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C L A S S A C T I O N R E P O R T E R
Friday, September 17, 2021, Vol. 23, No. 181
Headlines
ACT INC: 1st Cir. Vacates Denial of Class Cert. in Bais Yaakov Suit
AIR METHODS: Court Partly Grants Scarlett's Bid to Amend Judgment
ALEJANDRO MAYORKAS: Castellar Bid for Class Status Partly OK'd
ALLERGAN PLC: DeKalb Suit Gets Class Status in Securities Case
ALLEY POND: Arevalo et al. Sue Over Failure to Pay Overtime Wages
ALLSTATE INSURANCE: Class Cert. Briefing Sched. in Hilario Extended
ALLSTATE INSURANCE: Kombol Seeks to Certify Class Action
ALLSTATE INSURANCE: Loses Bid to Dismiss Garner's TCPA Claim
AMAZON.COM INC: Withholds Merchants' Funds, Shenzen Suit Claims
AMERICAN NATIONAL: California Court Narrows Claims in Yearby Suit
AMERICAN SECURITY: Court Dismisses Forrester Class Suit
AMERICANO GONZO: Faces Sachs Suit Over Illegal Tip Pooling
ANHEUSER-BUSCH INBEV: Read Sues Over Seltzer's Agave Content Label
APPLE INC: Court Extends Case Schedule in Tabak Class Suit
APPLE INC: Judge Readmits Part of Amended Siri Class Action Lawsuit
ASHFORD INC: Discovery Ongoing in Class Action Against Subsidiary
ATHIRA PHARMA: Wang Consolidated Putative Class Suit Underway
ATI PHYSICAL: Glancy Prongay Reminds of October 15 Deadline
ATTILIO CONSTRUCTION: Underpays Laborer, Echevarria Suit Claims
BAE SYSTEMS: Court Vacates Prelim. Hearing on Cordova's Settlement
BANK OF AMERICA: Hong Appeals Case Dismissal Order to 9th Cir.
BASARI MARKET: Fails to Pay Overtime Wages, Gramajo Suit Claims
BLUE DIAMOND: November 23 Settlement Claims Filing Deadline Set
BOILING CRAB: McDougall Suit Seeks to Certify Rule 23 Class
CALIFORNIA: Cut-off of Discovery in Ashker v. Cate Set for Dec. 15
CANOO INC: Putative Class Suits Underway in California
CAREATC INC: Class Action Lawsuit Over Alleged Data Breach Pending
CASSAVA SCIENCES: Schall Law Firm Reminds of October 26 Deadline
CHATHAM-KENT, ON: Sharon Strosberg Retained to Commence Class Suit
CHICAGO, IL: Faces Class Action Over "Stop and Frisk" Practices
CHICO'S FAS: Hernandez Labor Suit Removed to C.D. California
COSTCO WHOLESALE: Case Scheduling Deadlines in Corker Suit Extended
CUSHMAN & WAKEFIELD: Settlement in Dixon Suit Wins Initial Approval
DANIMER SCIENTIFIC: Bid to Consolidate New York Class Suits Pending
DANSKE BANK: Troutman Pepper Attorneys Discuss Court Ruling
DEARBORN MOTORS: Dismissal of Williams' Class Claims Affirmed
DELAWARE NORTH: Morand-Doxzon Bid for Class Status Partly OK'd
DESIGNER BRANDS: DSW Gets Partial Summary Judgment vs LaGuardia
DOROT CONTROL: Barnea Jaffa Attorney Discusses Court Ruling
EQUILON ENTERPRISES: Dimercurio's Class Cert. Bid Granted in Part
EVMO INC: Rung and Vanbecelaere Suits Remains Stayed
EVMO INC: Trial in Consolidated Class Suit Set for Oct. 5
EXELA TECHNOLOGIES: Continues to Defend Shen Putative Class Suit
FIBROGEN INC: Four Securities Fraud Actions Consolidated in Xu Suit
FOXY LADY: Settles Dancers' Wage Class Action for $1.5 Million
GENERAL MOTORS: Faces Class Action Over Defective Airbags
GOOGLE INC: Northern District of Illinois Stays Rivera BIPA Suit
GOYA FOODS: Mejias' Bid to Move Suit to New Jersey Super. Ct. Nixed
HAWAII: District Court Trims Claims in Abing v. Evers Class Suit
HOME DEPOT: Appiah Suit Seeks to Certify Two Classes
HYRECAR INC: Robbins Geller Reminds of October 26 Deadline
HYRECAR INC: Rosen Law Firm Reminds of October 26 Deadline
INSTRUCTURE HOLDINGS: Bid to Junk Oklahoma Suit Pending
JOHNSON & JOHNSON: Faces Neutrogena Sunscreen Recall Class Action
JOHNSON & JOHNSON: Reinkraut Sues Over Unsafe Sunscreen Products
JUST A SLICE: Wins Initial Settlement Approval in McLeod Class Suit
KATAPULT HOLDINGS: Rosen Law Firm Reminds of October 26 Deadline
KATAPULT HOLDINGS: Schall Law Firm Reminds of Oct. 26 Deadline
KIM BIMESTEFER: Suit Seeks to Certify Class Action
LIBERTY PERSONAL: Bid for Class Certification Due March 14, 2022
LIGHTHOUSE INSURANCE: Time Extension for Class Cert Response Sought
LIGHTNING EMOTORS: Delman Suit vs. GigCapital3 Underway
LOANDEPOT INC: Gainey McKenna Reminds of November 8 Deadline
LOANDEPOT INC: Rosen Law Firm Reminds of November 8 Deadline
MADISON REED: N.D. California Tosses Brown Suit With Leave to Amend
MARICOPA, AZ: Luckey Suit Seeks to Certify Two Classes
MATRAT LLC: Owes $660K to Barbecho Suit's Class Members, Court Says
MCCORMICK TRUCKING: Keator Suit Seeks to Certify FLSA Collective
MDL 1869: BNSF Appeals Order in Antitrust Case to D.C. Cir.
MDL 2555: Class Certification Order in Coca Cola Sales Suit Flipped
MICHIGAN: Court Denies Bid for Attorney Fees in Doe v. Curran
MOLEKULE INC: Faces Another Suit Over Mislabeled Air Purifiers
MORTON SALT: Faces Class Action Over Himalayan Pink Salt Products
MPC HOLDINGS: Court Conditionally Certifies Class of Inspectors
NATIONAL FOOTBALL: Dent Seeks to Certify Class of Football Players
NEW YORK: Floyd Appeals Order in NYPD Stop & Frisk Suit to 2nd Cir.
NEW YORK: Landlords' Class Action Challenges Eviction Moratorium
NEW YORK: Ligon Appeals Order in NYPD Stop & Frisk Suit to 2nd Cir.
NMC HEALTH: November 30 Settlement Fairness Hearing Set
NORTONLIFELOCK INC: Esa's State Law Claims Tossed W/o Prejudice
OPPENHEIMER & CO: Investors File Class Action Over Ponzi Scheme
OSMOTICA PHARMA: Hearing to Review Settlement Set for Nov. 9
PAYPAL HOLDINGS: Schall Law Firm Reminds of October 19 Deadline
PEDIATRIC HOME: Berridge Loses Bid to Certify Class
PEOPLE'S BANK: Claims in Yankelov Suit Referred to Magistrate Judge
PHILADELPHIA, PA: Court Grants Bids to Dismiss in Shelton Suit
PORCH GROUP: Tentative Deal Reached in Suit vs. HireAHelper
PORTFOLIO RECOVERY: New Jersey Court Refuses to Remand North Suit
PROCTER & GAMBLE: Court Dismisses McGinity Suit With Leave to Amend
QUEENSLAND: Wins Appeal in 2011 Floods Class Action Lawsuit
RAPID FINANCIAL: Loses Bid to Arbitrate Claims in Watkins Suit
REKOR SYSTEMS: Continues to Defend Miller Putative Class Suit
RENT RECOVERY: Transmits Consumers' Data to Third Party, Olave Says
RIVER PALMS: Nursing Home Residents' Families File Class Action
ROBERT D. GOLDFARB: Bid for Settlement Approval in Ferguson Denied
ROBINHOOD MARKETS: Text Messages Related Suits Underway
ROMEO POWER: California Wage & Hour Class Suit Still Stayed
ROMEO POWER: Consolidated Nichols-Toner Suit Underway
SCWORX CORP: Mediation in Suit Over COVID-19 Rapid Test Kit Ongoing
SMALLCAKES STEELE: Hathaway Wins Collective Action Certification
SOULBOUND STUDIOS: "Chronicles of Elyria" Class Action Can Proceed
SPARTAN CONCRETE: Loctar Seeks to Certify Rule 23 Class
SPECTRUM PHARMA: Robbins Geller Reminds of November 1 Deadline
STATE FARM: Judge Denies Policyholders' Class Certification Bid
STEAK N SHAKE: Ohio Court Denies Bid to Transfer Harding Suit
SUGAR CREEK: Cordell Seeks to Certify FLSA Collective Action
SUNCOKE ENERGY: Third Circuit Affirms Dismissal of Cohn Class Suit
SYNEOS HEALTH: E.D. North Carolina Tosses Vaitkuviene Fraud Suit
SYSCO SACRAMENTO: Fite Sues Over Wage-and-Hour Violations in Cal.
