Plaintiff the
Feb. 14, 2018 collection letter, the Defendant returned the account
to JH Portfolio on May 3, 2018.
On Aug. 28, 2018, an entity called JHPDE Finance 1, LLC sued the
Plaintiff in Kings County Civil Court regarding the debt on her
Citibank credit card ending in 8173. On Nov. 7, 2018, the Plaintiff
entered a Settlement Stipulation with JHPDE Finance 1 to settle the
debt. The Settlement Stipulation includes a clause.
According to the Plaintiff's deposition testimony in the case, the
Plaintiff understood that she was agreeing to the Release at the
time she signed the Settlement Stipulation.
The relationship between JH Portfolio and JHPDE Finance 1 is not
entirely clear. According to the New York Department of State,
Division of Corporations, JH Portfolio is a California limited
liability company, while JHPDE Finance 1 is a Delaware limited
liability company. A declaration from Defendant's Vice President of
Strategy and Compliance, which was submitted with the Defendant's
reply brief in support of its motion for summary judgment, states
that JH Portfolio and JHPDE Finance 1 "are affiliated buying
entities under JH Capital Group, LLC."
The Plaintiff commenced the putative class action on Feb. 14, 2019.
On May 3, 2019, the Defendant served a motion to dismiss pursuant
to Federal Rule of Civil Procedure 12(b)(6). In response to the
motion, the Plaintiff amended her complaint as of right under Rule
15(a)(1)(B) on May 24, 2019, in an attempt to address pleading
deficiencies raised in Defendant's motion. The Defendant renewed
its motion to dismiss on June 11, 2019. Its motion was fully
briefed on July 22, 2019.
By Memorandum and Order dated Jan. 27, 2020, the Court granted
dismissal of the Plaintiff's FDCPA claim based on the collection
letter's statement about the total amount of debt owed, but denied
dismissal of the Plaintiff's other FDCPA claims based on the
collection letter's disclosure regarding the accrual of interest.
Although the Defendant also argued in its motion to dismiss that
the Release in the Settlement Stipulation barred the Plaintiff's
FDCPA claims, the Court found it inappropriate to construe the
Release on a motion to dismiss, particularly because there remained
"a material disputed issue of fact regarding the relationship, if
any, between the entities JHPDE Finance 1, LLC, and JH Portfolio
Debt Equities, LLC." The Court accordingly declined to grant the
Defendant's motion to dismiss on the basis that the Release barred
the Plaintiff's claims.
Following the Court's decision on the motion to dismiss, the
Defendant answered the Complaint on Feb. 10, 2020. Although the
Defendant raised 17 affirmative defenses in its Answer, it did not
make any reference to arbitration. The case then proceeded to
discovery. On Oct. 7, 2020, a representative of Defendant was
deposed pursuant to Rule 30(b)(6), and the Plaintiff was deposed on
Oct. 9, 2020.
On Oct. 7, 2020, the Defendant requested a pre-motion conference
with respect to an anticipated motion to compel individual
arbitration based on the Arbitration Clause in the Agreement. The
Plaintiff responded on Oct. 14, 2020. By order on Oct. 19, 2020,
the Court construed the Defendant's request for a pre-motion
conference as a motion to compel arbitration and set an expedited
briefing schedule for supplemental submissions. The Defendant filed
a supplemental motion to compel arbitration on Nov. 18, 2020. The
Plaintiff filed an opposition on Dec. 4, 2020, and the Defendant
filed a reply on Dec. 11, 2020.
While the Defendant's motion to compel arbitration was being
briefed, both parties requested a pre-motion conference to discuss
anticipated cross-motions for summary judgment. Based on the
parties' submissions, the Court decided that a pre-motion
conference was unnecessary and set a briefing schedule for the
proposed cross-motions for summary judgment. On Dec. 24, 2020, the
Defendant filed its motion for summary judgment and opening brief
in support of the motion. On the same day, the Plaintiff filed its
motion for summary judgment and opening brief, as well as a motion
for class certification.
On Jan. 19, 2021, the Court held a conference with the parties to
discuss further briefing of the various motions and directed the
parties to focus on the threshold issue of whether the Release
barred the Plaintiff's FDCPA claims, which the Defendant had
renewed in its motion for summary judgment. The Plaintiff's motion
for summary judgment and motion for class certification, as well as
the remaining issues in the Defendant's motion for summary
judgment, were withdrawn without prejudice to renewal at a later
time.
On Feb. 10, 2021, the Plaintiff filed an opposition focusing on the
issue of the Release. The Defendant filed a reply on Feb. 23, 2021.
On the same day, the Plaintiff moved to strike the Defendant's
reply on the basis that it improperly included new evidence in
support of the Defendant's argument that the Release applied to bar
the Plaintiff's claims.
Discussion
I. Motion to Compel Arbitration
A. Defendant Is Not Entitled to Enforce the Arbitration Clause
The parties do not dispute that the Arbitration Clause in the
Agreement is a valid and enforceable arbitration agreement between
the Plaintiff and Citibank; the key issue in the case is whether
the Defendant, as a non-signatory, may invoke the Arbitration
Clause and compel the Plaintiff to arbitrate.
The Defendant argues that it may compel the Plaintiff to arbitrate,
and do so on an individual basis, (1) under the plain language of
the Arbitration Clause, (2) under a theory of agency, or (3) as a
third-party beneficiary.
Judge Chen holds that none of these arguments is availing. First,
she finds that the plain language of the Arbitration Clause does
not indicate that the Defendant is a party who may compel
arbitration of the Plaintiff's FDCPA claims in the case. Second,
even assuming that the Defendant is an "agent" of Citibank's
assignee JH Portfolio, this is not a case where the alleged claims
are based on "substantially interdependent and concerted
misconduct" by the Defendant and its purported principal; nor do
the claims arise out of the Agreement, such that it would be
"manifestly unfair" to bar the Defendant from invoking the
Arbitration Clause in the Agreement. Therefore, the Defendant may
not compel the Plaintiff to arbitrate under an agency theory.
Finally, the Judge finds that it is apparent that the Agreement was
entered into by the parties directly and primarily for the benefit
of Citibank," and that any benefit to parties like the Defendant is
merely incidental. Therefore, the Defendant may not compel
arbitration as a third-party beneficiary.
B. The Arbitration Clause's Class Waiver Is Inapplicable
The Arbitration Clause provides that "Claims brought as part of a
class action, private attorney general or other representative
action can be arbitrated only on an individual basis." Relying on
this provision of the Clause, the Defendant argues that Plaintiff
must individually arbitrate her claims, and hence, her "class
allegations should be stricken."
But as Defendant recognizes, the operation of the class waiver
provision is contingent on a party validly electing to arbitrate,
Judge Chen finds. Indeed, the Arbitration Clause states, "If
arbitration is chosen by any party, neither you nor we may pursue a
Claim as part of a class action or other representative action."
Because the Defendant may not invoke the Arbitration Clause, the
Judge holds it may not invoke the class waiver provision of the
Clause.
C. Defendant In Any Event Has Waived Its Right to Arbitrate
Even if the Defendant were entitled to enforce the Arbitration
Clause, Judge Chen would conclude that the Defendant has impliedly
waived its right to do so. She finds that the facts and
circumstances of this case demonstrate that the Defendant has
waived any right it might have to arbitrate. Moreover, following
its unsuccessful motion to dismiss, Defendant filed an Answer
raising 17 affirmative defenses without referencing arbitration,
and then proceeded to discovery, waiting until the eve of the close
of discovery -- nearly 20 months after the commencement of the case
-- to move to compel arbitration
D. Summary
Based on the plain language of the Arbitration Clause and the other
relevant undisputed facts, Judge Chen holds that the Defendant is
not entitled to enforce the Arbitration Clause. Regardless, the
Defendant has waived any right to compel arbitration. Accordingly,
the Judge denies the Defendant's motion to compel arbitration.
II. Motion for Summary Judgment Based on the Release
In the event the Court denies its motion to compel arbitration, the
Defendant moves for summary judgment as to the Plaintiff's FDCPA
claims on the ground that the Release, which the Plaintiff signed
as part of the settlement of the debt-collection lawsuit filed by
JHPDE Finance 1 in Kings County Civil Court in 2018, extends to the
lawsuit.
Because Judge Chen finds that there are no material disputes of
fact and that the Release does not bar the Plaintiff's FDCPA claims
against the Defendant, she denies the Defendant summary judgment on
this issue.
The Judge acknowledges that, with respect to the type of claims
covered by the Release, the Court extends to "any and all claims,
liabilities, demands, suits, and causes of action, whether vested
or contingent, accrued or unaccrued, whether or not such claims
were or could have been raised, or as a result of any activities
related to the debt and/or JHPDE Finance 1's account." Despite its
broad release of "any and all claims," however, the Judge says, the
Release is expressly and unambiguously confined to particular
categories of entities, and the Defendant has not introduced
anything to show that it falls within one of those categories. In
fact, it is undisputed that after sending the Plaintiff the Feb.
14, 2018 collection letter, the Defendant "returned" the
Plaintiff's account to JH Portfolio on May 3, 2018 and, other than
defending the case, "has had nothing to do with the account since
that date." Several months after the Defendant no longer had
anything to do with the Plaintiff's account, JHPDE Finance 1 sued
the Plaintiff in Kings County Civil Court to collect the debt on
the account, which resulted in the Settlement Stipulation
containing the Release.
These undisputed facts bolster the conclusion that the terms of the
Release were not intended to cover the Defendant, the Judge holds.
Accordingly, she denies the Defendant's motion for summary judgment
on the Release issue, and finds, as a matter of law, that the
Release does not bar the Plaintiff's FDCPA claims against the
Defendant.
III. Motion to Strike
The Plaintiff moves to strike the Defendant's reply in support of
its motion for summary judgment because the reply offers new
evidence, and argues for the first time, that JH Portfolio is "an
affiliated buying entity" of JHPDE Finance 1. "Ultimately, it is
within the Court's discretion whether to strike portions of reply
papers." It is well-established that "new arguments may not be made
in a reply brief." Additionally, "it is plainly improper to submit
on reply evidentiary information that was available to the moving
party at the time that it filed its motion and that is necessary in
order for that party to meet its burden."
Though the Defendant's reply contains new evidentiary information
that JH Portfolio and JHPDE Finance 1 "are affiliated buying
entities under JH Capital Group, LLC," Judge Chen finds that at the
time the Defendant was preparing its opening papers with respect to
its motion for summary judgment, the Court had not yet indicated
that it wanted the parties to focus on the threshold issue of the
Release. That being said, the issue of the Release was not new;
indeed, the Defendant raised it in its earlier motion to dismiss.
Nevertheless, the Judge holds that the new information in the
Defendant's reply does not help it. Even if the Court were to
consider it, the disposition of the Defendant's summary judgment
motion would not change. Accordingly, because the Plaintiff is not
prejudiced by the information in the Defendant's reply, there is no
need to strike the reply, and Judge Chen declines to do so.
Conclusion
In light of the foregoing, Judge Chen denied the Defendant's motion
to compel arbitration, its motion for summary judgment based on the
Release is denied, and the Plaintiff's motion to strike. As a
matter of law, the Judge holds that the Release does not bar the
Plaintiff's individual FDCPA claims in the matter. A separate order
will follow scheduling a conference with the parties to discuss
further proceedings in the case.
A full-text copy of the Court's Aug. 31, 2021 Memorandum & Order is
available at https://tinyurl.com/yhf3wc52 from Leagle.com.
GC SERVICES: Tovar Suit Removed to S.D. California
--------------------------------------------------
The case styled as Sheila Tovar, on behalf of herself and others
similarly situated v. GC Services Limited Partnership, Does 1 to
100, inclusive, Case No. 37-02021-00028310-CU-OE-CTL was removed
from the San Diego Superior Court to the United States District
Court for the Southern District of California on Sept. 10, 2021.
The District Court Clerk assigned Case No. 3:21-cv-01597-CAB-BGS to
the proceeding.
The nature of suit is stated as Other Labor.
GC Services -- https://www.gcserv.com/ -- is the largest
privately-held outsourcing provider of call center management and
collection agency services in North America.[BN]
The Plaintiff is represented by:
Joseph Lavi, Esq.
8880 W. Olympic Blvd., Suite 200
Beverly Hills, CA 90211
Phone: (310) 432-0000
Fax: (310) 432-0001
Email: jlavi@lelawfirm.com
The Defendants are represented by:
Joseph R. Lewis
MORGAN, LEWIS & BOCKIUS
One Market, Suite 2800
San Francisco, CA 94105
Phone: (415) 442-1465
Fax: (415) 442-1001
Email: joseph.lewis@morganlewis.com
GENERAL MOTORS: Chevy Cruze Emissions Class Action May End
----------------------------------------------------------
David A. Wood, writing for CarComplaints.com, reports that a Chevy
Cruze class action lawsuit may be nearing the end after five years
in court as the federal judge says the plaintiffs haven't provided
evidence the cars are equipped with emissions defeat devices.
The Chevrolet Cruze class action lawsuit was filed in July 2016 by
owners who allege 2014-2015 Cruze diesel cars emit illegal levels
of nitrogen oxide (NOx) emissions.
The plaintiffs who sued claim General Motors committed the same
sins as Volkswagen did by directing their engineers to develop and
install emissions defeat devices in the Cruze cars.
The lawsuit alleges the diesel Cruze cars were manipulated to fool
the Environmental Protection Agency (EPA) and the California Air
Resources Board (CARB).
The plaintiffs further claim they were injured by overpaying for
their cars due to GM's allegedly fraudulent conduct.
The Robert Bosch company was later added to the lawsuit when the
plaintiffs alleged the company supplied the illegal software
allegedly installed in the Cruze vehicles.
Chevy Cruze Class Action Lawsuit: Discovery
Contrary to many class action lawsuits against automakers, General
Motors decided to continue its legal fight by advancing to the
discovery phase, a pre-trial stage to formally collect evidence and
information.
During discovery, GM collects information from the car owners who
sued, and the owners collect documents and information from the
automaker.
Both sides will request official documents, and witnesses, car
owners and experts are interviewed under oath while non-parties can
be subpoenaed.
Judge Thomas L. Ludington says the discovery phase is complete and
there is no evidence the GM Chevrolet Cruze vehicles are equipped
with emissions defeat devices.
The case has went on for more than five years and 400 discovery
filings, but the judge says the evidence gives "rise to a serious
question regarding the propriety of this Court's continued exercise
of jurisdiction."
When the class action lawsuit was at the pleading stage, the judge
said the plaintiff's theory they overpaid for their cars allowed
the case to continue. GM continued to deny the cars were equipped
with illegal emissions software, but the judge found the plaintiffs
had "carried their burden" at the pleading stage of the case.
But after multiple years of discovery, the judge notes neither the
EPA nor CARB issued any notices of emissions violations about the
Chevy Cruze diesel vehicles.
Emails and meetings show GM communicated with CARB and the EPA
before and after the plaintiffs filed the class action in 2016, but
eight years after the 2014 Cruze was produced, no federal or state
actions have been taken against General Motors.
In June 2019, GM filed a Freedom of Information Act (FOIA) request
seeking all communications about 2014 to 2015 Chevy Cruze diesel
vehicles between CARB, the EPA, the law firms for the plaintiffs
and GM, and West Virginia University researchers.
That FOIA request did not produce any evidence the EPA or CARB are
investigating GM or Bosch for misrepresenting the Chevy Cruze.
"Inaction by the EPA and CARB regarding the Chevy Cruise diesel
seems to discredit Plaintiffs' assertion that Defendants
implemented a defeat device and that said device inflicted an
economic injury. For the same reason, Plaintiffs' claim that
Bosch's conduct produced a RICO injury appears equally unfounded."
-- Judge Ludington
The judge also says the only evidence of excessive emissions comes
from a test of only one Chevy Cruze diesel car purchased by
attorneys for the plaintiffs. No other Cruze cars were tested, not
even any of the cars owned by the GM owners who filed the lawsuit.
According to the judge, the plaintiffs depend on the allegation the
nitrogen oxide emissions of one used Chevy Cruze represent the
emissions of the entire fleet of cars.
Chevy Cruze Lawsuit: Testimony of the Plaintiffs
According to the judge, depositions and responses of the plaintiffs
"have not substantiated the initial allegation that the NOx
emissions of Chevy Cruze diesel vehicles exceeded EPA and CARB
requirements."
The judge says the testimony of the plaintiffs was inconsistent and
multiple plaintiffs had not even heard of nitrogen oxides before
the lawsuit was filed.
Seven of the plaintiffs testified they expected the Chevy Cruze
diesel's emissions to be lower than a comparable gasoline engine.
However, the comparison between gasoline and diesel vehicles isn't
appropriate.
Gasoline and diesel engines operate very differently and therefore
produce different emissions, with diesel engines creating more
emissions output than gas engines.
The judge goes on to use evidence from the Cruze window stickers as
well as the U.S. government.
The window sticker (Monroney label) for the 2014 Chevy Cruze diesel
indicates a 5-out-of-10 smog rating and a 7-out-of-10 CO2 emissions
rating. The smog rating includes emissions "such as nitrogen oxide,
non-methane organic gases, carbon monoxide, particulate matter, and
formaldehyde."
The judge notes a side-by-side comparison on FuelEconomy.gov shows
the EPA smog rating for the 2014 Chevy Cruze diesel is 5 out of 10,
and its gasoline counterpart is 6 out of 10.
"Moreover, greenhouse gas emissions for tailpipe CO2 are rated 7
out of 10 for diesel engines and 8 out of 10 for gasoline. That
disclosure undermines any expectation that the Chevy Cruze diesel
would have lower emissions than a gasoline alternative." -- Judge
Ludington
Two of the plaintiffs also say they expected the Chevy Cruze diesel
emissions to match the window sticker on the vehicle, but the judge
says the plaintiffs have produced no evidence that the Chevy Cruze
diesel emits nitrogen oxides at a higher rate than either what the
Monroney sticker disclosed or what the EPA and CARB approved.
Four of the plaintiffs say they expected the Chevy Cruze diesel to
be good for the environment and have little to no emissions. And
four Cruze owners say they expected their Chevy Cruze diesel
emissions would be cleaner than previous generations of diesel
engines.
But according to the judge, "none of those plaintiffs have
identified what benchmarks they expected the Cruze to meet."
"At the pleading stage, this Court accepted as true Plaintiffs'
allegation that they were 'injured' by paying a premium for a
benefit they never received. As recounted above, Plaintiffs'
testimony hardly supports that theory." -- Judge Ludington
The Chevy Cruze class action lawsuit also alleges owners have been
injured because not only did they pay a "clean diesel" premium,
owners will also suffer out-of-pocket losses for "future attempted
repairs."