T-MOBILE USA: Partial Bids to Dismiss in Craigville Suit Granted
T-MOBILE USA: Wellman Sues Over Failure to Secure Customers' Info
TINDER INC: Kim Appeals Ruling in Civil Rights Suit
TRAINING LICENSING: Kuhnast Suit Alleges Unauthorized Sales Calls
UNITED STATES: Bid to Reconsider in Castellar v. Mayorkas Denied
UNITED STATES: Court Dismisses Several Defendants From Hill Suit
UNITED STATES: District of Oregon Denies Hunter's Bids for TROs
UNITED STATES: Mooney Can Intervene in Harris-Reese Class Suit
URS MIDWEST: Stipulation to Extend Class Cert Deadlines OK'd
VESTAR INC: Faces United Suit Over Unpaid Construction Materials
VIEW INC: Wolf Haldenstein Reminds of October 18 Deadline
WALGREENS BOOTS: California Court Tosses Smith Discrimination Suit
WALMART INC: Sued for Selling Discontinued J&J Brand Baby Powder
WASHINGTON HEALTH: Lynch Seeks Certification of Class Action
WESTSIDE INVESTMENTS: Pastore Sues Over Unsolicited Messages Ads
WSGP GAS PRODUCING: Hoog Suit Transferred to E.D. Oklahoma
YALLA GROUP: Frank R. Cruz Reminds of October 12 Deadline
ZYMERGEN INC: Shankar Putative Securities Class Suit Underway
[*] Osler Hoskin Attorneys Discuss Class Action Waivers
Asbestos Litigation
ASBESTOS UPDATE: GMS Inc.'s Subsidiaries Faces Exposure Claims
*********
ACT INC: 1st Cir. Vacates Denial of Class Cert. in Bais Yaakov Suit
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The United States Court of Appeals for the First Circuit vacates
the denial of class certification in the lawsuit styled BAIS YAAKOV
OF SPRING VALLEY, on behalf of itself and all others similarly
situated, Plaintiff, Appellant v. ACT, INC., Defendant, Appellee,
Case No. 20-1537 (1st Cir.).
ACT is a non-profit entity that develops and administers the ACT
college admissions test. Bais Yaakov of Spring Valley is a small
private high school to which ACT sent three one-page faxes in 2012.
Bais Yaakov has since pursued ACT with a zeal that would impress
even Hugo's Inspector Javert. On behalf of itself and a class of
similarly situated recipients of faxes from ACT, Bais Yaakov
alleges that the faxes were unsolicited advertisements sent in
violation of the Telephone Consumer Protection Act of 1991 (TCPA),
47 U.S.C. Section 227(b)(1)(C). Bais Yaakov seeks injunctive relief
and statutory damages in an amount that ACT estimates to exceed
$400 million.
After almost eight years of litigation--including an interlocutory
appeal to this Court, see Bais Yaakov of Spring Valley v. ACT,
Inc., 798 F.3d 46, 46 (1st Cir. 2015)--the district court entered
judgment against Bais Yaakov. It found that class certification was
unwarranted and that Bais Yaakov's individual claim was rendered
moot by ACT's offer to pay the full amount of that claim ($46,500)
and its promise not to send further faxes to Bais Yaakov.
Background
In 2005, Bais Yaakov filled out a High School Code Request Form, on
which it provided its fax number. Students use the High School Code
number to have their ACT test scores reported to their high school.
On the form, Bais Yaakov checked a box indicating that it wanted to
administer certain standardized tests, that it wanted to receive
its students' test scores, and that it wanted to receive SAT or ACT
publications.
Seven years later, ACT sent three one-page faxes to Bais Yaakov
over the course of three months. The first fax was a one-page flyer
stating in large bold letters, "Don't forget to register for the
ACT!" The second fax was identical to the first but with a
different test date and corresponding registration deadlines. The
third fax contained what appears to be an image of a crowd cheering
at a baseball game, with the words "Give Your Students the
Home-Field Advantage" superimposed on one side and "ACT" on the
other.
Bais Yaakov alleges that these three faxes are among over 28,000
unlawfully faxed advertisements ACT sent to over 7,000 schools
across the country between 2008 and 2012.
Bais Yaakov proposed two alternative classes, labeled Class A and
Class B. With Class A, Bais Yaakov sought to include only
recipients of "unsolicited" fax "advertisements" from ACT
containing no opt-out notice. With Class B, Bais Yaakov sought to
take advantage of the Opt-Out Regulation by broadening the class to
include recipients of any (even solicited) fax advertisements from
ACT that did not contain an opt-out notice as required by the
regulation.
With the parties' consent, the district court considered first
whether the Opt-Out Regulation was valid. In finding the regulation
to be invalid, the district court deemed binding a decision to that
effect by the Court of Appeals for the D.C. Circuit (see Bais
Yaakov of Spring Valley v. ACT, Inc., 328 F.R.D. 6, 10 (D. Mass.
2018) (citing Bais Yaakov, 852 F.3d at 1083)).
Having eliminated the Opt-Out Regulation as a tool for establishing
that every fax sent by ACT necessarily violated the TCPA because
ACT never included opt-out notices, the district court turned its
attention to the two issues raised by the TCPA's exceptions from
its prohibition on advertisements: Did the fax contain an
advertisement? And, if so, was it unsolicited (i.e., sent without
prior express invitation or permission)? As to these two issues,
the district court took the standard Rule 23 approach: It did not
try to resolve the issues; rather, it properly tried to decide
whether Bais Yaakov had shown that resolution of the issues could
be accomplished on a common, class-wide basis, citing Amgen Inc. v.
Conn. Ret. Plans & Tr. Funds, 568 U.S. 455, 459-60 (2013).
Looking first at the request to certify Class B, the district court
found that the invalidity of the Opt-Out Regulation permitted a
defense based on prior express permission. Assaying the record, it
then concluded that the need to adjudicate such a defense would
require an examination of the circumstances of each class member
and its communications with ACT to determine whether that class
member gave the requisite permission. And the need to engage in
such an individual inquiry meant that common issues would not
predominate as required in order to certify a class under Rule
23(b)(3), see In re Asacol Antitrust Litig., 907 F.3d 42, 51-52
(1st Cir. 2018).
With proposed Class A, Bais Yaakov sought to eliminate this
diversity among class members by limiting that class to recipients
of unsolicited faxes. The district court rejected this attempt,
finding that such a class would constitute a "fail-safe class,"
i.e., a class that would bind class members only if they won. The
district court then reasoned that if the class were redefined to
include recipients of any faxes from ACT, it would suffer from the
same defects as did Class B.
Having denied class certification, the district court turned to
Bais Yaakov's individual claim, on which the parties had
cross-moved for summary judgment, see Bais Yaakov of Spring Valley
v. ACT, Inc., 438 F.Supp.3d 106, 108 (D. Mass. 2020). The district
court found that genuine disputes of material fact--namely, whether
the three faxes identified by Bais Yaakov qualified as
advertisements and whether Bais Yaakov gave the requisite
permission--precluded granting summary judgment for either party.
Later, ACT moved to dismiss Bais Yaakov's claim as moot. According
to the district court, by that point ACT had unconditionally
tendered to Bais Yaakov all the statutory damages that it sought on
an individual basis, Bais Yaakov of Spring Valley v. ACT, Inc., 461
F.Supp.3d 3, 5 (D. Mass. 2020). As to injunctive relief, ACT had
not sent Bais Yaakov a fax since 2012, and it had agreed not to
send any faxes in the future in violation of the TCPA. The district
court, therefore, found the case moot and dismissed it.
Bais Yaakov now appeals three rulings of the district court: (i)
the holding that the Opt-Out Regulation is invalid, (ii) the denial
of class certification, and (iii) the dismissal of Bais Yaakov's
individual claim as moot. Bais Yaakov also asks the Court of
Appeals to review the district court's denial of its motion for
summary judgment, but it is settled beyond peradventure that the
Court of Appeals lack jurisdiction to hear appeals from the routine
denial of summary judgment motions on the merits.
I. Validity of the Opt-Out Regulation
The Court of Appeals considers first the validity of the Opt-Out
Regulation. The parties argue at length over whether the decision
of the D.C. Circuit finding the regulation invalid binds this
Court. Circuit Judge William J. Kayatta, Jr. notes that the Panel
sidesteps that issue because it finds the D.C. Circuit's
decision--whether binding or not--correct, largely for the reasons
cogently set forth in that opinion.
When a court reviews an agency's construction of a statute the
agency administers, it conducts the familiar Chevron two-step
analysis: First, always, is the question whether Congress has
directly spoken to the precise question at issue. If the intent of
Congress is clear, that is the end of the matter; for the court, as
well as the agency, must give effect to the unambiguously expressed
intent of Congress. If the statute is silent or ambiguous with
respect to the specific issue, the question for the court is
whether the agency's answer is based on a permissible construction
of the statute.
In Bais Yaakov, the D.C. Circuit stopped after the first step,
Judge Kayatta notes. It held that Congress had spoken directly
about whether solicited fax advertisements required opt-out notices
because the text of the statute explicitly required opt-out notices
only on unsolicited fax advertisements and said nothing about
requiring such notices on solicited fax advertisements.
Judge Kayatta holds that this reasoning makes good sense. He
explains that to read the statute as requiring opt-out notices on
solicited advertisements would be to remove the word "unsolicited"
from the provision discussing opt-out notices or to ink in new
provisions discussing solicited faxes.
Bais Yaakov argues, however, that the Court of Appeals' precedent
compels a different understanding of whether the FCC has authority
to require opt-out notices on solicited fax advertisements. It
attempts to analogize to Alexander v. Treasurers of Boston
University, 766 F.2d 630 (1st Cir. 1985), a case concerning the
so-called Solomon Amendment, which denied federal financial aid to
students who were required to register for the military draft but
failed to do so.
The Court of Appeals found that requiring applicants for aid to
indicate that they were eligible for that aid, with a "minimum of
fuss and inconvenience," to be within the Secretary's authority to
promulgate regulations so as to do the job Congress assigned it.
Judge Kayatta finds that the analogy to Alexander is unpersuasive.
There, as explained, the Court of Appeals concluded that, where the
Secretary was uncertain whether a particular aid applicant was
within the category of people who might be denied aid under the
statute, it could impose a burden on that individual in the name of
determining whether he or she was in fact within that regulable
category.
Bais Yaakov asks the Court of Appeals to hold something very
different: that an agency can regulate a particular type of fax
that it knows with certainty is necessarily beyond its regulatory
authority--specifically, a first fax that is plainly a solicited
one--in order to determine whether a subsequently received fax does
fall within the scope of its authority.
Judge Kayatta states that Bais Yaakov has not explained why the
Panel can or should extend Alexander in that way. As such, the
Opt-Out Regulation finds no haven in Alexander.
II. Denial of Class Certification
The Panel turns its attention next to Bais Yaakov's appeal of the
district court's order denying class certification. In briefing
that challenge, the parties sensibly train their arguments on the
requirements of Rule 23(b)(3) of the Federal Rules of Civil
Procedure, which states in pertinent part that a class action may
be maintained if the court finds that the questions of law or fact
common to class members predominate over any questions affecting
only individual members, and that a class action is superior to
other available methods for fairly and efficiently adjudicating the
controversy.
True to form, ACT points to five issues allegedly central to the
relief sought that ACT claims cannot be resolved fairly without an
unmanageable need to consider the varying circumstances of
individual class members. These issues are: (1) Did the school
actually receive a fax from ACT? (2) Which fax did it receive? (3)
Was the fax an advertisement when viewed in the circumstances of
that recipient? (4) Does that school have the capacity to sue or
belong to a class? and (5) Did the recipient of the fax
advertisement provide prior express permission for ACT to send the
advertisement by fax?
The district court sidestepped the first four of these issues,
training its attention on the fifth, the question of permission:
Did a recipient of a faxed advertisement give ACT prior express
permission to send the advertisement by fax? Under Class A, this
issue must be resolved to determine even if someone is a class
member (i.e., received an "unsolicited" fax). Under Class B, this
issue must be resolved to determine whether ACT has a defense on
the merits (i.e., that it received prior express permission to send
the fax).
In either instance, the pivotal Rule 23 question is whether the
record reasonably shows that some putative class members may have
permitted ACT to send by fax what ACT faxed them and, if so,
whether there is a fair and efficient method for culling those
consenting recipients from the class, Judge Kayatta notes. The
district court found that ACT presented sufficient evidence that
the class likely included members who invited ACT to send any
materials by fax, and that to identify those members the court
would have to "parse through each unique relationship" between
every class member and ACT; hence, certification of Class B was
precluded for lack of predominance.
As to Class A, the district court found that limiting the
definition of class members to those who received "unsolicited"
faxes created a prohibited "fail-safe class," Messner v. Northshore
Univ. HealthSystem, 669 F.3d 802, 825 (7th Cir. 2012), and that, in
any event, no jiggering with the class definition would eliminate
the need to decide the issue of permission (or solicitation) for
each putative class member.
Bais Yaakov points out (correctly) that the TCPA requires
permission to send advertisements, not just faxes. To leverage that
point, Bais Yaakov argues that the three subject faxes were
advertisements. The declarations, though, deflect the thrust of
this argument because they expressly refer to the specific
documents appended to the complaint, Judge Kayatta finds.
In short, even if the Court of Appeals assumes that these documents
are advertisements, ACT would not incur liability if in the context
of a particular relationship a request for ACT publications was
clearly understood as an invitation to fax what was faxed.
On this record, the Court of Appeals sees no abuse of discretion in
the district court's finding that there were, among the thousands
of yet-to-be-canvassed putative class members, schools that could
be found by the factfinder to have given the requisite permission.
So that left a problem: How could one identify and cull out those
who did give express permission to send what was sent?
Bais Yaakov has made no argument that the court could cull from the
class the consenting schools in an administratively feasible way,
protective of ACT's rights. The district court, therefore,
reasonably determined that individual issues of permission would
predominate over common questions for both Class A and Class B,
Judge Kayatta holds.
Bais Yaakov has asked that, were the Court of Appeals to affirm the
district court's denial of class certification, the Appellate Court
should direct the district court to consider revising the class
definitions as Bais Yaakov now proposes. Judge Kayatta notes that
Bais Yaakov has not explained how these alternative definitions
might cure the problems in the class definitions. Indeed, the
Panel's discussion effectively assumed--favorably to Bais
Yaakov--that each putative class member received those three
documents from ACT via fax. In short, the proposed amendment would
not eliminate the need to resolve individual issues of permission.
Hence, Judge Kayatta holds, the district court did not abuse its
discretion in finding that the proposed classes could not be
certified.
III. Dismissal of Individual Claim
The Court of Appeals considers, finally, Bais Yaakov's appeal from
the dismissal of its own individual claim as moot. After denying
Bais Yaakov's motion to proceed as a class action, the district
court turned to the merits of the case, eventually denying in
pertinent part contending motions for summary judgment on the
questions of whether the three faxes appended to the complaint were
advertisements and whether Bais Yaakov had permitted ACT to send
them by fax.
ACT thereupon sent Bais Yaakov a check in the amount of $45,600,
which Bais Yaakov does not dispute is the most that it can recover
in this lawsuit. In a letter accompanying the check, ACT also
promised to honor the check no matter the outcome of the case, and
it offered to deposit the check with the district court, to be held
until any appeal is completed and final judgment entered. ACT also
promised not to send Bais Yaakov any further faxes "that violate
the TCPA," upon pain of paying "$1,500 should it send any such
fax." The record also reflects that ACT has sent no faxes of any
type to Bais Yaakov since 2012.
Bais Yaakov rejected the check and the accompanying promises.
Unimpressed, the district court concluded that Bais Yaakov had
received all that it could possibly receive as damages, and that it
had no basis to obtain injunctive relief because "the allegedly
wrongful behavior could not reasonably be expected to recur."
The precedent is admittedly uncertain and sparse on this subject,
Judge Kayatta observes. After all, not many plaintiffs walk away
from an offer to pay 100% of what they seek. Nevertheless, there
are reasons to conclude that ACT's tender of a check and associated
promises did not moot Bais Yaakov's claims, Judge Kayatta points
out.
Judge Kayatta notes that as best the Panel can tell, Bais Yaakov's
damage claim is not moot. There is Bais Yaakov's request for
injunctive relief. The Panel finds no error in the district court's
finding that ACT's cessation of sending faxes to Bais Yaakov since
2012, its deletion of Bais Yaakov's fax number from ACT's database,
and its admission that any further faxing to ACT would render ACT
liable, all combine to establish that ACT's allegedly wrongful
behavior as to Bais Yaakov "could not reasonably be expected to
recur."
Bais Yaakov makes no other argument that its individual claim for
injunctive relief should survive if the Court of Appeals both
affirms the denial of class certification and finds no error in the
district court's finding that Bais Yaakov cannot reasonably be
expected to receive any more faxes from ACT after eight years of
silence and the express assurances tendered.
Decision
For these reasons, the Court of Appeals affirms the district
court's denial of class certification and its dismissal of the
claim for injunctive relief. The Court of Appeals otherwise vacates
the judgment and remands for further proceedings.
BARRON, Circuit Judge, concurs.
A full-text copy of the Court's Opinion dated Aug. 30, 2021, is
available at https://tinyurl.com/jthpjdhc from Leagle.com.
Aytan Y. Bellin -- aytan.bellin@bellinlaw.com -- with whom Bellin &
Associates LLC was on brief, for the Appellant.
Robert A. Burgoyne -- RBurgoyne@perkinscoie.com -- with whom
Perkins Coie LLP, Robert L. Leonard -- Rleonard@dwpm.com -- and
Doherty, Wallace, Pillsbury & Murphy, P.C., were on brief, for the
Appellee.
AIR METHODS: Court Partly Grants Scarlett's Bid to Amend Judgment
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The U.S. District Court for the District of Colorado granted in
part and denied in part the Plaintiffs' motion to alter or amend
judgment in the lawsuit entitled JEREMY LEE SCARLETT, on behalf of
himself and all others similarly situated, Plaintiff v. AIR METHODS
CORPORATION and ROCKY MOUNTAIN HOLDINGS, LLC, Defendants, Civil
Action No. 16-cv-02723-RBJ, Consolidated Case Nos. 17-cv-00485, No.
17-cv-00502, 17-cv-00509, 17-cv-00667, 17-cv-791, 19-cv-01771,
19-cv-01951 (D. Colo.).
On May 11, 2021, the Court issued an order granting the Plaintiffs'
motion for summary judgment. The Court entered final judgment on
the next day. Both sides have since appealed. Meanwhile, the
Plaintiffs filed a motion to alter or amend the judgment and ask
the Court to address their motion for class certification on its
merits. Additionally, though addressed in separate motions, the
parties are disputing whether there was a "prevailing party" and,
in effect, are asking the Court to alter or amend the judgment to
address that dispute and to award costs. The Court addresses these
issues in the Order.
A. Initial Proceedings in the District Court
Defendants Air Methods Corp. and Rocky Mountain Holdings, LLC
(collectively "AMC") provide air ambulance services to patients
experiencing medical emergencies when a physician or other
qualified health care professional determines that air transport is
medically necessary. In addition to the doctor's certification, AMC
requires completion of two documents for each patient: an
Authorization and Consent form ("A&C"), and an Assignment of
Benefits form ("AOB"). The A&C must be signed prior to transport,
either by the patient, if possible; or by the patient's family
member, if available; or an AMC employee, if neither the patient
nor a family member is able or available to sign. The AOB is
completed and signed by the patient or family member following
transport.