The judge didn't buy those arguments because the Cruze cars have
not been recalled and the plaintiffs haven't provided any evidence
in five years that they ever attempted to have their cars
repaired.
According to Judge Ludington, "four long years of discovery have
not produced the widespread evidence of deceptive engineering and
regulatory fraud that Plaintiffs have alleged in this case."
The plaintiffs who sued GM have until October 1, 2021, to show
cause why the judge should not dismiss the lawsuit.
The Chevy Cruze class action lawsuit was filed in the U.S. District
Court Eastern District Of Michigan: Counts, et al., v. General
Motors LLC.
The plaintiffs are represented by Carella, Byrne, Cecchi, Olstein,
Brody & Agnello, PC, Hagens Berman Sobol Shapiro LLP, and Seeger
Weiss LLP. [GN]
GENIUS BRANDS: Bid to Dismiss Consolidated Securities Suit Pending
------------------------------------------------------------------
Genius Brands International, Inc. said in its Form 10-Q Report
filed with the Securities and Exchange Commission on August 16,
2021, for the quarterly period ended June 30, 2021, that the motion
to dismiss the consolidated putative class action suit entitled, In
re Genius Brands International, Inc. Securities Litigation, is
pending.
The Company, its Chief Executive Officer Andy Heyward, and its
Chief Financial Officer Robert Denton are named as defendants in a
putative class action lawsuit filed in the U.S. District Court for
the Central District of California and styled In re Genius Brands
International, Inc. Securities Litigation, Master File No.
2:20-cv-07457 DSF (RAOx).
In a consolidated amended complaint filed February 1, 2021, the
Lead Plaintiffs allege generally that defendants violated Sections
10(b) and 20(a) of the Securities Exchange Act of 1934 by making
materially false or misleading statements regarding the Company's
business and business prospects, artificially inflating the
Company's stock price during an alleged class period running from
March 11 through July 5, 2020.
Plaintiffs seek unspecified damages on behalf of the alleged class
of persons who invested in our common stock during the alleged
class period. On March 17, 2021, the defendants filed a motion to
dismiss the amended complaint.
That motion is fully briefed, and the Court took the motion under
submission without oral argument in early July 2021.
Genius said, "We cannot predict the outcome of the motion or the
timing of a decision from the Court. Pending resolution of the
motion to dismiss, neither discovery nor other substantive
proceedings are occurring or expected."
Genius Brands International, Inc., is a content and brand
management company. The Company provides entertaining and enriching
content and products with a purpose for toddlers to tweens. The
Company produces original content and licenses the rights to that
content to a range of partners. The company is based in Beverly
Hills California.
GEOVERA SPECIALTY: Alexander Files Suit in W.D. Louisiana
---------------------------------------------------------
A class action lawsuit has been filed against GeoVera Specialty
Insurance Co. The case is styled as Larry W. Alexander, Misty
Alexander, on behalf of themselves and all others similarly
situated, Plaintiffs; Patrick A Juneau, Jr., Cade Richard Cole,
Special Masters v. GeoVera Specialty Insurance Co., Case No.
2:21-cv-03166-JDC-KK (W.D. La., Aug. 31, 2021).
The nature of suit is stated as Insurance for Property Damage.
GeoVera Specialty Insurance Company --
https://geovera.com/geovera-specialty/ -- operates as an insurance
firm. The Company offers property and casualty insurance products
and services.[BN]
The Plaintiffs are represented by:
Kevin L. Camel, Esq.
Michael K. Cox, Esq.
723 Broad St
Lake Charles, LA 70601
Phone: (337) 436-6611
Email: mike@coxatty.com
The Special Masters are represented by:
Patrick A Juneau, Jr., Esq.
JUNEAU DAVID
P O Drawer 51268
Lafayette, LA 70505-1268
Phone: (337) 269-0052
Fax: (337) 269-0061
Email: pjh@juneaudavid.com
- and -
Cade Richard Cole, Esq.
LAW OFFICE OF CADE R. COLE
1523 Cypress St
Sulphur, LA 70663
Phone: (337) 905-7777
Email: crcole@colelaw.us
HAWAI'I: Settlement Sets for Suit Over COVID-19 Outbreaks in Jails
------------------------------------------------------------------
Associated Press reports that a U.S. judge has given preliminary
approval to a settlement in a lawsuit by Hawaii inmates who allege
state officials mishandled the pandemic and failed to protect them
from COVID-19 outbreaks in prisons and jails.
In a ruling, U.S. District Judge Jill Otake said the settlement
between the state and the inmates is "fair, adequate, and
reasonable."
Both sides agreed last week to the settlement, which establishes a
five-person panel to oversee public health in correctional
facilities and other measures to improve sanitation, hygiene and
medical monitoring.
The settlement also directs officials to make vaccines available
and to "promote and educate inmates and staff regarding COVID-19
vaccination."
The class-action lawsuit was meant to provide resources to improve
safety during the pandemic, said Eric Seitz, an attorney for the
inmates. He said he'll pursue damages in separate, future legal
action.
Situations described in court documents included ailing detainees
kept near a bathroom flooded with urine and feces.
Their requests to use the bathroom were frequently denied, forcing
them to urinate in their drinking cups, according to the
documents.
Class members can object to the settlement terms. A hearing is
scheduled next month to determine if any objections have merit.
The inmates had asked for a court-appointed expert who could ensure
the state was following its own Pandemic Response Plan. In July,
Otake ruled that she wouldn't appoint a special master but said she
was troubled by "egregious conditions" that led to virus outbreaks
at five of the state's eight prisons and jails.
Otake noted descriptions in the lawsuit including an outbreak at
one Oahu facility that led to 90% of the inmate population
contracting the virus. Dirty clothes from that facility where
laundered by inmates and staff at another facility, which resulted
in an outbreak there.
Other descriptions she noted include an inmate with lupus who
contracted the virus but received little to no medical care and
ended up with serious kidney damage. Inmates described a lack of
social distancing and mask-wearing enforcement amid crowded and
unsanitary living conditions.[GN]
HIRECLUB.COM INC: Misclassifies Employees, Lowe Suit Claims
-----------------------------------------------------------
CAROLYN LOWE, on behalf of herself and all others similarly
situated, Plaintiff v. HIRECLUB.COM, INC., a Delaware Corporation,
Defendant, Case No. 3:21-cv-06768 (N.D. Cal, August 31, 2021) is a
class and collective action complaint brought against the Defendant
for its alleged violations of the Fair Labor Standards Act.
The Plaintiff was employed by the Defendant as a career coach from
approximately October 2017 through March 4, 2021.
According to the complaint, the Plaintiff and all other similarly
situated employees were willfully misclassified by the Defendant as
independent contractors. Despite working more than 40 hours per
week, the Defendant failed to pay them minimum wages for all hours
worked and overtime compensation at the rate of one and one-half
times their regular rates of pay for all hours worked in excess of
40 per workweek. The Plaintiff also contends that the Defendant
failed to provide them with meal breaks and rest periods. In
addition, the Defendants failed to include all payments in the
calculation of regular rate of pay. Moreover, the Defendants failed
to keep accurate records of employees' hours of work, hourly wages,
and hourly rates, failed to provide them with accurate wage
statement, failed to timely pay them unpaid wages and overtime due
upon their separation from employment with the Defendant, and
failed to pay them sick pay, the suit says.
The Plaintiff brings this complaint on behalf of herself and all
other similarly situated aggrieved employees to recover unpaid
wages, overtime compensation and sick leave, liquidated damages
equal in amount of the unpaid wages, pre- and post- judgment
interest on all monetary relief, reasonable attorneys' fees,
litigation costs, and other relief as the Court shall deem just and
proper.
Hireclub.com Inc. is an employment agency. [BN]
The Plaintiff is represented by:
Daniel L. Feder, Esq.
LAW OFFICES OF DANIEL FEDER
235 Montgomery Street, Suite 1019
San Francisco, CA 94104
Tel: (415) 391-9476
Fax: (415) 391-9432
E-mail: daniel@dfederlaw.com
HOME DEPOT: Li Fan Wage-and-Hour Suit Removed to E.D. California
----------------------------------------------------------------
The case styled LI FAN, individually and on behalf of all others
similarly situated v. HOME DEPOT U.S.A., INC.; and DOES 1-50,
inclusive, Case No. MCV084871, was removed from the Superior Court
of the State of California for the County of Madera to the U.S.
District Court for the Eastern District of California on September
9, 2021.
The Clerk of Court for the Eastern District of California assigned
Case No. 1:21-at-00882 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 wages including overtime, failure to
pay timely wages, failure to provide accurate itemized wage
statements, and unfair competition.
Home Depot U.S.A., Inc. is a home improvement retailer in the
United States, headquartered in Cobb County, Georgia. [BN]
The Defendant is represented by:
Evan R. Moses, Esq.
Aaron H. Cole, Esq.
Melis Atalay, Esq.
Omar M. Aniff, Esq.
OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C.
400 South Hope Street, Suite 1200
Los Angeles, CA 90071
Telephone: (213) 239-9800
Facsimile: (213) 239-9045
E-mail: evan.moses@ogletree.com
aaron.cole@ogletree.com
melis.atalay@ogletree.com
omar.aniff@ogletreedeakins.com
HYUNDAI MOTOR: Tharpe et al., File Suit in C.D. California
----------------------------------------------------------
A class action lawsuit has been filed against Hyundai Motor
America, Inc., et al. The case is styled as Travis Tharpe, Laura
Leamon, Trever Leamon, Joel Carlisle, Troy Ackerman, Deborah
George, John George, Thomas Brady, Shannon Brady, Daniel Lopez,
Monika Lopez, Jeffrey Curry, individually and on behalf of all
others similarly situated v. Hyundai Motor America, Inc., Hyundai
Motor Company, Kia America, Inc., Kia Corporation, Case No.
8:21-cv-01428-JVS-JDE (C.D. Cal., Aug. 31, 2021).
The nature of suit is stated as Contract Product Liability.
Hyundai Motor America -- https://www.hyundaiusa.com/us/en --
manufactures and retails automobiles.[BN]
The Plaintiffs are represented by:
Caleb Marker, Esq.
ZIMMERMAN REED PLLP
2381 Rosecrans Avenue Suite 328
El Segundo, CA 90245
Phone: (877) 500-8780
Fax: (877) 500-8781
Email: Caleb.Marker@zimmreed.com
IDEANOMICS INC: Monteverde & Associates Announces Class Action
--------------------------------------------------------------
Juan Monteverde, founder and managing partner at Monteverde &
Associates PC, a national securities firm rated Top 50 in the
2018-2020 ISS Securities Class Action Services Report and
headquartered at the Empire State Building in New York City, is
investigating Ideanomics, Inc. ("IDEX" or the "Company") (IDEX)
relating to its proposed merger with Via Motors International, Inc.
Under the terms of the agreement, IDEX shareholders are expected to
own approximately 75% of the combined company.
The investigation focuses on whether Ideanomics, Inc. and its Board
of Directors violated securities laws and/or breached their
fiduciary duties to the Company by 1) failing to conduct a fair
process, and 2) whether the transaction is properly valued.
Click here for more information:
http://monteverdelaw.com/case/ideanomics-inc.It is free and there
is no cost or obligation to you.
About Monteverde & Associates PC
We are a national class action securities litigation law firm that
has recovered millions of dollars and is committed to protecting
shareholders from corporate wrongdoing. We were listed in the Top
50 in the 2018-2020 ISS Securities Class Action Services Report.
Our lawyers have significant experience litigating Mergers &
Acquisitions and Securities Class Actions. Mr. Monteverde is
recognized by Super Lawyers as a Rising Star in Securities
Litigation in 2013, 2017-2019, an award given to less than 2.5% of
attorneys in a particular field. He has also been selected by
Martindale-Hubbell as a 2017-2020 Top Rated Lawyer. Our firm's
recent successes include changing the law in a significant victory
that lowered the standard of liability under Section 14(e) of the
Exchange Act in the Ninth Circuit. Thereafter, our firm
successfully preserved this victory by obtaining dismissal of a
writ of certiorari as improvidently granted at the United States
Supreme Court. Emulex Corp. v. Varjabedian, 139 S. Ct. 1407 (2019).
Also, over the years the firm has recovered or secured over a dozen
cash common funds for shareholders in mergers & acquisitions class
action cases.
If you owned common stock in the Company and wish to obtain
additional information and protect your investments free of charge,
please visit our website or contact Juan E. Monteverde, Esq. either
via e-mail at jmonteverde@monteverdelaw.com or by telephone at
(212) 971-1341. [GN]
ILLINOIS: Jerry Jeager Suit Seeks to Certify Class
--------------------------------------------------
In the class action lawsuit captioned as Jerry Jeager, Jr. v.
Office of State Appellate Defender, et al., Case No.
3:21-cv-00245-SMY (S.D. Ill.), the Plaintiff asks the Court to
enter an order:
1. certifying a class, defined as follows:
"all persons, who have pending criminal appeals in the
Illinois Appellate Court on the date that this case was
filed, or who, while this case is pending come to have a
pending case in the Illinois Appellate court, and, who are
represented by the Illinois State Appellate Public
Defender while their case is on appeal;"
2.appointing himself as class representative; and
3. designating Thomas G. Maag and the Maag Law Firm, LLC, as
class counsel.
The Plaintiff also asks the district court, as suggested by the
U.S. Court of Appeals in Damasco v. Clearwire Corp., 662 F. 3d 891
-- Court of Appeals, 7th Circuit 2011, to delay its ruling to
provide time for not for additional discovery, but for basic
discovery or investigation.
The Office of the State Appellate Defender provides indigent
criminal services.
A copy of the Plaintiff's motion to certify class dated Sept. 2,
2021 is available from PacerMonitor.com at https://bit.ly/3hm1fYO
at no extra charge.[CC]
Jerry Yeager, Jr,. on behalf of himself and similarly situated
persons, is represented by:
Thomas G. Maag, Esq.
MAAG LAW FIRM, LLC
22 West Lorena Avenue
Wood River, IL 62095
Telephone: (618) 216-5291
E-mail: tmaag@maaglaw.com
The Defendants are represented by:
Joshua D. Ratz, Esq.
500 South Second Street
Springfield, IL 62701
Telephone: (217) 782-5819
Facsimile: (217) 782-8767
E-mail: Joshua.Ratz@lllinois.gov
ITERUM THERAPEUTICS: Klein Law Firm Reminds of Oct. 4 Deadline
--------------------------------------------------------------
The Klein Law Firm announces that class action complaints have been
filed on behalf of shareholders of the following companies. There
is no cost to participate in the suit. If you suffered a loss, you
have until the lead plaintiff deadline to request that the court
appoint you as lead plaintiff.
Iterum Therapeutics Plc (NASDAQ:ITRM)
Class Period: November 30, 2020 - July 23, 2021
Lead Plaintiff Deadline: October 4, 2021
Iterum Therapeutics Plc allegedly made materially false and/or
misleading statements and/or failed to disclose that: (i) the
sulopenem New Drug Application ("NDA") lacked sufficient data to
support approval for the treatment of adult women with urinary
tract infections caused by designated susceptible microorganisms
proven or strongly suspected to be nonsusceptible to a quinolone;
(ii) accordingly, it was unlikely that the Food and Drug
Administration would approve the sulopenem NDA in its current form;
(iii) Defendants downplayed the severity of issues and deficiencies
associated with the sulopenem NDA; and (iv) as a result, the
Company's public statements were materially false and misleading at
all relevant times.
Learn about your recoverable losses in ITRM:
https://www.kleinstocklaw.com/pslra-1/iterum-therapeutics-plc-loss-submission-form?id=19498&from=1
Your ability to share in any recovery doesn't require that you
serve as a lead plaintiff. If you suffered a loss during the class
period and wish to obtain additional information, please contact J.
Klein, Esq. by telephone at 212-616-4899 or visit the webpages
provided.
J. Klein, Esq. represents investors and participates in securities
litigations involving financial fraud throughout the nation.
Attorney advertising. Prior results do not guarantee similar
outcomes. [GN]
JP URBAN: Underpays Movers & Packers, Orellana et al. Suit Claim
----------------------------------------------------------------
BAIRON ORELLANA and EDISON ORELLANA, on behalf of themselves, FLSA
Collective Plaintiffs, and the Class, Plaintiffs v. JP URBAN
MOVING, LLC and JOHN MCCUTCHEON, Defendants, Case No. 1:21-cv-04908
(E.D.N.Y., August 31, 2021) bring this class and collective action
complaint alleging the Defendants of violations of the Fair Labor
Standards Act.
Plaintiff Bairon Orellana was employed by the Defendants as a mover
and then as a packer from in or about August 2020 until in or about
July 6, 2021. Plaintiff Edison was employed from in or around April
2020 until in or about July 6, 2021.
The Plaintiffs claim that throughout their employment with the
Defendants, they worked 6 days a week for a total of approximately
24 to 72 hours per week. However, the foreman, who recorded and
reported their hours worked, always rounded down their paid time
down to the nearest 15 minutes. As a result, despite working more
than 40 hours per week, they were not paid proper overtime premium
at the rate of one and one-half times their regular rate of pay for
all hours they worked in excess of 40 per workweek. In addition,
the Defendants willfully failed to provide them with proper wage
notices, and with proper wage statements, says the suit.
JP Urban Moving LLC is a moving service company. John McCutcheon is
the president, principal, and owner of the company. [BN]
The Plaintiffs are represented by:
C.K. Lee, Esq.
Anne Seelig, Esq.
LEE LITIGATION GROUP, PLLC
148 West 24th Street, Eight Floor
New York, NY 10011
Tel: (212) 465-1188
Fax: (212) 465-1181
JUUL LABS: Causes Youth E-Cigarette Crisis, School District Says
----------------------------------------------------------------
THE SCHOOL DISTRICT OF THE CITY OF ERIE, PENNSYLVANIA, on behalf of
itself and all others similarly situated, Plaintiff v. JUUL LABS,
INC.; ALTRIA GROUP, INC.; ALTRIA CLIENT SERVICES LLC; ALTRIA GROUP
DISTRIBUTION COMPANY; NU MARK LLC; PHILIP MORRIS USA, INC.; JAMES
MONSEES; ADAM BOWEN; NICHOLAS PRITZKER; HOYOUNG HUH; RIAZ VALANI;
and JOHN DOES 1-100, inclusive, Defendants, Case No.
3:21-cv-06986-WHO (N.D. Cal., September 9, 2021) is a class action
against the Defendants for negligence, gross negligence, punitive
damages, strict product liability, unjust enrichment, and
violations of the Pennsylvania 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 School District of the City of Erie, Pennsylvania, is a public
school district with its offices located at 148 West 21st Street
Erie, Pennsylvania.
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.
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.
Nu Mark LLC is a tobacco company and wholly-owned subsidiary of
Altria Group, Inc., with its principal place of business in
Richmond, Virginia.