AMC unilaterally sets the price for its services. It does not
determine price based on any health-related services provided by
EMTs while patients are in transit. Rather, AMC uses two numbers to
determine the cost of each flight: a base charge or "lift fee,"
which the patient will be charged regardless of the number of miles
the helicopter travels; this charge generally is approximately
$30,000; and a mileage rate of approximately $300 per mile. The
Plaintiffs have alleged that the average cost is in the range of
$47,000. Following each flight, Air Methods bills the patient for
its services based on these numbers. Insurance pays about $12,000
on average, and the rest is the responsibility of the patient.
Neither the A&C form nor any other document provided to these
patients or their representatives prior to transport mentions the
price or how the price would be determined. There is no negotiation
between AMC and the patients, or the patients' representatives, or
the patients' healthcare providers, concerning the price of the
service prior to transport.
This case was initially filed as a putative class action on Nov. 4,
2016, by Jeremy Lee Scarlett. The Scarlett case was later
consolidated with three similar cases filed in this district in
2017 (Bartley, Adams, Stephens). Those cases, referred to as the
Scarlett cases, were collectively brought by 35 named plaintiffs.
The Plaintiffs claimed that there was no express contract because
they never agreed on a price, and that AMC breached implied
contracts by charging more than the fair market value of the
services. They sought declaratory and injunctive relief, including
disgorgement of amounts already collected by AMC, damages,
attorneys' fees and costs.
Another putative class action filed in 2017, Cowen v. Air Methods,
No. 17-cv-00791-RBJ, brought by five named plaintiffs, remained
separate from the Scarlett cases because it pursued different
theories. They sought a declaration that there were no contracts
because there was no agreement on a price; or alternatively, that a
contract for the reasonable value of the services is implied under
federal common law; but that AMC breached the implied contracts by
charging more than the reasonable value of the services. The Cowen
plaintiffs asked the Court to declare the appropriate method for
determination of the reasonable value of the services; restitution
of amounts paid in excess of that amount; damages; costs and
attorney's fees.
AMC moved to dismiss the Scarlett cases and the Cowen case on
grounds that the claims were preempted by the Airline Deregulation
Act ("ADA"), 49 U.S.C. Section 41713. This Court agreed, granted
the motions to dismiss, and entered judgment in favor of AMC on May
25, 2018.
B. The First Appeal
The Plaintiffs appealed that decision, and the Tenth Circuit
affirmed in part, reversed in part, and remanded in part (Scarlett
v. Air Methods Corp., 922 F.3d 1053 (10th Cir. 2019)). The court
agreed with AMC's preemption argument to the extent that it
precluded the application of state common law that would enable the
Court to determine a reasonable price such on a contract
implied-in-law or unjust enrichment basis. The court affirmed the
dismissal of the Scarlett cases which had relied on a contract
implied-in-law theory.
However, the court held that parties could enter into an express
contract or a contract implied-in-fact that would not be preempted
by the ADA. A contract implied-in-fact is an agreement founded upon
a meeting of minds, which, although not embodied in an express
contract, is inferred, as a fact, from conduct of the parties
showing, in the light of the surrounding circumstances, their tacit
understanding (quoting Hercules, Inc. v. United States, 516 U..S.
417, 424 (1996)). The court concluded that this Court construed the
Cowen plaintiffs' declaratory judgment claim too narrowly and
remanded the case for this Court to consider a single
issue--whether the Cowen plaintiffs entered into an express or
implied-in-fact contract for defendants' emergency air transport
services.
C. Proceedings on Remand
Following the remand, two new cases were filed that largely
mimicked the Cowen case: Armato v. Air Methods, No.
19-cv-01771-RBJ; and Dequasie v. Air Methods, No. 19-cv-01951-RBJ.
Those cases were consolidated with the Cowen case under the
Scarlett v. Air Methods caption. Thus, although the dismissal of
the Scarlett cases was affirmed, and the remaining cases filed by
Cowen, Armato and Dequasie are all that remain in the case, the
original caption lives on.
The parties conducted discovery as to the facts applicable to each
of the named plaintiffs in the remaining three consolidated cases.
The Court did not permit class discovery, noting in a minute order
that it "will not authorize class-wide discovery at this time, and
it has made it reasonably clear that it is unlikely to certify a
class in this case."
District Judge R. Brooke Jackson states that his view was that
whether an express or an implied-in-fact contract had been formed
would require findings of fact applicable to each patient's
individual case, so that class action certification appeared to be
problematic.
Following discovery, the Cowen plaintiffs, joined by Mr. Armato,
filed a motion for summary judgment. The Dequasie plaintiffs filed
a motion for summary judgment. Both motions sought declarations
that neither an express contract nor a contract implied-in-fact
existed as to any of the named plaintiffs.
The motions were fully briefed, and on May 11, 2021, the Court
entered its order granting summary judgment in favor of the
Plaintiffs. That order is now on appeal by both sides.
Judge Jackson says that he need not repeat the Court's findings and
conclusions from its summary judgment order, as the order will
speak for itself. He notes, however, that the Court began its
analysis of the contract issues by noting the "peculiar" positions
of the parties.
On the one hand, although in each case someone signed the A&C and
AOB forms, there was no mention of the cost of the transport in
those forms, nor was there any evidence that the cost had been
discussed with, let alone agreed by, any patient or family member.
AMC, nevertheless, insisted that a contract had been formed
requiring the patients to pay whatever amount AMC charged. On the
other hand, the Plaintiffs maintained that because no express or
implied in fact contract was formed, AMC could not collect any
compensation for its services, and it should refund any amounts
already collected.
D. Class Certification Motions
On Sept. 3, 2020, the Cowen plaintiffs had filed a motion for class
certification in which they asked the Court to certify a class of
"[a]ll persons who have been charged or to whom charges have been
submitted by Defendants for air medical transportation by
Defendants from a location in (a) Arizona, (b) Missouri, and/or (c)
Alabama." They also asked the Court to issue appropriate notices to
the class; to appoint the named plaintiffs as class representatives
and their counsel as class counsel; and to declare, as to those
three classes, that no express or implied contract had ever been
formed between the members of the class.
Going one step further, the Cowen plaintiffs asked the Court to
declare that AMC is without legal authority to demand or to collect
any payment for the transportation services provided to the class
members. Finally, they requested awards of attorney's fees and
costs.
The Dequasie plaintiffs filed a separate motion to certify two
classes: one class consisting of "all persons billed by Defendants
for air ambulance transportation from a location in Oklahoma who
did not sign, personally or through an authorized person, an
Authorization and Consent Form," and another class consisting of
"all persons billed by Defendants for air ambulance transportation
from a location in Oklahoma who signed, personally or through an
authorized person, an Authorization and Consent Form." Their motion
did not specify additional relief sought, but in the Dequasie
complaint plaintiffs requested, in addition to certification of the
classes and designation of the named plaintiffs as class
representatives and counsel as class counsel, damages, a
constructive trust on amounts AMC had already but wrongfully
collected, declaratory relief, injunctive relief, costs, interest
and attorney's fees.
In the same order in which the Court granted the Plaintiffs' motion
for summary judgment, Judge Jackson found that the Plaintiffs'
respective motions for class certification were moot.
E. Motion to Alter or Amend
On June 8, 2021, the Cowen and Dequasie plaintiffs filed the
pending joint motion to alter or amend the judgment pursuant to
Fed. R. Civ. P. 59(e). AMC has responded in opposition; and the
Plaintiffs have replied. While that briefing was taking place the
parties also filed notices of appeal and cross-appeal. The Tenth
Circuit issued an order abating the appeals pending a decision by
this Court on the motion to alter or amend.
F. Costs
Neither the Court's order granting summary judgment nor the Final
Judgment identified a prevailing party for purposes of an award of
costs pursuant to Fed. R. Civ. P. 54(d)(1) or D.C.COLO.L.Civ.R
54.1. Nevertheless, the Cowen plaintiffs filed a bill of costs in
the amount of $9,841. They later filed an amended bill of costs in
the amount of $9,252. The Dequasie plaintiffs filed a bill of costs
in the amount of $6,340. They later filed an amended bill of costs
in the amount of $3,785. AMC filed a bill of costs in the amount of
$13,296.60.
AMC objected to the Cowen plaintiffs' bill of costs, arguing that
AMC was the prevailing party. AMC objected to the Dequasie
plaintiffs' bill of costs, arguing either that either AMC was the
prevailing party or that there was no prevailing party.
The Clerk, attempting to determine who was the prevailing party for
purposes of taxation of costs, concluded that AMC, the Dequasie
plaintiffs, and the Cowen plaintiffs were all prevailing parties
under Rule 54(d)(1). He further noted that none of the parties
objected to the amounts of costs claimed by other parties. He
awarded AMC costs of $13,296 and the Dequasie plaintiffs costs of
$3,785. However, because the Cowen plaintiffs' counsel did not
appear for the Clerk's hearing on costs, he awarded no costs to
them.
Conclusions
A. Motion for Class Certification
The Court is not persuaded by AMC's procedural objection. As the
Defendants acknowledge, a Rule 59(e) motion may be granted on,
among other grounds, the need to correct clear error or prevent
manifest injustice. That provides a great deal of latitude for
courts to correct errors.
Having reviewed the parties' briefs, Judge Jackson concludes that
the motion for class certification was not "moot." However, the
result does not change. The Court now denies the motion for class
certification. Judge Jackson says he does so for several reasons.