Philip Morris USA, Inc. is a wholly-owned subsidiary of Altria
Group, Inc., with its principal place of business in Richmond,
Virginia. [BN]
The Plaintiff is represented by:
T. Roe Frazer II, Esq.
Thomas Roe Frazer III, Esq.
FRAZER PLC
30 Burton Hills Blvd., Ste. 450
Nashville, TN 37215
Telephone: (615) 647-6464
E-mail: roe@frazer.law
trey@frazer.law
- and –
Bryan G. Baumann, Esq.
KNOX MCLAUGHLIN GORNALL & SENNETT, P.C.
120 West 10th Street
Erie, PA 16501-1461
Telephone: (814) 923-4824
E-mail: bbaumann@kmgslaw.com
KIMURA ENTERPRISES: Vasquez Sues Over Cooks' Unpaid Wages
---------------------------------------------------------
MARGARITA VASQUEZ, an individual, on behalf of herself and other
employees and on behalf of the State of California and the Labor
and Workforce Development Agency, Plaintiff v. KIMURA ENTERPRISES,
INC., a California corporation, SUSHISTOP CORPORATION, a California
corporation, and DOES 1 through 100, INCLUSIVE, Defendants, Case
No. 21STCV32681 (Cal. Super., Los Angeles Cty., Sep. 2, 2021)
arises from the Defendants' alleged violations of the California
Labor Code and the Business and Professions Code for failing to pay
wages and/or overtime pay, failing to provide meal and/or rest
breaks, failing to pay waiting time penalties, and for
retaliation.
For the past four years, Plaintiff Vasquez has worked for
Defendants as a cook.
The Defendants own and operate restaurants in California.[BN]
The Plaintiff is represented by:
T. Joshua Ritz, Esq.
Laleh B. Shokohi, Esq.
T. JOSHUA RITZ & ASSOCIATES, INC.
15233 Ventura Blvd., Ste. 1002
Sherman Oaks, CA 91403
Telephone: (818) 788-1123
Facsimile: (818) 788-1126
L'UNIQUE ASSURANCES: Denies Coverage for COVID-19 Losses, Suit Says
-------------------------------------------------------------------
Kugler Kandestin is pleased to announce that the Quebec Superior
Court authorized the filing of a class action against L'Unique
Assurances Generales Inc. on behalf of all businesses engaged in
the practice of dentistry or a subspeciality of dentistry in the
province of Quebec who were forced to reduce or interrupt their
businesses as a result of COVID-19 and were denied coverage for
Business Interruption Insurance by L'Unique Assurances Generales
Inc.
All Class Members are encouraged to contact Kugler Kandestin to
inquire about the case and their rights. All communications with
our lawyers are free.
We will continue to update this page as the case progresses. [GN]
LIVE VENTURES: Faces Sieggreen Class Action in Nevada
-----------------------------------------------------
Live Ventures Incorporated said in its Form 10-Q Report filed with
the Securities and Exchange Commission on August 16, 2021, for the
quarterly period ended June 30, 2021, that the company is facing a
class action suit initiated by Daniel E. Sieggreen.
On August 13, 2021, Daniel E. Sieggreen filed a individually and on
behalf of all others similarly situated, filed a class action
complaint for violations of federal securities laws in the United
States District Court for the District of Nevada naming the
Defendants, seeking to recover damages for alleged violations under
Sections 10(b) and 20(a) the Exchange Act.
The complaint alleges that the Defendants made materially false
and/or misleading statements, as well as failed to disclose
material adverse facts about the Company's business, operations,
and prospects.
The Defendants dispute and deny the allegations and intend to
vigorously defend themselves against the claims.
Live Ventures Incorporated is a holding company of diversified
businesses, which, together with its subsidiaries. The company
acquires and operate companies in various industries that have
historically demonstrated a strong history of earnings power. The
company currently have three segments to its business: Retail,
Flooring Manufacturing, and Steel Manufacturing. The company is
based in Las Vegas, Nevada.
LOANDEPOT INC: Johnson Fistel Reminds of November 8 Deadline
------------------------------------------------------------
Shareholder rights law firm Johnson Fistel, LLP announces that a
class action lawsuit has commenced on behalf of investors of
loanDepot, Inc. (NYSE: LDI) ("loanDepot" or the "Company"). The
class action is on behalf of shareholders who purchased loanDepot
common stock pursuant or traceable to the February 12, 2021,
initial public stock offering (the "IPO"). If you wish to serve as
lead plaintiff in this class action, you must move the Court no
later than November 8, 2021.
The lawsuit alleges that loanDepot's registration statement
contained statements that were materially inaccurate, misleading,
and incomplete because they failed to disclose that: (1) the
Company's refinance originations had already declined substantially
at the time of the IPO due to industry over-capacity and increased
competition; (2) the Company's gain-on-sale margins had already
declined substantially at the time of the IPO; (3) as a result, the
Company's revenue and growth would be negatively impacted; and (4)
as a result of the foregoing, defendants' positive statements about
the Company's business, operations, and prospects were materially
misleading and lacked a reasonable basis.
A lead plaintiff will act on behalf of all other class members in
directing the loanDepot class action lawsuit. The lead plaintiff
can select a law firm of its choice to litigate the class-action
lawsuit. An investor's ability to share any potential future
recovery of the loanDepot class action lawsuit is not dependent
upon serving as lead plaintiff.
If you are a loanDepot shareholder and have losses and are
interested in learning more about being a lead plaintiff, please
contact Jim Baker (jimb@johnsonfistel.com) at 619-814-4471. If
emailing, please include a phone number. [GN]
MICHIGAN: Sanders Seeks to Certify Class of IBC Prisoners
---------------------------------------------------------
In the class action lawsuit captioned as Jason Sanders v. Heidi E.
Washington, et al., Case No. 1:21-cv-00510-RJJ-RSK (W.D. Mich.),
the Plaintiff asks the Court to enter an order certifying a class.
Mr Sanders contends that there are multiple other prisoners
similarly situated into a class action suit at Bellamy Creek
Correctional Facility (IBC) for injuries they have sustained due
to Defendants violation of the U.S. Constitutional Rights of the
1st, 8th, 14th Amendments.
IBC is a prison in Ionia for men, run by the Michigan Department of
Corrections.
A copy of the Plaintiff's motion to certify class dated Sept. 2,
2021 is available from PacerMonitor.com at https://bit.ly/3z0tdzd
at no extra charge.
The Plaintiff appears pro se.[CC]
NEIGHBORHOOD HEALTHCARE: Medical Malpractice Suit Goes to S.D. Cal.
-------------------------------------------------------------------
The case styled JANE DOE, individually and on behalf of all others
similarly situated v. NEIGHBORHOOD HEALTHCARE; HEALTH CENTER
PARTNERS OF SOUTHERN CALIFORNIA; NETGAIN TECHNOLOGY, LLC; and DOE
DEFENDANTS 1-100, Case No. 37-2021-00023936-CU-BT-CTL, was removed
from the Superior Court of the State of California for the County
of San Diego to the U.S. District Court for the Southern District
of California on September 9, 2021.
The Clerk of Court for the Southern District of California assigned
Case No. 3:21-cv-01587-BEN-RBB to the proceeding.
The case arises from the Defendants' alleged violations of the
Confidentiality of Medical Information Act and breach of the
California Security Notification Laws and the California Business
and Professions Code by failing to protect the Plaintiff's
electronic patient medical records following a ransomware attack
against Netgain, Neighborhood's former data hosting provider, in
December 2020.
Neighborhood Healthcare is a healthcare services provider based in
California.
Health Center Partners of Southern California is a medical center
in San Diego, California.
Netgain Technology, LLC is a cloud information technology (IT)
provider delivering cloud hosting and managed services to the
healthcare and financial industries, with its principal place of
business in San Diego, California. [BN]
The Defendant is represented by:
Daniel T. Rockey, Esq.
BRYAN CAVE LEIGHTON PAISNER LLP
Three Embarcadero Center, 7th Floor
San Francisco, CA 94111
Telephone: (415) 675-3400
Facsimile: (415) 675-3434
E-mail: daniel.rockey@BCLPLaw.com
OCUGEN INC: Kahn Swick Discloses Securities Class Action
--------------------------------------------------------
Former Attorney General of Louisiana, Charles C. Foti, Jr., Esq., a
partner at the law firm of Kahn Swick & Foti, LLC ("KSF"),
announces that KSF has commenced an investigation into Ocugen, Inc.
(NasdaqCM: OCGN).
On June 10, 2021, the Company disclosed that it would pursue a
"biologics license application" with the U.S. Food and Drug
Administration for its COVID-19 vaccine candidate/product rather
than the Emergency Use Authorization process that it had previously
stated it would utilize.
The Company has been sued in a securities class action lawsuit for
failing to disclose material information, violating federal
securities laws, which is ongoing.
KSF's investigation is focusing on whether Ocugen's officers and/or
directors breached their fiduciary duties to Ocugen's shareholders
or otherwise violated state or federal laws.
If you have information that would assist KSF in its investigation,
or have been a long-term holder of Ocugen shares and would like to
discuss your legal rights, you may, without obligation or cost to
you, call toll-free at 1-877-515-1850 or email KSF Managing Partner
Lewis Kahn (lewis.kahn@ksfcounsel.com), or visit
https://www.ksfcounsel.com/cases/nasdaqcm-ocgn/ to learn more.
About Kahn Swick
Kahn Swick & Foti, LLC, whose partners include former Louisiana
Attorney General Charles C. Foti, Jr., is one of the nation's
premier boutique securities litigation law firms. KSF serves a
variety of clients - including public institutional investors,
hedge funds, money managers and retail investors - in seeking to
recover investment losses due to corporate fraud and malfeasance by
publicly traded companies. KSF has offices in New York, California,
Louisiana and New Jersey.
To learn more about KSF, you may visit www.ksfcounsel.com.
View source version on businesswire.com:
https://www.businesswire.com/news/home/20210910005567/en/ [GN]
ONE STOP: Faces Gaona Wage-and-Hour Class Suit in California
------------------------------------------------------------
MARIE GAONA, individually and on behalf of all others similarly
situated, Plaintiff v. ONE STOP DENTAL STUDIO INC.; GEAT MENG; JOE
LING; CHUN MENG; and DOES 1 to 25, inclusive, Defendants, Case No.
21STCV33418 (Cal. Super., Los Angeles Cty., September 9, 2021) is a
class action against the Defendants for violations of the
California Labor Code and the California Business and Professions
Code including failure to compensate for all hours worked, failure
to pay minimum wages, failure to pay overtime, failure to provide
accurate itemized wage statements, failure to pay wages when
employment ends, failure to pay wages owed every pay period,
failure to maintain accurate records, failure to give rest breaks,
failure to give meal breaks, failure to reimburse business
expenses, and unfair business practices.
The Plaintiff worked for the Defendants as a driver in California
from November 2020 until mid-2021.
One Stop Dental Studio Inc. is a dental laboratory in El Monte,
California. [BN]
The Plaintiff is represented by:
Harout Messrelian, Esq.
MESSRELIAN LAW INC.
500 N. Central Ave., Suite 840
Glendale, CA 91203
Telephone: (818) 484-6531
Facsimile: (818) 956-1983
E-mail: hm@messrelianlaw.com
OOMA INC: To Defend Against Chiu Suit in Canada
-----------------------------------------------
Ooma, Inc. said in its Form 10-Q Report filed with the Securities
and Exchange Commission on September 8, 2021, for the quarterly
period ended July 31, 2021, that the company is facing a class suit
initiated by Fiona Chiu and the company intends to defend itself
vigorously.
On February 3, 2021, Chiu filed a class action complaint against
the Company and Ooma Canada Inc. in the Federal Court of Canada,
alleging violations of Canada's Trademarks Act and Competition
Act.
The complaint seeks monetary and other damages and/or injunctive
relief enjoining the Company to cease describing and marketing its
Basic Home Phone using the word "free" or otherwise representing
that it is free.
The Company intends to defend itself vigorously against this
complaint.
Based on the Company's current knowledge, the Company has
determined that the amount of any reasonably possible loss
resulting from the Chiu Litigation is not estimable.
Ooma, Inc. provides software-as-a-service and
unified-communications-as-a-service platforms for businesses and
consumers. The Company's corporate headquarters is located in
Sunnyvale, California.
PATZERIA FAMILY: Faces Bocel Suit Over Unpaid Minimum, OT Wages
---------------------------------------------------------------
RICARDO BOCEL, individually and on behalf of all others similarly
situated, Plaintiff v. PATZERIA FAMILY & FRIENDS INC., PATZERIA
PERFECT PIZZA INC., JOSEPH AZZOLINO, and LEE AZZOLINO, Defendants,
Case No. 1:21-cv-07384 (S.D.N.Y., Sept. 2, 2021) arises from the
Defendants' violations of the Fair Labor Standards Act and the New
York Labor Law by failing to pay Plaintiff proper minimum wages,
spread of hours pay, and overtime compensation.
Plaintiff worked for Defendants as a dishwasher and delivery person
at Patzeria F&F from 2014 until February 2, 2020.
Patzeria F&F and Patzeria Perfect are restaurants that serve
Italian cuisine in New York City.[BN]
The Plaintiff is represented by:
Nicola Ciliotta, Esq.
KATZ MELINGER PLLC
280 Madison Avenue, Suite 600
New York, NY 10016
Telephone: (212) 460-0047
Facsimile: (212) 428-6811
E-mail: nciliotta@katzmelinger.com
PROGRESSIVE CORP: Buffington Seeks to Certify Class
---------------------------------------------------
In the class action lawsuit captioned as STEVEN BUFFINGTON, on
behalf of himself and all other similarly situated, v. THE
PROGRESSIVE CORPORATION and PROGRESSIVE ADVANCED INSURANCE CO.,
Case No. 7:20-cv-07408-PMH (S.D.N.Y.), the Plaintiff asks the Court
to enter an order:
1. certifying a class defined as
"All persons: (a) who insured a vehicle for physical
damage coverage under a New York automobile insurance
policy issued by Progressive Advanced Insurance Company,
(b) who made a claim under the policy for physical damage
to the vehicle, (c) whose claim was adjusted as a total
loss between September 10, 2014, and the date of
certification of the Class, and (d) who were not paid the
applicable New York sales tax owed for their total-loss
claim;"
2. appointing Steven Buffington as a representative of the
Class; and
3. appointing Edward A. Normand and Amy L. Judkins of Normand
PLLC, Joseph N. Kravec of Feinstein Doyle Payne & Kravec,
LLC, and Antonio Vozzolo of Vozzolo, LLC, as Class
Counsel.
The Progressive Corporation is an American insurance company, one
of the largest providers of car insurance in the United States. The
company insures motorcycles, boats, RVs, and commercial vehicles
and provides home insurance through select companies.
A copy of the Plaintiff's motion to certify class dated Sept. 2,
2021 is available from PacerMonitor.com at https://bit.ly/3nkQTwc
at no extra charge.[CC]
The Attorneys for Plaintiff and Proposed Class Counsel, are:
Amy Judkins, Esq.
Edmund A. Normand, Esq.
NORMAND PLLC
3165 McCrory Place, Ste. 175
Orlando, FL 32803
Telephone: (407) 603-6031
E-mail: ed@normandpllc.com
amy.judkins@normandpllc.com
service@normandpllc.com
- and -
Joseph N. Kravec, Jr., Esq.
FEINSTEIN DOYLE PAYNE & KRAVEC,
LLC
Broadway, 24th Floor
New York, NY 10006-3205
Telephone: (212) 952-0014
E-mail: jkravec@fdpklaw.com
- and -
Antonio Vozzolo,Esq.
VOZZOLO LLC
345 Route 17 South
Upper Saddle River, NJ 07458
Telephone: (201) 630-8820
E-mail: avozzolo@vozzolo.com
PTC INC: Seeks Oct. 12 Extension to File Class Cert. Opposition
---------------------------------------------------------------
In the class action lawsuit captioned as KRISTAL M. KHAN, MICHELLE
R. BALLINGER, and GEORGE A. CRAAN, individually and on behalf of
all others similarly situated, v. PTC INC., THE BOARD OF DIRECTORS
OF PTC INC., THE INVESTMENT COMMITTEE OF PTC INC., and JOHN DOES
1-30, Case No. 1:20-cv-11710-WGY (D. Mass.), the Defendants ask the
Court to enter an order extending the deadline to submit their
opposition to Plaintiffs' Motion for Class Certification to October
12, 2021.
Accordingly, the Defendants' response in opposition to Plaintiffs'
Motion for Class Certification must be filed by September 6, 2021,
but given that such date is Labor Day, their deadline is September
7, 2021.
The Parties have been actively and cooperatively engaged in
discovery. As part of that process, counsel for Defendants noticed
the depositions of the three named Plaintiffs, which were set to
take place on August 24, September 2, and September. However, the
Parties have since agreed to pursue a settlement of this matter and
have scheduled a private mediation with Hunter Hughes, Esq. on
September 21. In order to conserve resources, which could be
allocated to any agreed-upon settlement, Defendants canceled the
scheduled depositions of Plaintiffs.
On August 16, 2021, the Plaintiffs filed their Motion for Class
Certification.
PTC is an American computer software and services company founded
in 1985 and headquartered in Boston, Massachusetts. The global
technology company has over 6,000 employees across 80 offices in 30
countries, 1,150 technology partners and over $1bn in revenue.
A copy of the Defendants' motion dated Sept. 2, 2021 is available
from PacerMonitor.com at https://bit.ly/3C0VJTp at no extra
charge.[CC]
The Defendants are represented by:
Keri L. Engelman, Esq.
Brian T. Ortelere, Esq.
Stephen K. Dixon, Esq.
MORGAN, LEWIS & BOCKIUS LLP
One Federal Street
Boston, MA 02110
Telephone: (617) 341-7828
Facsimile: (617) 341-7701
E-mail: keri.engelman@morganlewis.com
brian.ortelere@morganlewis.com
stephen.dixon@morganlewis.com
QUEBEC: Nunavik Crime Victims Left Out of Compensation Program
--------------------------------------------------------------
Daniel Leblanc, writing for CBC News, reports that in 2020, Quebec
awarded $152 million in compensation to victims of violence, aimed
at helping them deal with the aftermath of their trauma.
Documents filed with the Superior Court of Quebec show, however,
that of the 7,401 beneficiaries of the program, only nine were
residents of Nunavik.
The alleged inequity affecting Quebec's most northerly region, the
vast majority of whose residents are Inuit, is the subject of a
recent application to authorize the filing of a class-action
lawsuit.
Using official statistics, the lawyers behind the application
concluded that victims of criminal acts in Nunavik are
approximately 40 times less likely to receive compensation than
their counterparts living elsewhere in Quebec.