First, this Court was ordered on remand to determine whether the
Cowen plaintiffs entered into either an express or an implied
contract with AMC. The Court did that. Because the Dequasie
plaintiffs filed claims similar to the Cowen plaintiffs after the
remand order, Judge Jackson included them with the Cowen plaintiffs
in answering the question.
Second, Judge Jackson does not in any event find that the case
qualifies for class certification under Rule 23 of the Federal
Rules of Civil Procedure. Judge Jackson will assume for present
purposes that the Court could define a class that would satisfy the
prerequisites of Rule 23(a). Numerosity, common questions and
adequacy of representation are relatively clear.
AMC's practice of billing based on its base rate plus a mileage
rate with no discussion of price or its billing methodology with
the patient or patient's representative was its standard practice.
AMC has pointed out that in some cases it has entered into
post-transport agreements regarding the cost of the service, and in
others it has not attempted to collect the full fee or even any
fee. Still, most patients were at least at risk of being subjected
to the same billing practices regardless of their individual
circumstances, and the Court could define a class as to which the
11 named plaintiffs were typical.
But Judge Jackson says he would not find that Rule 23(b)(2), which
is the part of Rule 23(b) on which the Plaintiffs rely, has been
met.
Rule 23(b)(2) requires a finding that "the party opposing the class
has acted or refused to act on grounds that apply generally to the
class, so that final injunctive relief or corresponding declaratory
relief is appropriate respecting the class as a whole." Judge
Jackson does not find that injunctive or declaratory relief, both
being equitable remedies, is appropriate for class-wide application
in the circumstances presented.
AMC's view is that it can bill patients whatever it decides to bill
them, without any determination of the reasonable value of the
service provided, Judge Jackson notes. They are, in this Court's
view, taking advantage of the patients at a time when they are at
their most vulnerable and in no realistic position to decline the
service.
On the other hand, the Plaintiffs' position is also inequitable,
Judge Jackson points out. They are asking the Court to declare, not
just for the 11 patients, but with respect to tens if not hundreds
of thousands of patients that they do not have to pay AMC anything
for the transport; and, indeed, that AMC must refund anything that
the patient, or the patient's family, or the patient's insurance
carrier has already paid.
Sending out notices inviting tens or hundreds of thousands of
patients to believe that they needn't pay anything for the
valuable, often life-saving, service provided by AMC would be
ridiculous, Judge Jackson states.
AMC is clearly on notice that the Court has declared that the A&C
and AOB forms and AMC's standard procedure do not create an
enforceable agreement. Absent some additional conduct that clearly
demonstrates an agreement to price or at least to the methodology
for determining the price, there is no contract, Judge Jackson
opines. If AMC were to attempt to bill patients using its standard
methods before the Tenth Circuit resolves the pending appeals, it
will in Judge Jackson's view be acting irresponsibly and at its own
risk. Judge Jackson says he will not speculate that AMC will do
this.
Judge Jackson says he is aware that a huge but unspoken issue here
is the Plaintiffs' attorney's fees. The Plaintiffs' counsel have
labored hard and long, and they have exposed a serious problem in
AMC's billing practices. Judge Jackson presumes that they have not
been compensated for their time. But attorney's fees cannot drive
his resolution of the issue on its merits. The parties created the
present untenable situation by their refusal to settle the dispute
on reasonable terms.
In his view, Judge Jackson states that it is time for them to
reconsider their positions, to reach a resolution that applies
beyond the 11 Plaintiffs, and to take into consideration reasonable
compensation for counsel.
For these reasons, the Plaintiffs' motion to alter or amend
judgment is granted in part and denied in part. It is granted to
the extent that the Court vacates the portion of its previous order
finding the Plaintiffs' motions for class certification to be moot.
However, it denies the motion to the extent that the Plaintiffs
moved for certification of a class. The Court denies the
Plaintiffs' motions for class certification. An Amended Final
Judgment will so provide.
B. Costs
Costs other than attorney's fees should be allowed to the
"prevailing party" unless the Court provides otherwise, Judge
Jackson holds, citing Roberts v. Madigan, 921 F.2d 1047, 1058 (10th
Cir. 1990). Costs, if awarded, are taxed by the Clerk, subject to
review by the Court if requested within seven days of the Clerk's
action. This district's local rules clarify the procedures for
submitting bills of costs and obtaining judicial review.
In this instance, the Court did not designate a prevailing party or
determine that any party was entitled to costs. Nevertheless, after
obtaining an extension of time, each party, after conferring, filed
a bill of costs as noted. The Clerk made a valiant attempt to
determine a prevailing party, but it was next to impossible for him
to make the determination, and it was not his responsibility
anyway.
Judge Jackson notes that a good argument can be made that there was
no prevailing party. AMC prevailed to an extent on preemption. But
the named plaintiffs prevailed on the express and implied-in-fact
contract arguments on remand. The Plaintiffs failed to gain class
certification, so one could say that AMC came out ahead on that
issue, albeit not for the reasons provided in their brief.
Nevertheless, the Court now finds that the Plaintiffs were the
"prevailing parties" on the issues specific to the 11 named
Plaintiffs themselves. There is no enforceable contract requiring
them to pay AMC. The Court vacates the costs awards provided by the
Clerk. Because AMC did not object to the amounts requested, the
Court will award costs to the Cowen plaintiffs of $9,252. The Court
will award costs to the Dequasie plaintiffs of $3,785. The Amended
Final Judgment will so provide.
A full-text copy of the Court's Order dated Aug. 30, 2021, is
available at https://tinyurl.com/2vs78s6d from Leagle.com.
ALEJANDRO MAYORKAS: Castellar Bid for Class Status Partly OK'd
--------------------------------------------------------------
In the class action lawsuit captioned as JOSE ORLANDO CANCINO
CASTELLAR, et al., v. ALEJANDRO MAYORKAS, et al., Case No.
3:17-cv-00491-BAS-AHG (S.D. Cal.), the Hon. Judge Cynthia Bashant
entered an order granting in part and denying in part the
Plaintiffs' motion for class certification as follows:
1. The following class is certified for declaratory relief
only:
"All individuals in the Southern District of California --
other than individuals subject to expedited removal under
section 1225(b)(1), unaccompanied minors, or individuals
with administratively final removal orders -- who (1) are
or will have been in the civil custody of the San Diego
Field Office of ICE, the San Diego Field Office of CBP
Office of Field Operations, the San Diego Sector of U.S.
Border Patrol, and/or the El Centro Sector of U.S. Border
Patrol, collectively, for longer than 48 hours and (2)
have not had a hearing before an immigration judge;"
2. The Plaintiffs Cancino Castellar and Ana Maria Hernandez
Aguas are appointed class representatives; and
3. On or before September 15, 2021, the Plaintiffs are
ordered to submit a short brief, not to exceed three
pages, about which attorneys are to be appointed as class
counsel pursuant to Federal Rule of Civil Procedure 23(g).
Judge Bashant says that the Plaintiffs have met the requirements of
Rule 23(a) and (b)(2).
A copy of the Court's order dated Sept. 8, 2021 is available from
PacerMonitor.com at https://bit.ly/2X9JpkB at no extra charge.[CC]
ALLERGAN PLC: DeKalb Suit Gets Class Status in Securities Case
--------------------------------------------------------------
In the class action lawsuit RE ALLERGAN PLC SECURITIES LITIGATION,
Case No. 1:18-cv-12089-CM-GWG (S.D.N.Y.), the Hon. Judge Colleen
McMahon entered an order:
1. granting DeKalb's motion to certify a class of:
"All individuals and entities that purchased or otherwise
acquired Allergan preferred stock or common stock between
January 30, 2017 and December 19, 2018, inclusive (the
"Class Period"), and who were damaged thereby;"
Excluded from the Class are the Defendants; the officers,
directors, and affiliates of Allergan, at all relevant
times; Allergan's employee retirement or benefit plan(s)
and their participants or beneficiaries to the extent they
purchased or acquired Allergan common stock through any
such plan(s); any entity in which Defendants have or had
controlling interest; immediate family members of any
excluded person; and the legal representatives, heirs,
successors, or assigns of any excluded person or entity;
and
2. appointing DeKalb's attorneys at Faruqi & Faruqi, LLP as
class counsel.
Judge McMahon says that Courts have long recognized that class
actions are a desirable means for resolving claims based on
securities laws, and "Most violations of the federal securities
laws, such as those alleged in the Complaint, inflict economic
injury on large numbers of geographically dispersed persons such
that the cost of pursuing individual litigation to seek recovery is
often not feasible." In re Blech Secs. Litig., 187 F.R.D. 97, 107
(S.D.N.Y. 1999). Class actions allow litigants to avoid disparate
results among those who are able to seek redress.
With over 13 million shares of common stock trading per week, there
is no question that there may be an exceedingly high number of
individual lawsuits absent a class action. Thus, class
certification is the superior method for adjudicating this case,
Judge McMahon adds.
Allergan is a global pharmaceutical and medical products company
that manufactures and sells, among other things, textured breast
implants for use in breast-augmentation and breast-reconstruction
procedures. During the class period, Allergan employed
approximately 17,000 people and had two classes of publicly traded
equity securities -- common stock and preferred stock. Two of
Allergan’s breast implant product lines -- the "Natrelle 410" and
"Biocell" -- are the subject of this lawsuit.
A copy of the Court's order dated Sept. 8, 2021 is available from
PacerMonitor.com at https://bit.ly/3A9fyHr at no extra charge.[CC]
ALLEY POND: Arevalo et al. Sue Over Failure to Pay Overtime Wages
-----------------------------------------------------------------
JOSE MENDOZA AREVALO, JOSE FLORES ALFARO, and MARCOS AREVALO,
individually and on behalf of all others similarly situated,
Plaintiffs v. ALLEY POND HOUSE CORP. d/b/a MIZUMI and KENNETH
CHIANG and CHING CHIANG, as individuals, Defendants, Case No.