The reason is not that there are fewer instances of personal
violence in Nunavik. On the contrary: it is among the regions of
the province whose residents face the highest risk of physical or
sexual violence.
According to data compiled by the Nunavik police, some 5,000
in-person crimes are committed every year in the region, which has
a population of about 12,000.
The application to authorize a class-action suit alleges that
victims living in the Inuit communities of Nunavik are being
unjustly and systematically deprived of benefits available under
the compensation regime.
Abused, but never compensated
An Inuk woman who suffered multiple sexual assaults and violent
abuse starting from the age of five is the instigator of the legal
proceedings.
Now 24 and the mother of two children, she reported four assailants
to the authorities, and they were convicted of multiple offences in
separate trials.
According to one of her lawyers, the former Kuujjuaq resident was
never told that she might be entitled to compensation under the
Quebec regime set up in 1972 with the passage of the Crime Victims
Compensation Act.
Victor Chauvelot and his colleague Louis-Nicholas Coupal assert
that the government of Quebec has failed in its duty to promote the
existence of the compensation scheme to one of the population
groups most vulnerable to violence in the province.
"It's systematic in this region, Nunavik, that victims of criminal
acts -- even those who are cared for by social services or receive
support and guidance from representatives of public authorities --
are never told of the existence of the regime, in other words, of
their right to receive financial compensation," Chauvelot said in
an interview.
To be entitled to compensation, a victim must prove that they have
been subjected to a crime and must show evidence of psychological
or physical injury. Under Quebec law, victims eligible for the
program have the right to "prompt and fair redress or compensation
for the injury sustained."
Victims of violence living in Quebec who benefited from the
provincial program received an average of $20,000 in compensation
and services in 2020.
The damages awarded under the regime compensate victims for the
abuse they have suffered and help them reintegrate into society.
For example, in 2020, the program paid out $9 million to cover
medical assistance costs, $22 million for rehabilitation services
and nearly $120 million in temporary or permanent disability
benefits.
The statistics compiled by Chauvelot and Coupal show that
approximately eight per cent of victims of in-person crime reported
in Quebec between 2013 and 2019 received benefits.
Among residents of Nunavik, that proportion drops precipitously to
an average of 0.21 per cent for the same period.
Based on figures compiled using the postal codes of benefit
recipients, there were 86 victims of violent crime compensated
under the program in Nunavik from 2013 to 2020, while a total of
45,743 people in Quebec received compensation during the same
period.
"Despite these statistics," the request for authorization of a
class action states "the [government of Quebec] is not taking the
necessary steps to ensure that victims in Nunavik can benefit from
the compensation regime on an equal footing with other victims in
Quebec. Left to their own devices, victims in Nunavik practically
never receive compensation."
The application to authorize a class action has been filed in
Superior Court but has yet to be authorized.
For the moment, the lawyers are seeking punitive damages of $10,000
per victim who was not compensated under the Quebec regime despite
potentially being eligible. The class action is also seeking $1,000
in moral damages for each crime suffered.
New regime coming in October
The Quebec regime was created in the 1970s and modernized in 1988
with the passage of the Act respecting Assistance for Victims of
Crime. To help enforce the legislation, the government created a
network of assistance centres for victims of crime (known by its
French acronym, CAVAC), which spans nearly 200 points of service in
Quebec.
Paul-Jean Charest, a spokesperson for the Quebec Ministry of
Justice, noted that recent reforms to the compensation regime will
come into effect in October. One new measure is a retroactive
waiving of the time limit to submit a request for compensation for
crimes of sexual assault, spousal abuse and violent abuse suffered
in childhood.
"We therefore encourage all victims of crime to file a request with
IVAC [the Compensation for Crime Victims directorate], or seek help
within the CAVAC network," Charest said.
He noted that across Quebec, the CAVAC network of assistance
centres relies on the expertise of 29 Indigenous workers, with nine
serving Nunavik.
Charest added that the ministry would not be commenting on the
legal proceedings just instituted. [GN]
S-L DISTRIBUTION: Court Refuses to Decertify Class in Mode Suit
---------------------------------------------------------------
In the case, JARED MODE, on behalf of himself and all others
similarly situated, Plaintiffs v. S-L DISTRIBUTION COMPANY, LLC,
S-L DISTRIBUTION COMPANY, INC., and S-L ROUTES, LLC, Defendants,
Civil Action No. 3:18-CV-00150-KDB-DSC (W.D.N.C.), Judge Kenneth D.
Bell of the U.S. District Court for the Western District of North
Carolina, Charlotte Division, issued an Order:
a. denying S-L Distribution Company, LLC, S-L Distribution
Company, Inc., and S-L Routes, LLC's Motion to Decertify
the Collective;
b. denying S-L's Motion to Dismiss Certain Opt-In Plaintiffs
or to Deem Certain Third-Party Defendants Served;
c. denying S-L's Motions for Summary Judgment as to Opt-In
Plaintiffs Anthony Eardley and Michael Sturino;
d. granting J&M Mode Distribution, LLC's Motion for Summary
Judgment; and
e. denying Jared Mode's Motion for Summary Judgment.
S-L is a snack food company that manufactures, distributes,
markets, and sells various snack foods to retail stores in North
Carolina and other states. The company uses "IBOs" to distribute
its snacks to stores, in total covering over 3,200 distribution
routes.
The Plaintiffs, a group of snack food distributors for S-L, filed
suit on March 22, 2018, alleging violations of the Fair Labor
Standards Act ("FLSA"), 29 U.S.C. Sections 201, et seq., and the
North Carolina Wage and Hour Act ("NCWHA"), N.C. Gen. Stat.
Sections 95-25.1, et seq. The Plaintiffs allege they were
misclassified by S-L as independent contractors, rather than
employees, and are therefore entitled to certain benefits under the
FLSA; specifically, minimum wage and overtime pay for hours worked
in excess of 40 per week. In response, S-L filed counterclaims for
unjust enrichment against the Plaintiffs and third party claims for
indemnification and unjust enrichment against the distribution
companies that the Plaintiffs formed to enter into Distributor
Agreements with S-L.
Plaintiff Mode moved for conditional certification of his FLSA
claims as a collective action under 29 U.S.C. section 216(b) on
behalf of himself and other "Independent Business Operators"
("IBOs") that distributed snack food products on behalf of S-L.
The Court granted conditional certification on March 19, 2019 for
the following class: All individuals who, during any time within
the past three years, worked pursuant to a Distributor Agreement
with S-L Distribution Company, Inc. or any related company other
than individuals covered by: (i) the class/collective action
settlement in Tavares v. S-L Distribution Co., Inc., No.
1:13-cv-01313-JEJ (M.D. Pa.); (ii) the class/collective action
settlement in Roxberry v. S-L Distribution Company, Inc.,
1:16-cv-02009-JEJ (M.D. Pa.); or (iii) the class action settlement
in Bankalter v. S-L Distribution Company, Inc., 2017-SU-000549 (Pa.
Common Pleas, York County).
In doing so, the Court found that the Plaintiffs presented
sufficient evidence to overcome the fairly lenient standard to
establish that they were similarly situated under 29 U.S.C. Section
216(b). Since the entry of that order, the parties have conducted
discovery on a group of sample opt-in Plaintiffs, agreed to dismiss
numerous claims, and 225 Plaintiffs were compelled to arbitration.
The is before the Court on S-L's Motion to Decertify the
Collective; S-L's Motion to Dismiss; S-L's Motions for Summary
Judgment; J&M's Motion for Summary Judgment; and Mode's Motion for
Summary Judgment.
Discussion
I. Motion to Decertify
S-L argues that each of the three factors the Court is to consider
at stage two weigh in favor of decertification. The Plaintiffs
argue that all of the factors favor continued certification.
A. Factual and Employment Settings of Individual Plaintiffs
To determine whether a worker is an employee or an independent
contractor under the FLSA, "a court considers the 'economic
realities' of the relationship between the worker and the putative
employer." The "economic realities" test is a six-factor test that
examines: (1) the degree of control that the putative employer has
over the manner in which the work is performed; (2) the worker's
opportunities for profit or loss dependent on his managerial skill;
(3) the worker's investment in equipment or material, or his
employment of other workers; (4) the degree of skill required for
the work; (5) the permanence of the working relationship; and (6)
the degree to which the services rendered are an integral part of
the putative employer's business.
S-L asserts that decertification is appropriate because significant
material differences exist among the Plaintiffs on virtually all of
the factors under the economic realities test; differences that
require individualized inquiries. Specifically, it argues that the
record shows material differences among the Plaintiffs as to: (1)
the degree of control S-L has over the manner in which Opt-Ins
perform distribution services; (2) the opportunity for profit or
loss based on a certain level of managerial skill; (3) the level of
each Opt-In's investment in his or her respective business; and (4)
the permanence (or non-permanence) of the relationship between each
Opt-In and S-L.
The Plaintiffs argue that all of the factors favor continued
certification.
First, Judge Bell finds the despite S-L's contentions, there is
common evidence in the record that, if believed, establishes S-L's
substantial control over how the Plaintiffs were required to
perform their jobs in accordance with the standards defined in
detail by S-L. Second, he finds that while S-L does indeed cite to
differences among some Opt-In Plaintiffs, "such differences will
always exist between people due to variations in personal style and
circumstance." Regardless, he says, there is substantial common
evidence that the Opt-In Plaintiffs were similarly situated in
their ability to increase their opportunity for profit using their
own managerial skill. Third, the record shows that there are
significant similarities in the skill required to operate the
delivery routes.
Fourth, the Judge holds that while specific expenses may vary, the
differences do not necessarily reflect the absence of common
evidence. Each Opt-in Plaintiff made investments in their business
by having to purchase their routes and in buying or leasing a
vehicle. Fifth, the fact that a few Opt-Ins may have also worked
for another employer does not outweigh the common evidence on this
prong of the economic realities test. Lastly, the Judge finds that
significant common evidence exists to determine, on a collective
basis, whether all the Plaintiffs are employees or independent
contractors under the economic realities test. Though S-L
identifies some factual differences among Plaintiffs, the
similarities between Plaintiffs' claims outweigh their
differences.
Accordingly, common evidence of the Plaintiffs' factual and
employment settings weighs in favor of a finding that all the
Plaintiffs are "similarly situated" for the purpose of the FLSA.
B. S-L's Defenses
S-L first contends that the "wide disparity in the relevant factual
circumstances of employment" support decertification, as S-L has no
other way to prove that each Opt-In is an independent contractor
other than "going into the day-to-day job duties of each of the
plaintiffs to prove that each one is properly classified." Second,
S-L intends to assert that certain Plaintiffs (even if found to be
employees) are exempt from the FLSA under the Motor-Carrier (MCA)
exemption. Under the MCA exemption, the FLSA's overtime
requirements do not apply to "any employee with respect to whom the
Secretary of Transportation has power to establish qualifications
and maximum hours of service pursuant to the provisions of section
31502 of title 49."
Judge Bell finds S-L's remaining "defenses" -- credibility issues,
absentee owners, and Opt-In Plaintiffs that did not sign an
agreement with S-L -- do not support decertification. Credibility
issues are present in nearly all cases, and those pointed out by
S-L here do not warrant decertification. As for absentee owners,
the Judge says, the Plaintiffs have represented that they have
culled through the remaining Opt-In Plaintiffs and do not have any
evidence that any of the remaining Opt-Ins do not run their own
routes. So, neither S-L nor the Plaintiffs can point to any
evidence showing that any of the remaining 332 Opt-Ins are absentee
owners. As for the two Opt-Ins that S-L claims did not sign an
agreement with S-L (M. Sturino and Mode (for second territory)),
such evidence does not overcome the common evidence that weighs in
favor of a common issues trial, especially when there is evidence
that S-L required the Plaintiffs to incorporate to buy a route and
both Sturino and Mode had their mother/step-mother sign for them
because they did not have the credit to sign themselves.
C. Fairness and Procedural Considerations
As for fairness and procedural considerations, the parties
vehemently disagree as to whether this prong favors
decertification. Once again, S-L asserts that the Plaintiffs have
failed to carry their burden to show that their claims and S-L's
defenses are subject to common proof, and that proceeding as a
collective would prejudice the S-L's ability to present defenses
and/or would require mini-trials for each of the opt-in plaintiffs.
Beyond these arguments, which the Court has already addressed
above, S-L argues that there are three additional fairness and
procedural concerns that independently warrant decertification.
Judge Bell finds that the members of the collective are "similarly
situated" for the purposes of collectively adjudicating their FLSA
claims and will deny S-L's Motion to Decertify. First, he holds
that although the remedial nature of the FLSA standing alone, does
not justify allowing a case to proceed collectively, it does at
least suggest that a close call as to whether the Plaintiffs are
similarly situated should be resolved in favor of certification."
Second, the mere size of an FLSA action does not, on its own,
compel the conclusion that a decision to collectively litigate is
inherently unfair.
In sum, the interests of judicial and procedural economy, fairness,
and the primary objectives of collective FLSA actions support
moving forward with the action collectively. The Judge also
believes that, at this time, it can ably manage this class without
prejudice to either party.
In light of the above, Judge Bell finds that the members of the
collective are "similarly situated" for the purposes of
collectively adjudicating their FLSA claims and denies S-L's Motion
to Decertify.
II. Motions for Summary Judgment
Having carefully considered the parties' briefs and exhibits filed
in support and in opposition to these motions and oral arguments
made on May 20, 2021 on the Motion to Decertify, as well as the
record and applicable law, the Court will deny S-L's Motion to
Decertify the Collective, deny S-L's Motion to Dismiss, deny S-L's
Motion for Summary Judgment as to Anthony Eardley, deny S-L's
Motion for Summary Judgment as to Michael Sturino, grant J&M's
Motion for Summary Judgment, and deny Mode's Motion for Summary
Judgment for the reasons and to the extent set forth below.
A. S-L's Motions Against Opt-In Plaintiffs Eardley and Sturino
S-L seeks summary judgment against two of the more than 300 Opt-In
Plaintiffs. In these motions, S-L contends that applying the
six-factor "economic realities" test discussed above to the
relevant facts shows there can be no dispute that both Anthony
Eardley and Michael Sturino are independent contractors rather than
employees. Eardley and Sturino disagree and argue there are
disputed issues of fact (or the facts clearly support their
positions) on each of the factors.
Judge Bell agrees with Eardley and Sturino that the claims are
materially disputed and denies the motions for summary judgment as
to the status of their relationship with S-L. With respect to both
Eardley and Sturino, he holds that numerous material facts are
disputed and summary judgment cannot be entered on the question of
whether or not Eardley and/or Sturino were employees rather than
independent contractors. Indeed, the nature and substance of the
work of "employees" or "independent contractors" who perform the
same tasks for a company often overlap. Therefore, the Judge denies
S-L's motions for summary judgment and Eardley's and Sturino's FLSA
"employment" status will be decided by the jury as part of the
collective trial ordered.
B. J&M Mode Distribution's Motion
S-L filed a Third Party Complaint in the action against "all
entities owned, controlled, related to, and/or managed by any
Opt-In Plaintiff," (i.e. the corporate entities which are the
counterparties to the Distributor Agreements related to the Opt-In
Plaintiffs), asserting two claims. First, S-L alleges that it is
entitled to be "indemnified" by the Third Party Defendants ("TPDs")
under the indemnification provision of the Distributor Agreements
for all or part of any judgment or settlement in the action as well
as its attorneys' fees and costs. Second, S-L asserts "in the
alternative" a claim for unjust enrichment alleging that if the
Court finds that the TPDs were employees of S-L rather than
independent contractors then they have been unjustly "enriched as a
result of their status as independent contractors." On behalf of
all the TPDs, J&M seeks summary judgment on both of S-L's third
party claims.
Judge Bell will grant J&M's motion. First, he holds that the TPDs
are entitled to summary judgment on S-L's indemnification claim.
The Judge finds that allowing S-L to recover its attorneys' fees
under an indemnification provision simply as a result of the
Plaintiffs participating in an unsuccessful FLSA action would,
however, be wrong for several reasons. He says, allowing the
recovery of attorneys' fees in this way would be inconsistent with
the limited attorneys' fees provisions in the FLSA. Similarly,
allowing S-L's indemnification claim to proceed would inevitably
chill the right of a putative FLSA plaintiff in these circumstances
to pursue a FLSA claim. Moreover, even if S-L's indemnification
claim was not inconsistent with the FLSA, the basis for the
asserted indemnification is not encompassed by the indemnification
provision. Finally, the "notice" requirement in the
indemnification provision which S-L claims was breached26 is either
inapplicable or was fulfilled.
Second, Judge Bell holds that S-L could not, based on its own
elections under the Distributor Agreements, create an opportunity
to recover against the TPDs under a quasi-contractual claim. In
sum, all of the parties' rights and obligations flow from their
express contractual relationship, which precludes any claim of
unjust enrichment between them and entitles J&M and the other TPDs
to summary judgment on that claim.
C. Plaintiff Mode's Motion
The final summary judgment motion before the Court is Plaintiff
Mode's motion on behalf of the collective class of Opt-In
Plaintiffs seeking summary judgment on S-L's counterclaim for
unjust enrichment. While S-L's counterclaims against Plaintiffs are
similar, if not mostly identical to S-L's third party claims, S-L
stands in a different posture with respect to the Plaintiffs who,
unlike the TPDs, are not the named counterparties to the
Distributor Agreements. Accordingly, Judge Bell reaches a different
conclusion, only for purposes of the summary judgment motion, as to
the viability of S-L's counterclaim.
Like the TPDs, the Plaintiffs argue that S-L cannot maintain its
unjust enrichment claim because it is "grounded in contract." And,
S-L's counterclaim offers substantial support for the Plaintiff's
contention, repeatedly tying the relationship between S-L and the
Plaintiffs to the Distributor Agreements. Broadly stated, the Judge
says, the essence of a claim for unjust enrichment in these
circumstances is that even if a party has been the victim of
unlawful conduct, if it has nevertheless received benefits related
to the wrongdoing that in equity should be offset against its
damages then it should be required to offset those benefits.
S-L alleges that the Plaintiffs received numerous benefits in
connection with their distribution work. The Judge finds that there
are disputed material facts as to whether and to what extent such
benefits were in fact received and whether it would be "unjust" for
the Plaintiffs to retain those benefits.
Accordingly, Mode's motion for summary judgment will be denied,
with one caveat. The Judge agrees with the Plaintiffs that to the
extent S-L seeks attorneys' fees as part of its claim for unjust
enrichment, S-L is not entitled to recover attorneys' fees for the
same reasons discussed in connection with J&M's motion.
III. Motion to Dismiss
S-L moved to dismiss Opt-in Plaintiffs Barbara Meeker, Nelson
Guevara, Timothy Barnes, Joseph Covganka, Jose Duarte, John Stosick
III, Philip Hines, Harold Leslie, Jr., Norma Arriaga, Brian O'Neal,
Lazaro Erillo, Barry Sommers, Thomas Orasco, James Weniger.