1:21-cv-04962 (E.D.N.Y., September 2, 2021) bring this collective
action complaint against the Defendants to recover damages for
their alleged egregious violations of the Fair Labor Standards Act
and the New York Labor Law.
Plaintiff Jose Mendoza Arevalo has worked as a cook, cleaner,
dishwasher and perform other miscellaneous duties for the
Defendants from in or around December 2016 until in or around March
2020. Plaintiff Jose Flores Alfaro was also employed by the
Defendants as a cook, cleaner, and to perform other miscellaneous
duties from in or around November 2014 until in or around March
2020, while Plaintiff Marcos Arevalo was employed to perform as a
cook and food preparer from in or around 2009 until in or around
March 2020.
The Plaintiffs claim that although they perform duties for the
Defendants more than 40 hours per week, the Defendants did not pay
them their lawfully earned 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 Defendant also failed to pay them
spread of hours pay at the legally prescribed minimum wage for each
day worked over 10 hours. Moreover, the Defendants willfully failed
to keep accurate payroll records, and to post notices of the
minimum wage and overtime wage requirements in a conspicuous place
at the location of their employment as required by both the FLSA
and NYLL, the Plaintiffs added.
Alley Pond House Corp. d/b/a Mizumi is a restaurant owned and
operated by the Individual Defendants. [BN]
The Plaintiffs are represented by:
Roman Avshalumov, Esq.
HELEN F. DALTON & ASSOCIATES, P.C.
80-02 Kew Gardens Road, Suite 601
Kew Gardens, NY 11415
Tel: (718) 263-9591
ALLSTATE INSURANCE: Class Cert. Briefing Sched. in Hilario Extended
-------------------------------------------------------------------
In the class action lawsuit captioned as TISHA HILARIO,
individually and on behalf of a class of all others similarly
situated, v. ALLSTATE INSURANCE COMPANY, Case No. 3:20-cv-05459-WHO
(N.D. Cal.), the Hon. Judge William H. Orrick entered an order
that:
1. The Class Certification Briefing Schedule shall be
extended as follows:
a. Motion to be filed by January 24, 2022.
b. Response to be filed by March 7, 2022.
c. Reply to be filed by April 4, 2022.
d. Hearing to occur on April 27, 2022.
2. No other deadlines shall be affected by this Stipulation.
The Allstate Corporation is an American insurance company,
headquartered in Northfield Township, Illinois, near Northbrook
since 1967. Founded in 1931 as part of Sears, Roebuck and Co., it
was spun off in 1993. The company also has personal lines insurance
operations in Canada.
A copy of the Court's order dated Sept. 8, 2021 is available from
PacerMonitor.com at https://bit.ly/3A9ARcf at no extra charge.[CC]
The Defendant is represented by:
Sonia R. Martin, Esq.
DENTONS US LLP
One Market Plaza
Spear Tower, 24th Floor
San Francisco, CA 94105
Telephone: (415) 267-4000
Facsimile: (415) 267 4198
E-mail: sonia.martin@dentons.com
- and -
Mark L. Hanover, Esq.
233 South Wacker Drive, Suite 5900
Chicago, IL 60606
Telephone: (312) 876-8000
Facsimile: (312) 876-7934
E-mail: mark.hanover@dentons.com
- and -
Isabella C. Hsu, Esq.
601 South Figueroa Street, Suite 2500
Los Angeles, CA 90017-5704
Telephone: (213) 623-9300
Facsimile: (213) 623-9924
E-mail: isabella.hsu@dentons.com
ALLSTATE INSURANCE: Kombol Seeks to Certify Class Action
--------------------------------------------------------
In the class action lawsuit captioned as BO KOMBOL, individually
and on behalf of other persons similarly situated, v. ALLSTATE
INSURANCE COMPANY; ALLSTATE VEHICLE AND PROPERTY INSURANCE COMPANY
; ALLSTATE INDEMNITY COMPANY; ALLSTATE PROPERTY AND CASUALTY
INSURANCE COMPANY; and DOES 1–100, Case No. 1:20-cv-00070-SPW (D.
Mont.), the Plaintiff asks the Court to enter an order certifying
the case as a class action under Rule 23(b)(3) of the Federal Rules
of Civil Procedure, as follows:
1. Class I -- The GCOP Class
"All Allstate policyholders in Montana: (a) Who suffered a
structural losses under an Allstate homeowner (b) From
April 27, 2012 to present; (c) Where Allstate accepted
liability; (d) But where the ACV payment did not include
GCOP, unless the policy; insured was paid that full amount
of GCOP as part of the RCV payment;" and
2. Class II -- the UTPA Class
"All members of Class I from April 27, 2018 to the date
the class is certified (owing to the two-year statute of
limitations on UTPA actions)."
The Allstate Corporation is an American insurance company,
headquartered in Northfield Township, Illinois, near Northbrook
since 1967. Founded in 1931 as part of Sears, Roebuck and Co., it
was spun off in 1993. The company also has personal lines insurance
operations in Canada.
A copy of the Plaintiff's motion to certify class dated Sept. 7,
2021 is available from PacerMonitor.com at https://bit.ly/2VGKyzO
at no extra charge.[CC]
The Plaintiff is represented by:
Evan Selik, Esq.
MCCATHERN LLP
523 West 6 th Street, Suite 830
Los Angeles, CA 90014
Telephone: (213) 225-6150
Facsimile: (213) 225-6151
E-mail: eselik@mccathernlaw.com
- and -
Sean Morris, Esq.
Jesse Kodadek, Esq.
WORDEN THANE P.C.
321 W. Broadway Street, Suite 300
Missoula, MT 59802
Telephone: (406) 721-3400
E-mail: smorris@wordenthane.com
jkodadek@wordenthane.com
ALLSTATE INSURANCE: Loses Bid to Dismiss Garner's TCPA Claim
------------------------------------------------------------
The U.S. District Court for the Northern District of Illinois,
Eastern Division, denies Allstate's motion to dismiss Count I of
the complaint in the lawsuit captioned BENJAMIN GARNER and DEBORAH
SCHICK, individually and on behalf of all similarly situated
individuals, Plaintiffs v. ALLSTATE INSURANCE COMPANY, Defendant,
Case No. 20 C 4693 (N.D. Ill.).
Despite having taken steps to prevent unsolicited telemarketing
calls to their cellphones, Plaintiffs Benjamin Garner and Deborah
Schick each allegedly received numerous such calls from Allstate
Insurance Co. or its agents in 2019. Based on these calls, the
Plaintiffs assert two counts against Allstate under the Telephone
Consumer Protection Act ("TCPA") on behalf of themselves and all
other similarly situated individuals.
Count I alleges that Allstate violated the TCPA by making numerous
unauthorized calls to Plaintiffs' cellphones using an automatic
telephone dialing system ("ATDS"). Count II alleges that Allstate
violated the TCPA by repeatedly calling Plaintiffs' cellphones
after they had registered their phone numbers on the National
Do-Not-Call ("DNC") Registry.
Allstate moves to dismiss Count I under Rule 12(b)(6) of the
Federal Rules of Civil Procedure. Allstate argues that Count I
fails to allege a violation of the TCPA for two related reasons.
First, Allstate contends that the Plaintiffs have not pleaded facts
sufficient to allow the Court to draw a reasonable inference that
Allstate made the alleged calls using an ATDS. Second, Allstate
argues that the Plaintiffs' descriptions of its alleged dialing
system do not meet the definition of an ATDS.
As to its first argument, Allstate contends that the complaint
merely parrots the statutory language of the TCPA, without
including factual allegations sufficient to infer that Allstate
actually used an ATDS to place the challenged calls. As this Court
observed in a recent case, courts in this district have adopted
differing views of what it takes to allege use of an ATDS, citing
Zeidel v. Nat'l Gas & Elec., LLC, No. 18 C 6792, 2019 WL 2161546,
at *3 (N.D. Ill. May 17, 2019).
Likewise in the case, the allegations are similarly sufficient to
allow the reasonable inference that Allstate used an ATDS, District
Judge John Z. Lee notes. Furthermore, the calls were generic in
nature and served to market Allstate's insurance policies to the
Plaintiffs, who had no prior business relationship with Allstate.
As a result, there is no indication that Allstate had any reason to
call the Plaintiffs' phone numbers aside from telemarketing
purposes.
Viewed in the light most favorable to the Plaintiffs, as they must
be at this juncture, these allegations plausibly allege that
Allstate used an ATDS, Judge Lee holds. He adds that the Plaintiffs
have alleged sufficient facts about the content, context, and
number of the unsolicited telemarketing calls they received from
Allstate to permit the reasonable inference that Allstate used an
ATDS.
Next, Allstate argues that the Plaintiffs' allegations describing
the nature of its dialing system are inconsistent with the
definition of an ATDS that the Seventh Circuit articulated in
Gadelhak v. AT&T Servs., Inc., 950 F.3d 458, 468 (7th Cir. 2020),
and the Supreme Court adopted in Facebook, Inc. v. Duguid, 141
S.Ct. 1163 (2021).
Allstate rightly concedes that this description of an ATDS is
consistent with Gadelhak and Facebook. Nonetheless, Allstate
asserts that the Plaintiffs' allegation that such a dialing system
is "also known as a predictive dialer" defeats the sufficiency of
this description because the TCPA does not necessarily encompass
predictive dialers. The Court disagrees.
As the Court observed in Zeidel, predictive dialers include a wide
variety of devices, some of which do not qualify as an ATDS under
the TCPA because they lack the capacity to randomly or sequentially
generate numbers to dial. Importantly, however, the difference
between a predictive dialer and an ATDS is not readily apparent to
a recipient of an automated call. Rather, such a determination
requires information about the technical details of the device that
the defendant used to make the calls--information that the
plaintiff lacks prior to discovery, Judge Lee holds.
As result, "a plaintiff need not provide specific, technical
details" about the predictive dialer at issue "at the pleading
stage," Judge Lee opines. He points out that Allstate provides no
persuasive reason to depart from this approach here.
Accordingly, the allegations of Count I allow the reasonable
inference that Allstate made the challenged calls using an ATDS
within the meaning of the TCPA.
Conclusion
For these reasons, Allstate's motion to dismiss Count I is denied.
A full-text copy of the Court's Memorandum Opinion and Order dated
Aug. 30, 2021, is available at https://tinyurl.com/atjumyec from
Leagle.com.
AMAZON.COM INC: Withholds Merchants' Funds, Shenzen Suit Claims
---------------------------------------------------------------
SHENZEN SHILEZIYOU TECHNOLOGIES CO. LTD., d/b/a/ SOPOWNIC US;
SHENZHEN AIWOLI TECHNOLOGIES CO. LTD., d/b/a/ SLAOUWO; SHENZHEN
SHIDE YIXUN E-COMMERCE CO. LTD., d/b/a/ DEYIXUN; SHENZHEN CHAOSHENG
NETWORK TECHNOLOGIES CO., LTD. d/b/a/ CSTECH US; SHENZHEN RUIKE
E-COMMERCE CO., LTD., d/b/a/ RECOO DIRECT; SHENZHEN SHIMI YINGTONG
AUTOMOBILE SERVICE CO., LTD., d/b/a/ ANGELBLISS; and SHENZHEN TUDI
TECHNOLOGIES CO. LTD., d/b/a/ TUDI US; on behalf of themselves and
all others similarly situated, Plaintiffs v. AMAZON.COM, INC.;
AMAZON.COM SERVICES LLC; AMAZON PAYMENTS, INC.; AMAZON CAPITAL
SERVICES, INC.; and DOES 1-10, inclusive, Defendants, Case No.
5:21-cv-07083-VKD (N.D. Cal., September 13, 2021) is a class action
against the Defendants for breach of contract, accounting, money
had and received, unjust enrichment, declaratory relief, and
violations of the California Unfair Competition Law and the
Washington Uniform Money Services Act.
The case arises from the Defendants' alleged unlawful practice of
withholding funds that are legally and rightfully owed and due to
Amazon's third-party sellers, including the Plaintiffs, without
offering any reasonable justification and without any reasonable
business purpose. Amazon routinely holds payments for longer than
permitted by its own Amazon Services Business Solutions Agreement
in violation of state laws. The Plaintiffs bring this action to
stop any further misappropriation and misuse of funds that are
legally and rightfully due to thousands of Amazon sellers and
merchants, and to call upon the gross misdeeds of Amazon.
Shenzen Shileziyou Technologies Co. Ltd., doing business as
Sopownic US, is a foreign Chinese entity that owns and operates an
Amazon storefront account.
Shenzhen Aiwoli Technologies Co. Ltd., doing business as Slaouwo,
is a foreign Chinese entity that owns and operates an Amazon
storefront account.
Shenzhen Shide Yixun E-Commerce Co. Ltd., doing business as
Deyixun, is a foreign Chinese entity that owns and operates an
Amazon storefront account.
Shenzhen Chaosheng Network Technologies Co., Ltd., doing business
as Cstech US, is a foreign Chinese entity that owns and operates an
Amazon storefront account.
Shenzhen Ruike E-Commerce Co., Ltd., doing business as Recoo
Direct, is a foreign Chinese entity that owns and operates an
Amazon storefront account.
Shenzhen Shimi Yingtong Automobile Service Co., Ltd., doing
business as Angelbliss, is a foreign Chinese entity that owns and
operates an Amazon storefront account.
Shenzhen Tudi Technologies Co. Ltd., doing business as Tudi US, is
a foreign Chinese entity that owns and operates an Amazon
storefront account.
Amazon.com, Inc. is an online retail company, with its principal
headquarters in Seattle, Washington.
Amazon.com Services LLC is an electronic commerce company, with its
principal headquarters in Seattle, Washington.
Amazon Payments, Inc. is an online payment service provider, with
its principal headquarters in Seattle, Washington.
Amazon Capital Services, Inc. is a capital services provider, with
its principal headquarters in Seattle, Washington. [BN]
The Plaintiffs are represented by:
Edward Chen, Esq.
YK LAW LLP
445 South Figueroa St., Ste. 2280
Los Angeles, CA 90017
Telephone: (213) 401-0970
Facsimile: (213) 529-3044
E-mail: echen@yklaw.us
AMERICAN NATIONAL: California Court Narrows Claims in Yearby Suit
-----------------------------------------------------------------
The U.S. District Court for the Northern District of California
issued an order denying the Defendant's motion to transfer, and
granting in part and denying in part its motion to dismiss the
lawsuit captioned JOE S. YEARBY, Plaintiff v. AMERICAN NATIONAL
INSURANCE COMPANY, Defendant, Case No. 20-cv-09222-EMC (N.D.
Cal.).
Defendant American National Insurance Co.'s (ANICO's) motion to
transfer this case to the U.S. District Court for the Southern
District of Texas pursuant to 28 U.S.C. Section 1404(a), or to
dismiss the action pursuant to Federal Rules of Civil Procedure
12(b)(2) and 12(b)(6).
Background
Plaintiff Yearby's first amended complaint (FAC) alleges as
follows. The Plaintiff purchased life insurance policy number
UL090652 ("Policy") from ANICO on June 9, 1986, while he was a
resident of Oakland, California. The Policy application, which was
part of the Policy, was signed by the parties in California. ANICO
allegedly sought and obtained approval from California state
insurance regulators before selling and issuing the Policy to the
Plaintiff.
In October 1995, the Plaintiff notified ANICO that he had relocated
from Oakland to Glendale, Arizona. In 2005, the Plaintiff again
changed his address on file with ANICO to his current address in
Monroe, Louisiana. The FAC, thus, states that the Plaintiff
currently "is an individual and citizen of the state of Louisiana."
ANICO is an insurance company organized and existing under the laws
of Texas with a principal place of business in Galveston, which is
in the Southern District of Texas.
The gravamen of the Plaintiff's FAC is that, starting in 2010,
ANICO considered factors beyond the terms of the Policy to
determine the cost of insurance (COI) rates it charged the
Plaintiff under the Policy. More specifically, the Plaintiff
alleges ANICO failed to decrease its COI charges, as was required
by the Policy. The Plaintiff brings a single cause of action for
common law breach of contract to recover the alleged COI
overcharges.
The Plaintiff seeks to represent a class of ANICO policyholders,
who purchased life insurance policies from ANICO in California and
"who have been forced since January 1, 2010 to pay unlawful and
excessive COI rates, deducted from their account values on a
monthly basis that are not, as the policies require, determined
from time to time by ANICO based on its expectations as to future
mortality experience."
According to the FAC, venue is proper in this District because "the
events giving rise to Plaintiff's cause of action occurred in this
District and because ANICO transacts business and has transacted
business during the relevant time period within the Northern
District of California." ANICO is licensed to transact insurance in
California. Additionally, a substantial part of the acts and
omissions giving rise to the claims on behalf of the Class set
forth, including ANICO's issuance of the Plaintiff's life insurance
policy, occurred in this judicial district and/or in the San
Francisco Division.
The Plaintiff filed his initial class action complaint on Dec. 18,
2020, and his FAC on April 23, 2021. ANICO filed a motion to
dismiss the FAC on May 7, 2021, and a motion to transfer the case
to the Southern District of Texas on May 13, 2021.
Motion to Transfer
Courts engage in an "individualized, case-by-case consideration of
convenience and fairness" to determine if transfer is appropriate.
This individualized inquiry requires the Court to consider the
following factors: (1) plaintiff's choice of forum, (2) convenience
of the parties, (3) convenience of the witnesses, (4) ease of
access to the evidence, (5) familiarity of each forum with the
applicable law, (6) feasibility of consolidation with other claims,
(7) any local interest in the controversy, and (8) the relative
court congestion and time to trial in each forum.
The Court affords the Plaintiff's choice of forum significant
deference because, although he does not live here anymore, there is
no evidence of forum shopping and this District has a strong
connection to the underlying dispute given that all the policies in
the proposed class were issued in California.
The FAC defines the "California COI Overcharge Class" as: "All
owners of universal life (including variable universal life)
insurance policies issued in California by American National
Insurance Company, or its predecessors in interest, that provide
that cost of insurance rates are determined based on expectations
as to future mortality experience, and that were subjected to
monthly cost of insurance deductions on or after Jan. 1, 2010." The
Plaintiff does not seek to represent any class members, who
purchased their policies outside of California.
District Judge Edward M. Chen notes that the fact that this is a
California-only class action militates strongly in favor of the
Plaintiff's choice of forum because the Court has an interest in
ensuring that residents of its forum state are treated fairly. All
the policies that are potentially at issue in the case were issued
in California and are therefore--absent a choice of law clause to
the contrary--subject to California contract law.
Therefore, the Plaintiff's choice of forum is "not purely
fortuitous" because, although he is bringing a class action, the
class is limited to owners of life insurance policies issued by
ANICO in California, Judge Chen holds.