Alternatively, S-L moved the Court for an order deeming the
following Third-Party Defendants served pursuant to Rule 4 of the
Federal Rules of Civil Procedure: Barbara Meeker LLC, Bataan Snacks
LLC, Cicero Snacks LLC, Covganka & Sons, Inc., Duarte Delivery,
Inc., Excellence Distributing LLC, Go Hard Retail, Leslie Snacks
LLC, Norma L. Arriaga Distribution Company Inc., O-World LLC, Pam's
Marketing LLC, Southernmost Distributors LLC, Thomas Orasco
Distributing LLC, and Tri-City Snacks LLC (collectively, "Relevant
Third-Party Defendants") served.
S-L argues that the Relevant Third-Party Defendants (each of which
has a principal, officer member, and/or employee who opted into
this lawsuit as an Opt-in Plaintiff) clearly have actual knowledge
of the Third-Party Complaints filed against them but have sought to
evade service, while the Opt-In Plaintiffs associated with these
Third-Party Defendants continue to seek affirmative relief against
S-L. In order to stop this type of gamesmanship by the Relevant
Opt-In Plaintiffs and the Third-Party Defendants they control, the
Court should either (1) dismiss the Opt-in Plaintiffs associated
with the Third-Party Defendants, or alternatively, (2) deem the
Third-Party Defendants served under Federal Rule of Civil Procedure
4(h).
Because Judge Bell is dismissing S-L's claims against the
Third-Party Defendants for indemnification and unjust enrichment,
he need not dismiss Opt-In Plaintiffs who have allegedly evaded
service on behalf of their Distribution Companies or deem their
relevant Distribution Companies served. Thus, he will deny S-L's
Motion to Dismiss as moot.
Order
In light of the foregoing, Judge Bell denied S-L's Motion to
Decertify. The case will proceed as a collective action under 29
U.S.C. Section 216(b). The Court will continue to monitor and
assess the feasibility of doing so and will act accordingly if it
determines that collective resolution, for any reason, proves to be
improper.
The Judge denied S-L's Motions for Summary Judgment as to Opt-In
Plaintiffs Anthony Eardley and Michael Sturino.
Judge Bell granted J&M Mode Distribution, LLC's Motion for Summary
Judgment.
The Judge denied Mode's Motion for Summary Judgment with the caveat
described above with respect to attorneys' fees.
S-L's Motion to Dismiss is denied as moot in light of the Court's
ruling on J&M's Motion for Summary Judgment.
Trial of the matter will be set for the Court's Nov. 8, 2021
Charlotte civil term.
A full-text copy of the Court's Aug. 31, 2021 Order is available at
https://tinyurl.com/ezxvdn3x from Leagle.com.
SAINT-GOBAIN PERFORMANCE: Lawyers Discuss PFOA Class Settlements
----------------------------------------------------------------
Cheryth Youngmann at benningtonbanner.com reports that lawyers held
public meetings here to address questions about a recent $65.25
million preliminary settlement over the chemical contamination of
village and private water supply in the village.
The class-action suit pinned Saint-Gobain Performance Plastics
Corp., Honeywell International Inc., and 3M Co. for unsafe levels
of perfluorooctanoic acid, or PFOA, found in drinking water.
Attorneys Steve Schwarz and James Bilsborrow -- two of the four
attorneys representing the plaintiffs in the suit -- conducted the
meetings at the Reynolds-Gilchrest Multi-Purpose Building in
Hoosick Falls from 6 to 8 p.m. both nights.
"After five years of litigation, this settlement represents a great
victory and an opportunity for settlement class members to recoup
costs," Bilsborrow said. He said this settlement is likely the
largest per capita class-action suit to date for this family of
chemicals.
The suit, Baker v. Saint-Gobain Performance Plastics, began in
2016. Plaintiffs held that all three companies contaminated public
and private water supplies with PFOA -- an industrial plastic found
in nonstick wares and outdoor apparel, according to Saint-Gobain's
website. The chemical has been linked to testicular cancer, kidney
cancer and birth complications when ingested.
The 2015 discovery of chemical contaminants in their water supply
rattled the New York villagers. Early in the water crisis, Michele
Baker said in written testimony, "Their business practices have led
to the contamination of our greatest asset, clean safe drinking
water -- something we all need to survive." Baker is a homeowner in
Hoosick Falls, and one of the 10 plaintiffs listed in the
settlement agreement.
The settlement is intended to offset property value loss and
medical screening costs caused by chemical contaminants.
There are four classes of the suit. People who drank contaminated
water for at least six months between 1996 and 2016 in Hoosick
Falls, and people whose PFOA blood count was greater than 1.86 per
billion, are eligible for medical screening. They may file a claim
to become a member of the Medical Monitoring Settlement Class.
According to the Hoosick Falls PFOA Settlement website, $23 million
of the settlement will cover the medical screening costs of
participants in this class.
The testing was developed by a PFOA expert and will screen for
medical conditions linked to PFOA exposure, including kidney and
testicular cancer, preeclampsia, pregnancy-related hypertension,
ulcerative colitis, thyroid disease and high cholesterol,
Bilsborrow said. The attorneys expected that the $23 million will
pay for 10 years of screenings, based on an estimate of 2,000
participants.
Any money left over will be divided among participants based on the
number of years they attended screenings. People who qualify for
the Medical Monitoring Class but have moved away from Hoosick Falls
should still be able to participate in the testing at their general
practitioner's office.
Homeowners who owned property on or before Dec. 16, 2015 -- the
date the EPA issued orders that Hoosick Falls residents shouldn't
drink municipal water -- are also eligible for payments. If
someone's water supply was contaminated with PFOA either through a
private well or the municipal water supply, they might be members
of the other three categories in the settlement: the Municipal
Water Property Settlement Class, the Private Well Water Property
Settlement Class, or the Nuisance Settlement Class.
An estimated 1,300 properties connected to municipal water supply
and about 500 private well owners are expected to be eligible.
Schwarz and Bilsborrow said they expect that confirmed Municipal
Property Settlement Class members will receive 9 to 10 percent of
their property's 2015 value. Residents who think they will qualify
can estimate their payment by reading Hoosick's 2015 tax roll.
There is no eligibility threshold for private wells, and PFOA found
in any amount means the homeowner would qualify for payment under
the Nuisance Class.
Because of a nuance in New York State law, property owners
connected to municipal water are excluded from the Nuisance
Settlement Class, but home owners whose water comes from a private
well -- and their renters, if they have a vested interest in the
property -- are eligible to file a claim in this class. With a $7.7
million allotment that will be divided equally between all affirmed
claims, the Nuisance Settlement Class is estimated to pay $9,000 to
$10,000 per person.
The settlement has a provision for any executors of will. People
may file claims on behalf of deceased loved ones and those declared
mentally incompetent if properties otherwise qualify.
But Bilsborrow stressed that people should file a claim by Jan. 24,
2022, to receive payments or benefit from the medical screening.
Support our journalism.
"If you're one of the four classes, you have to take action," he
said. Community members can do this by filing a claim form
available on the settlement website, or by requesting a hard copy
from the third-party settlement administrator at
info@HoosickFallsPFOASettlement.com.
A claim form will require different documentation based on the
class claimed. Residents who wish to become members of the Medical
Monitoring Class will be required to provide a blood test of a PFOA
level at or above the required 1.86 per billion. If someone
misplaced test results, a process will soon be outlined on the
settlement website by which people can acquire a copy of their
results from the Department of Health.
To qualify for the Nuisance or Private Well classes, residents
should provide positive PFOA private well test results in any
concentration. If results were lost, the settlement administrator
has documentation of every positive well test and will provide
proof on request. Residents of Hoosick Falls may file a claim for
more than one class, but must provide the requested documentation
for each.
"This is not a process that is intended to exclude people; this is
a process meant to include people," Schwarz said.
Packets outlining the claims process were sent to hundreds of
Hoosick Falls residents, and the attorneys said that community
members should not hesitate to reach out for help in the process.
"We represent you," said Bilsborrow. "This is our job."
Homeowners and residents may still exclude themselves from or
object to the settlement if they file official forms by mail or at
the class action website by Dec. 9, 2021.
A judge must finalize the settlement after the courts receive
official objections. The courts set the final approval hearing for
11 a.m. on Feb. 2, 2022.
If no objections are made -- or if the objections are thrown out in
court and no party appeals -- the settlement will take effect about
21 days after the final hearing. Confirmed settlement class members
should receive checks or gain medical screening benefits within
about three months of the effective date.
Attendees seemed hopeful.
"I think this is a great thing for our community, and everyone
should take advantage of it," Town Supervisor Mark Surdam said.
The mayor of Hoosick Falls, Rob Allen, echoed this: "It's the first
step forward in something that so many different parts of our
community -- our government, our citizens -- have been working on.
So it's nice to see we've gotten to this point." He also
highlighted an interview he conducted with Steve Schwarz.
Allen noted that this isn't the end: The town has more developments
coming in the next year. The village as a municipal entity will sit
down with Saint-Gobain, Honeywell and 3M to come to an agreement.
But he recognized the preliminary settlement as an important win.
"I really hope that people take the initiative and make it in by
that late January deadline. Get the help to move forward," said
Allen. [GN]
SELECTQUOTE INC: Howard G. Smith Reminds of October 15 Deadline
---------------------------------------------------------------
Law Offices of Howard G. Smith reminds investors of the upcoming
October 15, 2021 deadline to file a lead plaintiff motion in the
case filed on behalf of investors who purchased SelectQuote, Inc.
securities between February 8, 2021 and May 11, 2021, inclusive
(the "Class Period").
Investors suffering losses on their SelectQuote investments are
encouraged to contact the Law Offices of Howard G. Smith to discuss
their legal rights in this class action at 888-638-4847 or by email
to howardsmith@howardsmithlaw.com.
On May 11, 2021, SelectQuote held a conference call in connection
with its third quarter 2021 financial results during which it
disclosed that its fourth quarter results would be impacted by a
"negative cohort and tail adjustment" due to "lower second-term
persistency for the 2019 cohort."
On this news, the Company's share price fell $5.50, or 20%, to
close at $21.90 per share on May 12, 2021, on unusually heavy
trading volume.
The complaint filed in this class action alleges that throughout
the Class Period, Defendants made materially false and/or
misleading statements, as well as failed to disclose material
adverse facts about the Company's business, operations, and
prospects. Specifically, Defendants made material
misrepresentations concerning the following: (1) that SelectQuote's
2019 cohort was underperforming; (2) that, as a result, the
Company's financial results would be adversely impacted; and (3)
that, as a result of the foregoing, Defendants' positive statements
about the Company's business, operations, and prospects were
materially misleading and/or lacked a reasonable basis.
If you purchased or otherwise acquired SelectQuote securities
during the Class Period, you may move the Court no later than
October 15, 2021 to ask the Court to appoint you as lead plaintiff
if you meet certain legal requirements. To be a member of the class
action you need not take any action at this time; you may retain
counsel of your choice or take no action and remain an absent
member of the class action. If you wish to learn more about this
class action, or if you have any questions concerning this
announcement or your rights or interests with respect to these
matters, please contact Howard G. Smith, Esquire, of Law Offices of
Howard G. Smith, 3070 Bristol Pike, Suite 112, Bensalem,
Pennsylvania 19020, by telephone at (215) 638-4847, toll-free at
(888) 638-4847, or by email to howardsmith@howardsmithlaw.com, or
visit our website at www.howardsmithlaw.com. [GN]
SMARTSHEET INC: Faces $7.3MM Class Action Indemnification Claim
---------------------------------------------------------------
Smartsheet Inc. said in its Form 10-Q Report filed with the
Securities and Exchange Commission on September 8, 2021, for the
quarterly period ended July 31, 2021, that the company is facing an
indemnification suit wherein plaintiffs are asking for advancement
of legal fees estimated around $7.3 million as of July 31, in
connection with a class action litigation.
The indemnification claim was made against the Company by a former
director, Ryan Hinkle, and Insight Venture Partners VII, L.P. and
certain affiliated entities that are former shareholders of the
Company -- IVP Parties -- relating to a purported class action
litigation in which the IVP Parties are defendants.
On January 29, 2021, the IVP Parties filed a complaint against the
Company in the Superior Court of Washington, King County, for the
advancement of legal fees, costs, and expenses incurred in
defending the purported class action claim.
"While these matters remain in dispute, we have recorded an
estimated liability of $7.3 million as of July 31, 2021 in
connection with these lawsuits, which is classified in general and
administrative expenses in our condensed consolidated statements of
operations and comprehensive loss," Smartsheet said.
"At this time, although there can be no assurance, we do not
believe there is a reasonable possibility that a material loss in
excess of amounts accrued may be incurred," the Company added.
Smartsheet Inc. was incorporated in the State of Washington in
2005, and is headquartered in Bellevue, Washington. The Company is
the enterprise platform for dynamic work, enabling teams and
organizations of all sizes to plan, capture, manage, automate, and
report on work at scale.
SONIM TECHNOLOGIES: '33 Act Federal Action Settlement Gets Final OK
-------------------------------------------------------------------
Sonim Technologies, Inc. said in its Form 10-Q Report filed with
the Securities and Exchange Commission on August 16, 2021, for the
quarterly period ended June 30, 2021, that the court presiding over
the '33 Act Federal Action granted final approval of the
settlement.
On September 20, 2019, a purported Sonim stockholder who allegedly
purchased stock registered in Sonim's initial public offering
("IPO") filed a putative class action complaint in the Superior
Court of the State of California, County of San Mateo, captioned
Pearson v. Sonim Technologies, Inc., et al., Case No. 19CIV05564,
on behalf of himself and others who purchased shares of Sonim
registered in the IPO.
On October 4 and 16, 2019, two additional purported class action
complaints substantially similar to the Pearson Action were filed
on behalf of different plaintiffs yet the same putative class of
Sonim stockholders, in the same court as the Pearson Action (the
"'33 Act State Court Actions").
The defendants asked the Superior court to dismiss the "33 Act
State Court Actions based on the provision in the Company's Amended
and Restated Certificate of Incorporation requiring stockholders to
file and litigate in federal court any claims under the Securities
Act of 1933. On December 7, 2020, the Superior Court entered an
order granting defendants' motion to dismiss.
On October 7, 2019, a substantially similar putative class action
lawsuit was filed in the United States District Court for the
Northern District of California (the "'33 Act Federal Action").
All four complaints allege violations of the Securities Act of 1933
by Sonim and certain of its current and former officers and
directors for, among other things, alleged false or misleading
statements and omissions in the registration statement issued in
connection with the IPO, relating primarily to an alleged failure
to disclose software defects in Sonim's phones and alleged
misstatements about performance characteristics of Sonim's phones.
In July 2020, the Company entered into an agreement with the Lead
Plaintiff in the '33 Act Federal Action to settle that case on a
class wide basis for $2.0 million. As a result, the Company has
paid out the $2.0 million settlement as of December 31, 2020.
On March 5, 2021, the court presiding over the '33 Act Federal
Action granted final approval of the settlement.
Sonim Technologies, Inc. provides ruggedized mobile phones and
accessories for task workers. It offers ruggedized mobile phones,
such as Sonim XP8, Sonim XP5s, and Sonim XP3 based on the Android
platform that are capable of attaching to public and private
wireless networks; industrial-grade accessories, including remote
speaker microphones, multi-bay charging accessories, and in-vehicle
hands-free voice communications solutions; and cloud-based software
and application services. Sonim Technologies, Inc. sells its mobile
phones and accessories primarily to wireless carriers in the United
States and Canada. The company was formerly known as NaviSpin.com,
Inc. and changed its name to Sonim Technologies, Inc. in December
2001. Sonim Technologies, Inc. was incorporated in 1999 and is
headquartered in San Mateo, California.
SOUTHLAND MANAGEMENT: Underpays Nursing Assistants, Madrid Claims
-----------------------------------------------------------------
PATRICIA MADRID, individually and on behalf of all others similarly
situated, Plaintiff v. SOUTHLAND MANAGEMENT LLC dba SOUTHLAND; and
DOES 1 to 25, inclusive, Defendants, Case No. 21STCV33336 (Cal.
Super., Los Angeles Cty., September 9, 2021) is a class action
against the Defendants for violations of the California Labor Code,
the California Public Policy, and the California Business and
Professions Code including failure to compensate for all hours
worked, failure to pay minimum wages, failure to pay overtime,
failure to provide accurate itemized wage statements, failure to
pay wages owed every pay period, failure to maintain accurate
records, failure to give rest breaks, failure to give meal breaks,
failure to pay wages when employment ends, failure to reimburse
business expenses, retaliation, wrongful discharge, and unfair
business practices.
The Plaintiff worked for Southland as a certified nursing assistant
at Southland Care Center in Norwalk, California until on or around
June 1 or 2, 2021.
Southland Management LLC, doing business as Southland, is an
operator of a care center located in Norwalk, California. [BN]
The Plaintiff is represented by:
Harout Messrelian, Esq.
MESSRELIAN LAW INC.
500 N. Central Ave., Suite 840
Glendale, CA 91203
Telephone: (818) 484-6531
Facsimile: (818) 956-1983
E-mail: hm@messrelianlaw.com
SPLUNK INC: Nov. 18 Hearing on Motion to Dismiss Class Suit
-----------------------------------------------------------
Splunk Inc. said in its Form 10-Q Report filed with the Securities
and Exchange Commission on September 8, 2021, for the quarterly
period ended July 31, 2021, that a motion seeking dismissal of a
class action lawsuit involving the company and other defendants is
scheduled for hearing on November 18, 2021.
A putative class action lawsuit alleging violations of the federal
securities laws was filed on December 4, 2020, in the U.S. District
Court for the Northern District of California against the company,
its chief executive officer and chief financial officer.
The initial complaint alleged violations of the Securities Exchange
Act of 1934, as amended, for allegedly making materially false and
misleading statements regarding the Company's financial guidance
and asserted a putative class period of October 21, 2020 to
December 2, 2020.
On March 16, 2021, the Court appointed Louisiana Sheriffs' Pension
& Relief Fund as lead plaintiff and approved its selection of lead
plaintiff counsel in the case.
On June 7, 2021, the lead plaintiff filed an amended complaint
which expands the putative class period to run from March 26, 2020
to December 2, 2020, and alleges that defendants made materially
false and misleading statements regarding the Company's marketing
efforts, hiring practices, and retention of personnel.
The lead plaintiff seeks unspecified monetary damages and other
relief.
On July 27, 2021, defendants filed a motion to dismiss the amended
complaint, which is scheduled for hearing on November 18, 2021.
Several derivative lawsuits related to the securities class action
were filed in February, March, and April 2021 in the U.S. District
Court for the Northern District of California and California
Superior Court, San Francisco County.
The lawsuits name the CEO, CFO, and many of the board members as
defendants, and the company as a nominal defendant.
"The lawsuits allege claims for breach of fiduciary duties, unjust
enrichment, waste of corporate assets, abuse of control, and gross
mismanagement against the defendants, and claims for contribution
under Sections 10(b) and 21D of the Exchange Act against only our
CEO and CFO," the Company said.
The plaintiffs seek unspecified monetary damages and other relief
on behalf of the company.
The court has stayed the actions pursuant to stipulation of the
parties until after a ruling on the pending motion to dismiss the
federal securities case.
Splunk provides innovative cloud and software offerings that
deliver and operationalize insights from data generated by digital
systems. This data is growing significantly as a direct result of
the prevalence and importance of digital systems used by today's
organizations.
STATE FARM: Baker Loses Class Certification Bid
-----------------------------------------------
In the class action lawsuit captioned as RASHAD BAKER, on behalf of
himself and all others similarly situated, et al., v. STATE FARM
MUTUAL AUTOMOBILE INSURANCE COMPANY, Case No. 4:19-cv-00014-CDL
(M.D. Ga. ), the Court entered an order denying the Plaintiffs'
motion for class certification.
Given the Court's ruling on class certification, the only claims
remaining in this action are the individual claims of the
Plaintiffs. The dispositive motion deadline has passed for those
claims, and no dispositive motion was filed.
The Court intends to try those claims during its March 2022 trial
term. The Court will issue a notice of pretrial conference in late
December 2021 or early January 2022.
Rashad Baker and Zelma Stovall were both insureds under State Farm
vehicle insurance policies. The form vehicle insurance policy under
which Plaintiffs were insured provides that State Farm "will pay
for loss caused by collision to a covered vehicle."
State Farm Insurance is a large group of insurance companies
throughout the United States with corporate headquarters in
Bloomington, Illinois.
A copy of the Court's order dated Sept. 2, 2021 is available from
PacerMonitor.com at https://bit.ly/3E93N6f at no extra charge.[CC]
STATE FARM: Martino Must File Class Status Bid by Jan. 14, 2022
---------------------------------------------------------------
In the class action lawsuit captioned as Martino v. State Farm
Mutual Automobile Insurance Company, Case No. 4:20-cv-00910 (W.D.
Mo.), the Hon. Judge Stephen R. Bough entered an order as follows:
1. The class-certification discovery deadline is extended to
December 31, 2021;
2. Plaintiff's Motion for Class Certification shall be filed
on or before January 14, 2022;
3. Defendant's Opposition to the Motion for Class
Certification shall be filed on or before February 14,
2022; and
4. Plaintiff's Reply Suggestions in Support of the Motion for
Class Certification shall be filed on or before March 15,
2022.
The discovery shall be limited to the deposition of the previously
noticed individual and disputes related to written discovery which
has already been produced, Judge Bough says.
The nature of suit states diversity -- insurance contract.
State Farm operates as an insurance company.[CC]
TESARO INC: Delaware Chancery Court Dismisses Kihm Class Suit
-------------------------------------------------------------
In the case, JOHN H. KIHM, individually and on behalf of all others
similarly situated, Plaintiff v. DAVID M. MOTT, LEON O. MOULDER,
DR. MARY LYNNE HEDLEY, TIMOTHY R. PEARSON, KAVITA PATEL, LAWRENCE
M. ALLEVA, GARRY A. NICHOLSON, PASCALE WITZ, DR. BETH SEIDENBERG,
NEW ENTERPRISE ASSOCIATES 13, L.P., NEA PARTNERS 13, L.P., NEA 13
GP, LTD, NEA 15 OPPORTUNITY FUND, L.P., NEA PARTNERS 15-OF, L.P.,
NEA 15 GP, LLC, NEW ENTERPRISE ASSOCIATES, INC., NEA MANAGEMENT
COMPANY, LLC, CITIGROUP, INC., and CITIGROUP GLOBAL MARKETS, INC.,
Defendants, C.A. No. 2020-0938-MTZ (Del. Ch.), Judge Morgan T. Zurn
of the Court of Chancery of Delaware grants the pending motions to
dismiss in full.
In December 2018, the board of a public oncology company agreed to
sell the company to a major multinational pharmaceutical
conglomerate in a cash tender offer with a second-step merger. With
the benefit of books and records obtained in an action brought
under 8 Del. C. Section 220, a former stockholder in the target
company brought this post-closing class action complaint for
damages, alleging the acquisition was the product of actionable
breaches of fiduciary duty by the company's directors. The
Plaintiff challenges the sale process as rushed and inadequate; he
also challenges the sale's timing.
According to the Plaintiff, the company's long-time private equity
sponsor favored a near-term sale so that it could exit its
position, cash out its investors, and facilitate raising an
important upcoming fund. In the complaint, the private equity
sponsor is everywhere and nowhere: The Plaintiff offers pages of
allegations about the sponsor's motivations, but does not assert
the sponsor was a controlling stockholder, nor that the sponsor or
any of its agents had any specific role in the flawed sale process.
Instead, the Plaintiff pins those flaws on the target's financial
advisors and its managers.
The target's board ultimately recommended its stockholders tender
their shares at the agreed-upon price of $75 per share,
representing a 182% premium over the stock's unaffected trading
price. In support of its recommendation, the board issued an
eighty-page disclosure statement discussing the proposal, including
fairness opinions from two financial advisors. An overwhelming
majority of the company's stockholders chose to tender their
shares; the acquisition closed in January 2019.
Plaintiff Kihm is a former stockholder of Tesaro. On Nov. 2, 2020,
the Plaintiff filed his class action Complaint challenging the
Acquisition. The Plaintiff's Verified Class Action Complaint
alleges breaches of fiduciary duty in connection with the January
2019 cash sale of Tesaro to GlaxoSmithKline, plc ("GSK") for $75
per share, or approximately $5.1 billion.
The Complaint asserts four counts. Count I alleges breaches of
fiduciary duty against Moulder, Hedley, and Pearson in their
capacities as officers. Count II alleges breaches of fiduciary duty
against Mott, Moulder, Patel, Alleva, Hedley, Nicholson, Witz, and
Seidenberg in their capacities as directors. Count III alleges NEA
aided and abetted the Individual Defendants' breaches. Count IV
similarly alleges Citi aided and abetted the Individual Defendants'
breaches. On January 20, 2021, Defendants filed three motions to
dismiss the Complaint under Court of Chancery Rule 12(b)(6) (the
"Individual Defendants' Motion," the "Citibank Motion," and the
"NEA Motion," together, the "Motions").54 The parties fully briefed
the Motions and the Court heard oral argument on May 11.55
On the motion to dismiss, the Defendants -- members of the target's
board, its financial advisor, and the private equity sponsor --
seek to "cleanse" the transaction under Corwin v. KKR Financial
Holdings LLC. The Court has observed the rhythm of post-closing
shareholder litigation: The Defendants hope to secure judicial
deference by pointing to a majority stockholder vote, then the
Plaintiffs seek more rigorous review by arguing a controlling
stockholder or an uninformed vote places the transaction beyond
Corwin's reach. But the Plaintiff stops short of alleging the
target's private equity sponsor was a controlling stockholder.
Having declined to argue the tender offer was coercive, the
Plaintiff is left with a single path to avoid Corwin: Alleging the
target's disclosures were inadequate and the stockholders
uninformed. He points to four omissions from the company's
recommendation statement, which he argues make the disclosures
deficient.
Discussion
The standards governing a motion to dismiss under Court of Chancery
Rule 12(b)(6) for failure to state a claim for relief are well
settled: (i) all well-pleaded factual allegations are accepted as
true; (ii) even vague allegations are well-pleaded if they give the
opposing party notice of the claim; (iii) the Court must draw all
reasonable inferences in favor of the non-moving party; and ([iv])
dismissal is inappropriate unless the plaintiff would not be
entitled to recover under any reasonably conceivable set of
circumstances susceptible to proof.
The Individual Defendants argue that the fiduciary duty claims in
Counts I and II must be dismissed under Corwin because a fully
informed, uncoerced majority of Tesaro shareholders approved the
Acquisition by tendering their shares, and, therefore, the business
judgment rule unrebuttably applies. Even if Corwin is inapplicable,
the Individual Defendants argue that the Plaintiff's fiduciary duty
counts fail on their merits. NEA and Citi argue that the aiding and
abetting claims against them in Counts III and IV must be dismissed
for lack of a predicate breach and, in the alternative, because the
Plaintiff failed to plead knowing participation in any such
breach.
A. Counts I and II: Breach of Fiduciary Duty
Counts I and II allege breaches of fiduciary duty against the
Individual Defendants.
Judge Zurn holds that because Tesaro stockholders received cash for
their shares, the Acquisition is presumptively subject to at least
enhanced scrutiny under Revlon, Inc. v. MacAndrews & Forbes
Holdings, Inc. But the Acquisition was ratified when a
fully-informed majority of Tesaro stockholders tendered their
shares, in the absence of a conflicted controlling stockholder.
Thus, under Corwin, the business judgment is the appropriate
standard of review. Because the Plaintiff does not allege waste,
his breach of fiduciary duty claims against the Individual
Defendants must be dismissed.
The Judge is satisfied that the Plaintiff has failed to plead that
the stockholders' decision to tender their shares was not fully
informed. The Plaintiff does not argue that decision was coerced or
that a conflicted controlling stockholder put the Acquisition
beyond Corwin's reach. This, given Corwin's application int he
case, "the only claim the Plaintiff could state that would overcome
application of the business judgment rule is a claim for waste."
The Judge holds that the Plaintiff has not attempted to plead that
claim. Thus, the Individual Defendants' Motion is granted with
respect to the breach of fiduciary duty claims in Counts I and II.
B. Counts III and IV: Aiding and Abetting
Count III alleges NEA aided and abetted the breaches of fiduciary
duty alleged against the Individual Defendants. Count IV similarly
alleges Citi aided and abetted those breaches.
To plead a claim for aiding and abetting breach of fiduciary duty,
a plaintiff must allege (i) the existence of a fiduciary
relationship, (ii) a breach of the fiduciary's duty, (iii) knowing
participation in that breach by the defendants, and (iv) damages
proximately caused by the breach. An adequate pleading of knowing
participation requires a pleading of scienter.
Judge Zurn opines that "an aiding and abetting claim may be
summarily dismissed based upon the failure of the breach of
fiduciary duty claims against the director defendants." Lacking a
well-pled predicate breach of fiduciary duty, the Judge finds that
the complaint does not state a claim for aiding and abetting. The
NEA Motion is granted with respect to Count III and the Citi Motion
is granted with respect to Count IV.
Conclusion
After careful consideration, Judge Zurn concludes that none of
those claims are meritorious. Because he is satisfied that a
fully-informed, uncoerced majority of the target's shareholders
ratified the transaction, he grants the pending motions to dismiss
in full.
A full-text copy of the Court's Aug. 31, 2021 Memorandum Opinion is
available at https://tinyurl.com/jvdp4x2r from Leagle.com.
Joel Friedlander -- jfriedlander@friedlandergorris.com -- and
Jeffery M. Gorris -- jgorris@friedlandergorris.com -- FRIEDLANDER &
GORRIS, P.A., in Wilmington, Delaware; R. Bruce McNew , COOCH &
TAYLOR, P.A., in Wilmington, Delaware; Randall J. Baron and David
Wissbroecker, ROBBINS GELLER RUDMAN & DOWD LLP, San Diego,
California; Christopher H. Lyons, ROBBINS GELLER RUDMAN & DOWD LLP,
Nashville, Tennessee; Peretz Bronstein, BRONSTEIN, GEWIRTZ &
GROSSMAN, LLC, in New York City, Attorneys for Plaintiff.
A. Thompson Bayliss -- Bayliss@AbramsBayliss.com -- and April M.
Kirby , ABRAMS & BAYLISS LLP, in Wilmington, Delaware; Peter L.
Welsh and Elena Weissman Davis, ROPES & GRAY LLP, Boston,
Massachusetts; Timothy R. Farrell, ROPES & GRAY LLP, in Chicago,
Illinois; Christian Reigstad, ROPES & GRAY LLP, in New York City,
Attorneys for Defendants David M. Mott, Leon O. Moulder, Dr. Mary
Lynne Hedley, Timothy R. Pearson, Kavita Patel, Lawrence M. Alleva,
Garry A. Nicholson, Pascale Witz, and Dr. Beth Seidenberg.
Paul D. Brown -- brown@chipmanbrown.com -- and Joseph B. Cicero --
Cicero@ChipmanBrown.com -- CHIPMAN BROWN CICERO & COLE, LLP,
Wilmington, Delaware; Roger A. Lane and Courtney Worcester, HOLLAND
& KNIGHT LLP, in Boston, Massachusetts, Attorneys for Defendants
New Enterprise Associates 13, L.P., NEA Partners 13, L.P., NEA 13
GP, LTD, NEA 15 Opportunity Fund, L.P., NEA Partners 15-OF, L.P.,
NEA 15 GP, LLC, New Enterprise Associates, Inc., NEA Management
Company, LLC.
Daniel A. Mason -- dmason@paulweiss.com -- PAUL, WEISS, RIFKIND,
WHARTON & GARRISON LLP, Wilmington, Delaware; Bruce Birenboim,
Susanna M. Buergel, and Christopher L. Filburn, PAUL, WEISS,
RIFKIND, WHARTON & GARRISON, LLP, in New York City, Attorneys for
Defendants Citigroup, Inc. and Citigroup Global Markets, Inc..
TOYOTA MOTOR: Lawyer Shares Details on 4Runner Vehicles' Rust Suit
------------------------------------------------------------------
todayuknews.com reports that mid-August saw news of the latest
Toyota class-action lawsuit and recall extravaganza, involving
premature rust on frames of 4Runners from 2003-2009. Owners of this
vintage 4Runner found significant portions of their car's
undercarriage rusted through, presenting a severely threatening
driving experience.
Lead Plaintiff Gary Weinreich brought this issue to Environmental
Litigation Group, P.C.'s (ELG) attention when his 4Runner
experienced a problem. Its steering control arm broke while Gary
was driving, causing him to run off of the road. Associate Attorney
Chandler Duncan spoke to us about some details surrounding the
case.
How does a class-action lawsuit work?
"We were an assessment firm at first. Now we do all sorts of toxic
exposures, product liability, etc." Duncan said. She has a master's
in public health, which means this case is right up her alley. "We
have 100 clients or more," Duncan said. "Everything is still in its
infancy. [A class-action lawsuit] can take a massive group, a
relatively small group, a community, or a neighborhood." Duncan
said. "It varies, depending on if it's a personal injury or toxic
exposure. It all depends."
Duncan illustrated that a firm must prove "similarity" to mount a
class-action lawsuit. In the eyes of the law, "similarity" is
achieved when elements that are similar to each other can be
perceived as a unified group. "Typically the plaintiff has to be
similarly situated. The law doesn't specify how many there has to
be," Duncan said, "but two isn't enough. It could be more than
100,000."
Could this case include personal injury?
Rusted parts of 4Runner frame | ELG P.C.
"Currently this case is just product liability," Duncan said, "but
there is potential for it to be personal injury as well because
when you have a defective vehicle, it's very dangerous." In this
case, the lack of personal injury doesn't necessarily make
Weinreich's case weaker, according to Duncan.
"We still have a huge products liability issue where Toyota
manufactured a defective product and then sold it to consumers,"
Duncan said. "We have documentation that shows they likely knew the
4Runner was defective for a long time."
According to Duncan, Toyota never said anything to consumers about
the rust problem. "That in and of itself is a massive lawsuit and
makes a good case," Duncan said. However, there is still room for a
personal injury case. "Adding personal injury to that is just a
separate case of similar proportions."
Toyota responsible for Dana Holding Corporation's failure
"Typically when we first get a client we'll ask for a picture of
the rust, and a copy of their title to make sure they own the
vehicle," Duncan said. "We know the defective 4Runners were
manufactured from 2003-2009 by Dana Holding Corporation." Dana
Holding Corporation was founded in 1904 and supplies parts for
conventional, hybrid, and electric vehicles.
"We know Dana Holding defectively manufactured Toyota 4Runners and
failed to put the anti-corrosion agent on the frame and
undercarriage of the vehicle," Duncan said. "…if you purchased a
4Runner that was manufactured between those dates it is likely
defective."
Even though Dana Holding manufactured defective parts, Toyota is
still to blame. "The complaint is against Toyota North America,"
Duncan said. "When you sell a product, even if it was manufactured
by someone else, you're signing off on that product being safe and
sound, and good for consumer use." Duncan continued, "Toyota had to
"OK" all of the decisions."
Toyota settled a lawsuit for $3.4 billion in 2016, for similar
frame rust issues with Toyota Tacomas from 2005-2010, Sequoias from
2005-2008, and Tundras from 2007-2008. Dana Holding supplied the
frames for those vehicles as well.
When will Toyota settle the class-action lawsuit?
Duncan surmises the case is still a few years away from completing.
"Large cases like this tend to take several years," Duncan said.
"The initial complaint was filed in late 2018, so it's still kind
of in its infancy."
ELG prides itself on treating each client with compassion. They
recognize their clients put their faith in a product that turned
out to be dangerous. "Our lead attorney was an industrial hygienist
before he was an attorney," Duncan said, "so he knows about
chemicals and rusting, and specifics on the products liability side
of this case."
Duncan says her and her associate's educations allow them to serve
their clients better. Their combined education background "comes
together to give us a modern approach to the law," Duncan said. "We
understand the law, but we also understand the science and the
medicine behind these specific kinds of cases, which is extremely
helpful." [GN]
TRANSWORLD SYSTEMS: Class Status-Related Bids Continued to Dec. 13
------------------------------------------------------------------
In the class action lawsuit captioned as ESTHER HOFFMAN; et al., v.
TRANSWORLD SYSTEMS INCORPORATION; et. al., Case No.
2:18-cv-01132-TSZ (W.D. Wash.), the Hon. Judge Thomas S. Zilly
entered an order that:
1. The date for discovery on class certification issues to be
completed is continued to October 30, 2021;
2. The deadline for Plaintiffs to file motions related to
class certification is continued to December 13, 2021, and
such motions are to be noted on February 18, 2022, with
the deadline for opposition to be January 31, 2022;
3. The consideration date for Defendant TSI's motion for
summary judgment is continued to February 18, 2022;
4. Plaintiffs will identify any expert witnesses and areas of
expert testimony that may be relied upon by them in
support of their motion for class certification by October
30, 2021; and
5. TSI's responses to Plaintiffs' Second Set of
Interrogatories and Requests for Production are due on
September 10, 2021.
Transworld Systems provides receivables collection and management
services.
A copy of the Court's order dated Sept. 2, 2021 is available from
PacerMonitor.com at https://bit.ly/3zfJq41 at no extra charge.[CC]
The Plaintiffs are represented by:
Sam Leonard, Esq.
LEONARD LAW
3614 California Ave. SW, No. 151
Seattle, WA 98116
Telephone: (206) 486-1176
Facsimile: (206) 458-6028
E-mail: sam@seattledebtdefense.com
- and -
Guy W. Beckett, Esq.
BERRY & BECKETT, PLLP
1708 Bellevue Avenue
Seattle, WA 98122
Telephone: (206) 441-5444
Facsimile: (206) 838-6346
E-mail: gbeckett@beckettlaw.com
- and -
Christina L. Henry, Esq.
HENRY & DeGRAAF, P.S.
119 -- 1st Ave. S., Ste. 500
Seattle, WA 98104
Telephone: (206) 330-0595
Facsimile: (206) 400-7609
E-mail: chenry@HDM-legal.com
- and -
Amanda Martin, Esq.
NORTHWEST CONSUMER LAW CENTER
936 North 34th Street, Suite 300
Seattle, WA 98103
Telephone: (206) 805-0989
Facsimile: (206) 805-1716
E-mail: Amanda@NWCLC.org
The Attorneys for National Collegiate Student Loan Trust
Defendants, are:
Gregory T. Casamento, Esq.
R. James DeRose, III, Esq.
J. Matthew Goodin, Esq.
LOCKE LORD LLP LOCKE LORD LLP
Brookfield Place
200 Vesey St. 20th Flr.
New York, NY 10281-2101
E-mail: gcasamento@lockelord.com
rderose@lockelord.com
jmgoodin@lockelord.com
- and -
Tim J. Filer, Esq.
FOSTER GARVEY PC
1111 Third Ave., Ste. 3000
Seattle, WA 98101
Telephone: (206) 447-4000
E-mail: tim.filer@foster.com
The Attorneys for Defendant Transworld Systems Inc., are:
Justin Homes, Esq.
Bryan C. Shartle, Esq.
SESSIONS, ISRAEL & SHARTLE
3850 N. Causeway Blvd., Ste. 200
Metairie, LA 70002-7227
Telephone: (504) 828-3700
E-mail: jhomes@sessions.legal
bshartle@sessions.legal
- and -
James K. Schultz, Esq.
1545 Hotel Circle S., Ste. 150
San Diego, CA 92108
Telephone: (619) 758-1891
E-mail: jschultz@sessions.legal
- and -
Ryan W. Vollans, Esq.
WILLIAMS KASTNER & GIBBS, PLLC
601 Union St., Ste. 4100
Seattle, WA 98101-2380
Telephone: (206) 628-6600
E-mail: rvollans@williamskasnter.com
The Attorneys for Defendants Patenaude & Felix, A.P.C., Matthew
Cheung, and Cheung marital community, are:
Marc Rosenberg, Esq.
LEE SMART, P.S., INC.
1800 One Convention Place
701 Pike Street
Seattle, WA 98101-3929
Telephone: (206) 624-7900
E-mail: mr@leesmart.com
TREK RETAIL: Green FCRA and Labor Suit Removed to N.D. California
-----------------------------------------------------------------
The case styled SCOTT GREEN, individually and on behalf of all
others similarly situated v. TREK RETAIL CORPORATION and DOES 1-50,
inclusive, Case No. CIV2102498, was removed from the Superior Court
of the State of California for the County of Marin to the U.S.
District Court for the Northern District of California on September
9, 2021.
The Clerk of Court for the Northern District of California assigned
Case No. 3:21-cv-07004 to the proceeding.
The case arises from the Defendant's alleged violations of the Fair
Credit Reporting Act, the Investigative Consumer Reporting Agencies
Act, the California Labor Code, and the California Business and
Professions Code including failure to make proper disclosure,
failure to provide proper summary of rights, failure to pay minimum
wages, failure to pay overtime owed, failure to provide lawful meal
periods, failure to authorize and permit rest periods, failure to
timely pay wages during employment, failure to timely pay wages
owed upon separation from employment, knowing and intentional
failure to comply with itemized wage statement provisions, and
unfair competition.
Trek Retail Corporation is a bicycle and cycling product
manufacturer and distributor, headquartered in Wisconsin. [BN]
The Defendant is represented by:
Jennifer N. Lutz, Esq., Esq.
Rio F. Schwarting, Esq.
PETTIT KOHN INGRASSIA LUTZ & DOLIN PC
11622 El Camino Real, Suite 300
San Diego, CA 92130
Telephone: (858) 755-8500
Facsimile: (858) 755-8504
E-mail: jlutz@pettitkohn.com
rschwarting@pettitkohn.com
UNITED STATES: Hagens Berman Discloses Antitrust Suit Settlement
----------------------------------------------------------------
If you purchased any Chicken product in the United States from
January 1, 2009, through December 31, 2020, you may be eligible to
receive money from class action Settlements totaling $181 million.
Para una notificacion in espanol, llame gratis al 1-877-888-5428 o
visite nuestro website www.overchargedforchicken.com.
Settlements have been reached in a class action antitrust lawsuit
filed on behalf of End-User Consumer Plaintiffs with Defendants:
Fieldale Farms Corporation ("Fieldale"); George's Inc. and George's
Farms, Inc. ("George's"); Mar-Jac Poultry, Inc., Mar-Jac Poultry
MS, LLC, Mar-Jac Poultry AL, LLC, Mar-Jac AL/MS, Inc., Mar-Jac
Poultry, LLC, and Mar-Jac Holdings, Inc. ("Mar Jac"); Peco Foods,
Inc. ("Peco"); Pilgrim's Pride Corporation ("Pilgrim's"); and Tyson
Foods, Inc., Tyson Chicken, Inc., Tyson Breeders, Inc., and Tyson
Poultry, Inc. ("Tyson") (collectively, "Settling Defendants"). This
Court-ordered notice may affect your rights. Please review and
follow the instructions carefully.
The United States District Court for the Northern District of
Illinois authorized this notice. Before any money is paid, the
Court will hold a hearing to decide whether to approve the
Settlements.
Who is Included?
For settlement purposes, members of the Settlement Class are
defined as all persons and entities who indirectly purchased fresh
or frozen raw chicken (defined as whole birds (with or without
giblets), whole cut-up birds purchased within a package, or "white
meat" parts including breasts and wings (or cuts containing a
combination of these), but excluding chicken that is marketed as
halal, kosher, free range, or organic) from Defendants or alleged
co-conspirators for personal consumption, where the person or
entity purchased in California, District of Columbia, Florida,
Hawaii, Illinois, Iowa, Kansas, Maine, Massachusetts, Michigan,
Minnesota, Missouri, Nebraska, Nevada, New Hampshire, New Mexico,
New York, North Carolina, Oregon, Rhode Island (after July 15,
2013), South Carolina, South Dakota, Tennessee, Utah, and Wisconsin
from January 1, 2009 (except for Rhode Island, which is from July
15, 2013), to July 31, 2019, and for Pilgrim's from January 1, 2009
to December 31, 2020.
In addition to the Settling Defendants, the other Defendants in
this lawsuit for purposes of this notice include: Agri Stats, Inc.
and Claxton Poultry Farms, Inc.; Foster Farms, LLC and Foster
Poultry Farms; Harrison Poultry, Inc. and House of Raeford Farms,
Inc.; JCG Foods of Alabama, LLC, JCG Foods of Georgia, LLC, Koch
Foods, Inc. and Koch Meats Co., Inc.; Mountaire Farms, Inc.,
Mountaire Farms, LLC, and Mountaire Farms of Delaware, Inc.; O.K.
Foods, Inc., O.K. Farms, Inc., and O.K. Industries, Inc.; Perdue
Farms, Inc. and Perdue Foods LLC; Sanderson Farms, Inc., Sanderson
Farms, Inc. (Foods Division), Sanderson Farms, Inc. (Processing
Division), and Sanderson Farms, Inc. (Production Division); Wayne
Farms, LLC; and Simmons Foods, Inc. and Simmons Prepared Foods,
Inc. (collectively, "Unsettled Defendants").
If you are not sure if you are included, you can get more
information, including a detailed notice, at
www.overchargedforchicken.com or by calling toll-free
1-877-888-5428.
What is this Lawsuit About?
This class action, In re Broiler Chicken Antitrust Litigation
(End-User Consumer Action), N.D. Ill. Case No. 1:16-cv-08637, is
pending in the United States District Court for the Northern
District of Illinois. U.S. District Court Judge Thomas M. Durkin
presides over this class action.
End-User Consumer Plaintiffs allege that Defendants and their
co-conspirators conspired to stabilize the price and supply of
chicken, as of January 1, 2009, in violation of federal and state
consumer and antitrust laws. The Settling Defendants have not
admitted any liability concerning, and continue to deny the legal
claims alleged in, this lawsuit, and would allege numerous defenses
to the Plaintiffs' claims if the case against them were to proceed.
Nevertheless, the Settling Defendants agreed to settle this action
to avoid the further expense, inconvenience, disruption, and burden
of this litigation and any other present or future litigation
arising out of the facts that gave rise to this litigation, to
avoid the risks inherent in uncertain complex litigation and trial,
and thereby to put to rest this controversy. The case is still
proceeding on behalf of the End-User Consumer Plaintiffs against
the Unsettled Defendants who may be subject to separate
settlements, judgments, or class certification orders.
What does the Settlement Provide?
Under the terms of the Settlement Agreements, the Settling
Defendants will pay a total of $181,000,000 to resolve all
Settlement Class claims against them and their affiliates. In
addition to this monetary benefit, the Settling Defendants have
also agreed to provide specified cooperation (as set forth in the
Settlement Agreements) in the End-User Consumer Plaintiffs'
continued prosecution of the litigation. Co-Lead Counsel may
request to delay distribution of Settlement funds if future
settlements with additional defendants are reached. Settlement
updates will be provided on the Settlement website at
www.overchargedforchicken.com or may be obtained by contacting the
Claims Administrator.
A portion of the Settlement Proceeds has been and will be used by
the Claims Administrator for notice and administration costs.
Additionally, Co-Lead Counsel will request that the Court award
attorneys' fees and permit the reimbursement of certain litigation
costs and expenses. The request will be filed at least fourteen
days before the deadline to object to the Settlements and posted on
the website www.overchargedforchicken.com. Co-Lead Counsel will
seek attorneys' fees of no more than 33.3% of the Settlement Fund
or $60,273,000, and the total amount of costs sought will be no
more than $8.75 million. Co-Lead Counsel will also request service
awards of up to $2,000 for each of the Class Representatives. All
Settlement funds that remain after payment of the Court-ordered
attorneys' fees, costs, and litigation expenses will be distributed
on a pro rata basis at the conclusion of the lawsuit or as ordered
by the Court.
What are your Rights and Options?
Submit a claim online at www.overchargedforchicken.com by December
31, 2022. This deadline may be changed by the Court, and any
extended claims deadline will be posted at
www.overchargedforchicken.com. If you submit a timely claim, you
will automatically be eligible to participate in the distribution
of any funds received in future settlements unless you opt out of
those future settlements. You do not need to take any action to
remain a member of the Settlement Class and be bound by the
Settlement Agreements. As a Settlement Class member, you may be
able to participate in (or exclude yourself from) any future
settlement or judgment obtained by End-User Consumer Plaintiffs
against the Unsettled Defendants in the case.
If you do not want to be legally bound by the Settlement
Agreements, you must exclude yourself by November 10, 2021, or you
will not be able to sue or continue to sue the Settling Defendants
or their affiliates for the Released Claims (as defined in the
Settlement Agreements). If you exclude yourself, you can't get
money from the Settlements. If you don't exclude yourself from the
Settlement Class, you may still object to the Settlement Agreements
by November 10, 2021. The detailed notice explains how to exclude
yourself or object. Details may also be found on the FAQs page of
the Settlement website. The Court will hold a hearing in this case
(In re: Broiler Chicken Antitrust Litigation (End-User Consumer
Action), Case No. 1:16-cv-08637 (N.D. Ill.)) on December 20, 2021,
at 9:00 a.m., to consider whether to approve the Settlement
Agreements. You may ask to speak at the hearing, but you do not
have to.
This notice is only a summary. You can find more details about the
Settlements at www.overchargedforchicken.com or by calling
toll-free 1-877-888-5428. Please do not contact the Court. [GN]
URBAN HEALTH: Tueros Suit Seeks Conditional Collective Status
-------------------------------------------------------------
In the class action lawsuit captioned as CHRISTINA TUEROS and
HERMEL LOPEZ, on behalf of themselves the Fair Labor Standards Act
(FLSA) Collective and the Class, v. URBAN HEALTH PLAN, INC., Case
No. 1:21-cv-04525-JMF (S.D.N.Y.), the Plaintiffs ask the Court to
enter an order granting their motion for conditional collective
certification.
Urban Health Plan Inc. provides health services in underserved
communities. The Company provides primary and specialty medical
care in urban areas.
A copy of the Plaintiff's motion to certify class dated Sept. 3,
2021 is available from PacerMonitor.com at https://bit.ly/3yZSny8
at no extra charge.[CC]
The Attorneys for Plaintiffs, FLSA Collective Plaintiffs and the
Class, are:
C.K. Lee, Esq.
Anne Seelig, Esq.
LEE LITIGATION GROUP, PLLC
148 West 24 th Street, Eighth Floor
New York, NY 10011
Telephone: (212) 465-1188
Facsimile: (212) 465-1181
VANS EXPRESS: Reitzi Sues Over Courier Drivers' Unpaid Wages
------------------------------------------------------------
PATRICIA REITZI, individually and on behalf of all persons
similarly situated, Plaintiff v. VANS EXPRESS, INC. and DHL EXPRESS
(USA) INC. d.b.a. DHL EXPRESS, Defendants, Case No.
1:21-cv-01514-CCC (M.D. Pa., Sept. 2, 2021) arises from the
Defendants' alleged violations of the Fair Labor Standards Act and
the Pennsylvania Minimum Wage Act for failing to comply with
applicable wage and hour laws and failing to pay Plaintiff and
other non-exempt employees for all time worked including overtime.
Ms. Reitzi has worked for the Defendants as a courier driver in
Harrisburg, Pennsylvania since approximately November 2019.
Vans Express, Inc. provides last-mile delivery services to
Defendant DHL.[BN]
The Plaintiff is represented by:
Camille Fundora Rodriguez, Esq.
Alexandra K. Piazza, Esq.
Reginald Streater, Esq.
BERGER MONTAGUE PC
1818 Market Street, Suite 3600
Philadelphia, PA 19103
Telephone: (215) 875-3000
Facsimile: (215) 875-4604
E-mail: crodriguez@bm.net
apiazza@bm.net
rstreater@bm.net
VIRGINIA: VEC Must Face Class Suit Over Unemployment Case Backlogs
------------------------------------------------------------------
Dan Casey, writing for the Roanoke Times, reports that earlier this
year, a group of poverty and consumer law attorneys filed a
class-action lawsuit in federal court against the Virginia
Employment Commission. It targeted a backlog of some 92,000
undecided unemployment filings by jobless workers impacted by the
COVID-19 pandemic.
In May, the plaintiffs and defendants reached a settlement. The VEC
promised to erase 95% of the backlog by Labor Day, which was Sept.
6.
And on Aug. 10, the agency asked U.S. District Judge Henry Hudson
to dismiss the lawsuit, arguing it had cleared the backlog of
"unadjudicated" cases and met settlement targets. On Aug. 25, Judge
Hudson refused the request and kept the lawsuit alive.
"The Court continues to frequently receive telephone calls from
individuals reporting difficulties processing their claims and
communicating with the VEC," he wrote in an order that kept the
case under the court's supervision.
Watching on the sidelines from hundreds of miles away was Teresa
Hatchel of Wytheville. She wasn't one of many desperate workers
directly calling the judge's chambers. But the 51-year-old former
bus driver could have been.
She's been waiting more than 15 months for $12,732 in benefits
she's due. Those date to May 2020.
There's no question the VEC owes that money. A VEC examiner heard
Hatchel's case July 13 by telephone -- nine months after she
appealed a ruling she was ineligible for benefits. The appeals
examiner found in her favor July 20, according to one (of many) VEC
documents Hatchel shared with me.
But as of Labor Day -- seven weeks after she won her appeal --
Hatchel still hasn't seen any money. She said a VEC official told
her that her account information in the agency's computer system
had been "hijacked."
The unknown hijacker had changed Hatchel's mailing address, phone
number and bank account information in the agency's system, the
official informed her.
On Wednesday the official promised to update Hatchel's information
in the VEC system with correct details supplied by Hatchel. He told
Hatchel the funds should be in her account by this past Friday.
They weren't.
On Friday, a different VEC official -- this time a woman -- told
Hatchel her personal information had not been updated in the
agency's computer system. And that's left Hatchel in the same
benefits limbo she's experienced for 15 months.
It's unclear whether her experience with the agency is typical. On
Thursday, I emailed the VEC's spokeswoman and requested some
general statistics (as opposed to personal worker information)
about hacked or hijacked VEC accounts. I didn't receive a reply.
But evidence is out there that the same thing is happening to other
workers, said Jeff Jones, a spokesman for the Legal Aid Justice
Center in Richmond, which spearheaded the class-action lawsuit.
Jones told me he knows that from monitoring social media regarding
unpaid unemployment benefits in Virginia. Although the evidence is
anecdotal, he said there's been an uptick "in complaints about
claimants account numbers or payment methods being changed."
"The complaints have slowed some in the most recent few days,"
Jones added.
Hatchel's case is not unlike that of another desperate unemployed
worker I wrote about in June. It was Kay Norred, fired from her
news director's job at WFXR in Roanoke last summer.
Bad bank account information in Norred's VEC account waylaid
$11,600 she was due for more than five months. That got
straightened out in minutes after I reached out to an official who
works for Megan Healy, Virginia's secretary of labor. (Norred, by
the way, has landed a news director's job out of state and begins
working later this month.)
Hatchel's path through the VEC's bureaucratic maze has been a bit
more complex.
Unlike Norred, Hatchel quit her bus driving job after her employer
declined to reduce her schedule. (She was paid for 6.5 hours each
day she worked, but those hours were spread between 5 a.m. and 5
p.m.) A reduction in hours was suggested by a licensed clinic
social worker who's been caring for Hatchel since 2019.
After Hatchel resigned, she filed for unemployment. The VEC
initially approved $95/week in state benefits, and later another
$600 per week in federal unemployment benefits. Each week, Hatchel
reported to the VEC declaring she was "able to work" and looking --
for a job that required fewer hours.
In all, Hatchel received $5,568 before the benefits were suddenly
terminated in May 2020.
The benefits ended because Hatchel's therapist erroneously sent the
agency a form declaring Hatchel was "totally unable to work" --
twice. That contradicted what Hatchel was telling the VEC in her
weekly calls. And the conflict resulted in Hatchel being declared
ineligible for benefits, according to VEC emails Hatchel shared
with me.
"My therapist is used to dealing with Social Security and other
agencies, but she's never dealt with the VEC before," Hatchel told
me.
After she was deemed ineligible, the VEC began sending Hatchel
letters demanding she repay the $5,568 she had received through May
2020.
Hatchel turned to the office of state Sen. Todd Pillion,
R-Washington. A caseworker suggested Hatchel file an appeal, which
she did -- on Oct. 27. That resulted in the telephonic hearing July
13, and the decision July 20.
In that, VEC Appeals Examiner N. Ozoh determined "the claimant has
met the eligibility requirements" for the benefits that agency
stopped paying Hatchel in May 2020.
So where Hatchel's $12,732? That's unclear. The most recent VEC
official Hatchel spoke to, Karen Harrison, told Hatchel she should
see the money in her account by today. That conversation was
Friday.
"I've been nice, I've been patient," said Hatchel, who in the
interim found a part-time office-receptionist job. "I've tried to
work within the system."
Pat Levy-Lavelle, the lead attorney in the lawsuit against the VEC,
told me that Hatchel isn't even among the 92,000 backlogged cases
the VEC says it has cleared up since May. That group is composed of
applicants who haven't been able to get an initial determination of
eligibility -- which Hatchel received soon after she filed.
Hatchel's case is counted in a different cohort, as a
"lower-authority appeal," Levy-Lavelle said. The U.S. Department of
Labor recommends those appeals should be heard in fewer than 30
days.
Right now the average wait for a "lower-authority appeal" hearing
in Virginia is 274.6 days, or just about nine months. According to
the federal labor department's website, Virginia ranks 51st out of
53 U.S. states and territories for that measure. Only two
jurisdictions are worse.
And that suggests there's a whole other category of frustrated
jobless workers, who've tried to work within the system, but still
haven't gotten their benefits. Like Teresa Hatchel.
They may be calling Judge Hudson's chambers soon. [GN]
WASTE CONNECTIONS: Faces Suit Over Increased Waste Service Fees
---------------------------------------------------------------
SUNSHINE CHILDREN'S LEARNING CENTER, LLC, on behalf of itself and
all others similarly situated, Plaintiff v. WASTE CONNECTIONS OF
FLORIDA, INC., Defendant, Case No. CACE-21-017107 (Fla. Cir. Ct.,
17th Jud. Cir., Broward Cty., September 9, 2021) is a class action
against the Defendant for direct breach of contract, breach of
covenant of good faith and fair dealings, declaratory relief,
injunctive relief, unjust enrichment, and violation of the Florida
Deceptive and Unfair Trade Practices Act.
According to the complaint, the Defendant breached its own form
contract by increasing specified fees without proper foundation and
failing to provide customers with proper notice of fee increases.
The Defendant used its self-granted discretionary powers under the
contract to raise rates and add fees in a manner that violated the
parties' understanding and intent as evidenced by the language of
the form contract, says the suit.
Sunshine Children's Learning Center is a provider of preschool and
after-school care for children, with its principal office located
at 7113 Mintwood Court, Tampa, Florida.
Waste Connections of Florida, Inc. is a waste hauling and
management service provider based in Florida. [BN]
The Plaintiff is represented by:
Edward H. Zebersky, Esq.
Mark S. Fistos, Esq.
ZEBERSKY PAYNE SHAW LEWENZ, LLP
110 Southeast 6th Street, Suite 2900
Fort Lauderdale, FL 33301
Telephone: (954) 989-6333
Facsimile: (954) 989-7781
E-mail: ezebersky@zpllp.com
mfistos@zpllp.com
WASTE MANAGEMENT: Burger Civil Rights Suit Goes to W.D. Washington
------------------------------------------------------------------
The case styled TIFFANY BURGER, individually and on behalf of all
others similarly situated v. WASTE MANAGEMENT of WASHINGTON, INC.,
Case No. 21-00002-07005-3, was removed from the Superior Court of
the State of Washington in and for the County of Pierce to the U.S.
District Court for the Western District of Washington on September
9, 2021.
The Clerk of Court for the Western District of Washington assigned
Case No. 3:21-cv-05661 to the proceeding.
The case arises from the Defendant's alleged discrimination under
Title VII of the Civil Rights Act of 1964 and intentional and
negligent infliction of emotional distress.
Waste Management of Washington, Inc. is a company that provides
collection and disposal of refuse systems, headquartered in Texas.
[BN]
The Defendant is represented by:
Ryan P. Hammond, Esq.
Birgitte Gingold, Esq.
LITTLER MENDELSON, P.C.
One Union Square
600 University Street, Suite 3200
Seattle, WA 98101-3122
Telephone: (206) 623-3300
Facsimile: (206) 447-6965
E-mail: rhammond@littler.com
bgingold@littler.com
WESTERN AUSTRALIA: Banksia Hill Youth Detainees' Class Suit Pending
-------------------------------------------------------------------
Paul Gregoire, writing for Sydney Criminal Lawyers, reports that
despite having the second highest youth incarceration rate in the
country, Western Australia only has one child correctional
facility, which is the Banksia Hill Juvenile Detention Centre
located in the south Perth suburb of Canning Vale.
So, some of the state's most vulnerable youths have to be flown in
to the capital -- far from their families and supports -- to be
held there. And often these children are detained on remand as they
await court dates, only to then be sent home without receiving a
prison sentence or a conviction.
WA Department of Justice figures outline that for the September
quarter last year, 83 youths were being held in Banksia Hill, with
57 -- or 68 percent -- being First Nations children. And 60 percent
of the locked-up kids were on remand, meaning they either hadn't
been convicted or sentenced.
Banksia Hill is notorious internationally for its ill treatment of
youths, especially due to its use of solitary confinement. And the
WA Office of the Inspector of Custodial Services (OICS) notes that
it's had to give the centre extra attention over the last decade
due to its "elevated risk level".
Indeed, the traumatic treatment Banksia Hill detainees are
subjected to sets them up for a life of disadvantage, and this is
why a large number of former inmates are launching the Banksia Hill
Class Action, which is seeking compensation and an end to the
injustice.
"The forgotten children of Banksia are our most impoverished
children -- our most traumatised. The majority didn't have a chance
at a good life from the beginning," said Gerry Georgatos,
coordinator of the National Suicide Prevention and Trauma Recovery
Project (NSPTRP).
"One hundred percent of them have experienced major traumas --
unaddressed traumas," he continued. "A significant proportion must
be recognised as having no safety nets. In fact, many have no
parents. Many come in from transience and homelessness. And many
return to such loneliness."
Georgatos is one of the chief organisers of the Banksia Hill Class
Action. He and NSPTRP director Megan Krakouer recently travelled to
Geraldton and Bunbury to locate former Banksia Hill detainees,
who'd be interested in getting on board with the civil case.
So far, 300 former detainees have signed on. And according to
Georgatos, these numbers should swell to 500 in the coming weeks,
and by year's end, the number of plaintiffs will rise to about
1,000 former detainees, which will make it one of the largest class
actions of its kind.
"By no stretch of any imagination is Banksia a safety net. It's a
hovel of incarceration," the justice advocate told Sydney Criminal
Lawyers. "The Banksia experience diminishes children -- youth -- to
the worst of themselves, fast-tracking disaster -- and some pay
with their lives.
Torturing the disadvantaged
Back in January 2018, Amnesty International launched a campaign
calling for the immediate closure of the Banksia Hill's Intensive
Support Unit (ISU), as it asserted a number of youth detainees had
been held in solitary confinement for at least two weeks.
Rule 32 of the UN Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment states that solitary
confinement "might constitute torture or inhuman treatment" and it
"should be prohibited as a punishment for juveniles".
Further charges laid against the treatment of youths in the ISU,
included being deprived of contact with their families and
education, the excessive use of force, a disproportionate use of
restraints and denial of adequate medical treatment.
A follow up OICS report found that in the cases of two youths that
were specifically raised by Amnesty, they were "probably . . . held
in conditions that amounted to ‘solitary confinement' under
international law as they did not have at least two hours out of
cell per day".
The most recent OICS inspection of Banksia Hill revealed that in
September last year, the facility was experiencing a period of
stability after years of disruption. However, by the time its
report was released in June this year, signs were emerging that
conditions at the centre were deteriorating.
Much-needed reform
"Western Australia and the Northern Territory are the nation's
backwaters -- racist and classist -- and these jurisdictions are
polluted with draconian justice laws," Georgatos said, adding that
the government spends more on criminalising kids than the holistic
alternatives would cost.
The social justice advocate further pointed to the need for law
reform in WA around bail laws for children, which would permit
those who've been charged with an offence to remain with their
families whilst awaiting their time in court, rather than being
sent to Banksia Hill on remand.
The 2018 OICS report in response to Amnesty, found that the laws
governing the confinement of children contained within the Young
Offenders Act 1994 (WA) and its accompanying regulations, are
"obsolete, outdated, and inconsistent" with international
standards.
And as Western Australia sets the age of criminal responsibility at
10 years old -- as does the rest of the nation -- children as young
as this who've been charged with a crime continue to be ripped from
their families and flown across the state to be locked up at
Banksia Hill regardless of guilt.
All of these unjust laws and practices disproportionately affect
First Nations youth. As noted above, around 68 percent of 10 to 17
year olds locked up in WA are Aboriginal kids, despite them only
accounting for 6 percent of the overall state populace of that age
bracket.
Forging change
The state of WA ought to be on notice that the Banksia Hill Class
Action is pending, as leading it is Levitt Robinson Solicitors
senior partner Stewart Levitt, who's the lawyer that ran the Palm
Island Class Action, which saw Queensland pay $30 million in
compensation and deliver a formal apology.
But the action being taken against WA's only youth gaol isn't just
about compensating those who've been subjected to mistreatment
within its secured walls, as it's also about bringing real reforms
so that children in the future are no longer subject to such
scarring treatment at the hands of the state.
According to Georgatos, because of the looming class action and the
media attention it's already gathering, Banksia Hill Juvenile
Detention Centre is currently implementing small reforms, so a
success in the courts could be seismic.
"If we win in the courts, precedents will be set for changes and
reforms not just in Western Australia, but which can be tapped into
by every state and territory," Georgatos concluded.
"Imagine, backwater Western Australia all of a sudden hails forward
as the nation's social justice reformer." [GN]
XPRESSPA GROUP: Finalization of Collins Settlement Ongoing
----------------------------------------------------------
XpresSpa Group, Inc. said in its Form 10-Q Report filed with the
Securities and Exchange Commission on August 16, 2021, for the
quarterly period ended June 30, 2021, that the parties in Kyle
Collins v. Spa Products Import & Distribution Co., LLC et al., are
currently in the process of preparing/finalizing settlement
papers.
This is a combined class action and California Private Attorney's
General Act (PAGA) action.
Plaintiff seeks to recover wages, penalties and PAGA penalties for
claims for (1) failure to provide meal periods, (2) failure to
provide rest breaks, (3) failure to pay overtime, (4) inaccurate
wage statements, (5) waiting time penalties, and (6) PAGA penalties
of $0.1 per employee per pay period per violation.
There are approximately 240 current and former employees in the
litigation class.
The parties agreed to mediation on May 26, 2020, however, due to
COVID-19 the parties subsequently stayed all proceedings.
The mediation session occurred on March 18, 2021, and the parties
reached a settlement in principle.
The parties are currently in the process of preparing/finalizing
settlement papers for filing with the court.
XpresSpa Group, Inc., a health and wellness services company,
provides spa services to travelers at airports. The Company was
formerly known as FORM Holdings Corp. and changed its name to
XpresSpa Group, Inc. in January 2018. XpresSpa Group, Inc. is
headquartered in New York, New York.
ZAYO GROUP: Del. Court Narrows Teamsters' Claims Over Merger Deal
-----------------------------------------------------------------
In the case, TEAMSTERS LOCAL 237 ADDITIONAL SECURITY BENEFIT FUND,
TEAMSTERS LOCAL 237 SUPPLEMENTAL FUND FOR HOUSING AUTHORITY
EMPLOYEES, and ALAN WATERHOUSE, Plaintiffs v. DAN CARUSO,
Defendant, C.A. No. 2020-0620-PAF (Del. Ch.), the Court of Chancery
of Delaware granted in part and denied in part the Defendant's
motion to dismiss.
The Plaintiffs are former stockholders of Zayo. Zayo is a global
provider of communications infrastructure, with operations in the
United States, Canada, and Europe. It owns and operates extensive
fiber networks, data centers, and small cell cites used for 5G
networks. Defendant Dan Caruso served as the Company's CEO and
Chairman of the Board.
On March 9, 2020, a consortium of equity co-investors acquired the
Company under an agreement and plan of merger dated May 8, 2019.
The total transaction value was approximately $14.3 billion. In the
Merger, each share of Zayo common stock was converted into the
right to receive $35 in cash. During the sale process, Defendant
Dan Caruso served as the Company's CEO and Chairman of the Board.
The Plaintiffs contend that Caruso, under threat of removal by
activist stockholders, breached his fiduciary duty by steering the
sale process toward the acquiror so that he could capture the
future upside of the business through a rollover of his stock and
remaining as CEO post-merger. They further allege that, despite
being aware of Caruso's conflicts, the Zayo board did not
sufficiently oversee and manage Caruso's conduct to maximize
stockholder value. Plaintiffs also assert that Caruso is personally
liable for materially misleading disclosures and omissions in the
proxy statement disseminated to Zayo stockholders recommending that
they approve the Merger.
Caruso has moved to dismiss, contending that the Complaint lacks
sufficient allegations to state a claim. He contends that the
involvement of an informed and engaged board of directors defeats
any claim for liability arising from the Merger. He maintains that
the Zayo board of directors was independent, well aware of Caruso's
potential conflicts, and managed them in accordance with their
fiduciary duties. Defendant further argues that the Merger was
ratified under Corwin by a fully-informed, uncoerced stockholder
vote.
Analysis
Mr. Caruso argues that the motion to dismiss must be granted under
Corwin v. KKR Financial Holdings. LLC, 125 A.3d 304, 312-14 (Del.
2015), because the Merger was approved by a fully informed,
uncoerced vote of disinterested stockholders.
The Plaintiffs argue that the Merger is subject to entire fairness
review. According to them, even though Caruso does not own over 50%
of the outstanding shares of Zayo stock and this was not a
controlling stockholder transaction, Caruso harbored a conflict of
interest because he sought to enrich himself personally through the
Merger. The Plaintiffs contend that a majority of Zayo's board of
directors lacked independence from Caruso, thus causing the Merger
to be subject to entire fairness review. In the alternative, they
argue that Caruso is liable for breach of his fiduciary duty
because the Board did not satisfy enhanced scrutiny under Revlon.
As a final matter, the Plaintiffs argue that Caruso breached his
fiduciary duties because the Proxy issued in support of the Merger
was materially misleading.
The Court opines that the allegations of the Complaint do not
support a reasonable inference that the Merger is subject to entire
fairness review or that Caruso breached his fiduciary duties by
corrupting the sale process. It says, the Plaintiffs have alleged
facts creating a pleadings-stage inference that Caruso was subject
to a conflict of interest because he knew from the outset that the
ultimately successful bidder required that Caruso remain as CEO
post-closing.
Though Mr. Caruso was subject to a conflict of interest, the Court
holds that that is not fatal to his motion to dismiss. The
Complaint lacks allegations supporting a reasonable inference that
Zayo's Board did not act in a manner reasonably designed to manage
the conflict or maximize value. It lacks well-pleaded allegations
supporting a reasonable inference that Caruso disabled the Board by
failing to inform it about critical events or by acting
unilaterally without the Board's knowledge.
Moreover, the Court opines that the Plaintiffs have identified a
discussion between Caruso and the acquiror's representative that
was not disclosed in the Proxy, even though the Proxy discloses
other, similar communications between them regarding the Merger
price. It is reasonably conceivable that this omission was material
in light of the related disclosures. Accordingly, the Court
concludes that the Complaint pleads facts from which it is
reasonably conceivable that Caruso could be determined to be liable
for a breach of the duty of care in his capacity as an officer for
his involvement in the preparation of the Proxy.
Conclusion
The Court concludes that the Plaintiffs have stated a claim that
the Proxy contained a material omission regarding the February 11
discussion between Ganzi and Caruso. Caruso therefore has not
established that the stockholder vote approving the Merger was
fully informed. Accordingly, the Complaint is not subject to
dismissal under the business judgment rule as a result of the
stockholder vote approving the Merger.
For these reasons, the Court granted in part and denied in part the
Defendant's motion to dismiss.
A full-text copy of the Court's Aug. 31, 2021 Memorandum Opinion is
available at https://tinyurl.com/ezv6u2j8 from Leagle.com.
Joel Friedlander -- jfriedlander@friedlandergorris.com Jeffrey M.
Gorris -- -- jgorris@friedlandergorris.com -- Christopher M. Foulds
-- cfoulds@friedlandergorris.com --, FRIEDLANDER & GORRIS, P.A., in
Wilmington, Delaware; Gregory V. Varallo, BERNSTEIN LITOWITZ BERGER
& GROSSMAN LLP, in Wilmington, Delaware; Mark Lebovitch, Jeroen van
Kwawegen, Andrew E. Blumberg, BERNSTEIN LITOWITZ BERGER & GROSSMAN
LLP, New York, New York; Randall J. Baron, David Wissbroecker,
ROBBINS GELLER RUDMAN & DOWD LLP, San Diego, California;
Christopher H. Lyons, ROBBINS GELLER RUDMAN & DOWD LLP, in
Nashville, Tennessee, Attorneys for Plaintiffs.
Edward B. Micheletti -- edward.micheletti@skadden.com -- Cliff C.
Gardner -- cliff.gardner@skadden.com -- Veronica B. Bartholomew --
veronica.bartholomew@skadden.com -- Gregory P. Ranzini --
gregory.ranzini@skadden.com -- SKADDEN, ARPS, SLATE, MEAGHER & FLOM
LLP, in Wilmington, Delaware, Attorneys for Defendant.
*********
S U B S C R I P T I O N I N F O R M A T I O N
Class Action Reporter is a daily newsletter, co-published by
Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania,
USA, and Beard Group, Inc., Washington, D.C., USA. Rousel Elaine T.
Fernandez, Joy A. Agravante, Psyche A. Castillon, Julie Anne L.
Toledo, Christopher G. Patalinghug, and Peter A. Chapman, Editors.
Copyright 2021. All rights reserved. ISSN 1525-2272.
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