Because the Court gives the Plaintiff's choice of forum significant
deference, ANICO must make a strong showing of inconvenience to
warrant upsetting the Plaintiff's choice of forum.
Judge Chen finds that ANICO fails to meet its substantial burden of
showing that the other factors weigh in favor of transfer. He
finds, among other things, that the State of California does have
an interest in this dispute because it involves insurance policies
issued in California to California residents. Again, because the
Plaintiff seeks to represent a California-only class, there is
local interest in this controversy. Accordingly, this factor weighs
against transferring this case.
In sum, the Court concludes that transferring this case to the
Southern District of Texas is not "in the interest of justice."
Motion to Dismiss
Because a court must dismiss the action if it determines that it
lacks personal jurisdiction as to the plaintiff's claim, see Fed.
R. Civ. P. 12(b)(2), this Order first addresses ANICO's arguments
under Rule 12(b)(2) before turning to its request for relief under
Rule 12(b)(6).
Where no federal statute authorizes personal jurisdiction, the
district court applies the law of the forum state where it sits.
Here, the Court has specific jurisdiction over ANICO because, under
the minimum contacts test, ANICO has sufficient contacts with
California to warrant the Court's exercise of jurisdiction.
The Court, therefore, concludes that its exercise of specific
jurisdiction over this action is entirely reasonable without
examining the Hirsch v. Blue Cross, Blue Shield of Kansas City
factors.
Having determined it is appropriate to exercise personal
jurisdiction over the Plaintiff's claims, the Court can then turn
to ANICO's arguments that he failed to state a claim under Rule
12(b)(6) because his claims are untimely, barred by res judicata,
and implausible. Judge Chen finds that none of these arguments has
merit.
To raise a statute of limitations defense, ANICO must establish
that the Plaintiff discovered--or could have discovered through the
exercise of reasonable diligence--that ANICO failed to decrease the
COI rates before Dec. 18, 2016, four years before the Plaintiff
filed his initial complaint.
The FAC alleges that ANICO began deducting excessive COI charges on
Jan. 1, 2010. The FAC also alleges that the Plaintiff was unaware
that ANICO was engaging in wrongdoing because (1) only ANICO
possesses its internal expectations as to future mortality
experience on which COI rates are supposed to be based; (2) ANICO
does not disclose this information to policyholders; (3) ANICO's
annual statements concealed its internal, annually updated
mortality expectations; and (4) a reasonable policy holder would
not have known of ANICO's breaches without disclosure by ANICO of
its mortality expectations each year, or the methodology through
which COI rates are being calculated and applied as compared to
those new and improved mortality expectations.
Based on these allegations, the Plaintiff also contends in its
opposition that he did not discover ANICO was deducting excessive
COI charges until he retained counsel in 2020, who in turn had
actuarial experts with access to special NAIC filings that are only
accessible with a NAIC registration and for a fee. "NAIC" stands
for National Association of Insurance Commissioners. Therefore,
according to the Plaintiff, the discovery rule tolls the statute of
limitations on any claims based on excessive deductions that took
place between Jan. 1, 2010, and the fall of 2020, when he
discovered the factual basis for his claims.
The problem with this tolling argument is that the FAC does not
include the Plaintiff's allegation that he first discovered ANICO
was deducting excessive COI charges from his counsel's actuarial
experts in the fall of 2020, Judge Chen notes. Without this key
allegation as to more precise timing, the Court cannot determine
when the statute of limitations began to accrue--i.e., when the
Plaintiff alleges he first learned ANICO was deducting excessive
COI charges--for purposes of tolling the statute of limitations.
Thus, the Court dismisses any claims based on facts that took place
before Dec. 18, 2016, with leave to amend so that the Plaintiff can
add this allegation to plausibly allege that he discovered ANICO
failed to decrease the COI rates in the fall of 2020. The Court
also concludes that the Plaintiff's claims based on deductions of
excessive COI charges that occurred after Dec. 16, 2018, are
timely.
Judge Chen finds that the Plaintiff's allegation that the Policy
requires ANICO to calculate COI rates based solely on a
policyholder's mortality rate can fairly be read to include, by
definition, considering the policyholder's sex, age, and other risk
factors as part of that rate.
Because the Plaintiff has offered an entirely reasonable
interpretation of the phrase "based on," the Court cannot determine
at the pleadings stage that the Plaintiff's reading of the Policy
is implausible, let alone incorrect, as a matter of law.
Accordingly, the Court denies ANICO's motion to dismiss the
Plaintiff's FAC for failure to state a claim pursuant to Rule
12(b)(6).
Conclusion
For these reasons, the Court denies ANICO's motion to transfer.
The Court also grants in part and denies in part ANICO's motion to
dismiss as follows: (1) claims based on facts that occurred before
Dec. 18, 2016, are dismissed with leave to amend; (2) claims based
on facts that occurred after Dec. 18, 2016, are not dismissed. The
Plaintiff will have 30 days from the date of this order to amend
the complaint.
The Order disposes of Docket Nos. 39 and 43.
A full-text copy of the Court's Order dated Aug. 30, 2021, is
available at https://tinyurl.com/czvz3vr4 from Leagle.com.
AMERICAN SECURITY: Court Dismisses Forrester Class Suit
-------------------------------------------------------
In the class action lawsuit captioned as MARSHA FORRESTER v.
AMERICAN SECURITY AND PROTECTION SERVICE LLC, and F. MICHAEL JONES,
Case No. 5:20-cv-00204-TBR (W.D. Ky.), the Hon. Judge Thomas B.
Russell entered an order that:
1. The Defendant F. Michael Jones's motion to dismiss is
granted.
2. The Defendant American Security and Protection Service
LLC's motion to dismiss is granted.
3. The Plaintiff's Request to Amend found in Plaintiff's
Opposition, is denied.
4. The Plaintiff's Motion for Conditional Certification and
Notice to Potential Plaintiffs, is denied.
ASPS is a premier private security company.
A copy of the Court's order dated Sept. 9, 2021 is available from
PacerMonitor.com at https://bit.ly/395I6G6 at no extra charge.[CC]
AMERICANO GONZO: Faces Sachs Suit Over Illegal Tip Pooling
----------------------------------------------------------
The case, SAMUEL SACHS, on behalf of himself and all others
similarly situated, Plaintiffs v. AMERICAN GONZO FOOD CO., LLC, a
California Limited Liability Company and DOES 1 through 25,
inclusive, Defendants, Case No. 21SMCV01464 (Cal. Sup. Ct.,
September 2, 2021) arises from the Defendants' alleged willful
violations of California Labor Code and the Private Attorneys
General Act.
The Plaintiff has worked for the Defendants as a server at a bar
and restaurant at American Beauty from August 26, 2019 through
April 7, 2021.
The Plaintiff brings this complaint alleging the Defendants of
unlawful conversion of gratuities, illegal taking of gratuities,
unfair competition, violation of Labor Code section 226.7, and
violation of the PAGA. Accordingly, the Defendants have illegally
implemented a mandatory tip pooling system in order distribute tips
to the wait staff in the chain service, and failed to maintain
records of the tips collected and how they were distributed.
Moreover, the Defendants failed to provide the Plaintiff and other
similarly situated employee's meal breaks and to pay them premium
wages for their missed breaks, the Plaintiff contends.
Americano Gonzo Food Co., LLC owns and operates several restaurant
concepts in the Los Angeles area, including Pit Fire Pizza, Superba
Food and Bread and American Beauty. [BN]
The Plaintiff is represented by:
Troy C. Skinner, Esq.
SKINNER LAW CORPORATION
333 Washington Blvd #363
Marina Del Rey, CA 90292
Tel: (310) 295-2549
E-mail: Troy@Skinnerlawcorp.com
ANHEUSER-BUSCH INBEV: Read Sues Over Seltzer's Agave Content Label
------------------------------------------------------------------
REBECCA READ, individually and on behalf of all others similarly
situated, Plaintiff v. ANHEUSER-BUSCH INBEV WORLDWIDE INC.,
Defendant, Case No. 1:21-cv-01261-JES-JEH (C.D. Ill., September 11,
2021) is a class action against the Defendant for breaches of
express warranty, implied warranty of merchantability and Magnuson
Moss Warranty Act, negligent misrepresentation, fraud, unjust
enrichment, and violations of the Illinois Consumer Fraud and
Deceptive Business Practices Act and State Consumer Fraud Acts.
According to the complaint, the Defendant is engaged in false,
deceptive, and misleading advertising, labeling, and marketing of
Agave Spiked Seltzer under the Cacti brand. The Defendant
represents the product with the statement "Made with 100% Premium
Blue Agave from Mexico and Natural Flavors for a Refreshing and
Bold Taste." The representation is misleading because they give
consumers the impression it contains a more valued type of agave
ingredients than it does. Consumers, including the Plaintiff, did
not expect the product to contain agave sweetener, because it was
not labeled as "Agave Sweetened Spiked Seltzer." Had the Plaintiff
and Class members known the truth, they would not have bought the
product or would have paid less for it.
Anheuser-Busch Inbev Worldwide Inc. is an alcoholic beverage
company, with its principal place of business in Saint Louis,
Missouri. [BN]
The Plaintiff is represented by:
Spencer Sheehan, Esq.
SHEEHAN & ASSOCIATES, P.C.
60 Cuttermill Rd., Ste. 409
Great Neck, NY 11021
Telephone: (516) 268-7080
E-mail: spencer@spencersheehan.com
APPLE INC: Court Extends Case Schedule in Tabak Class Suit
----------------------------------------------------------
In the class action lawsuit captioned as LISA TABAK, DE'JHONTAI
BANKS, DAVID DANON, BRIANNA CASTELLI, MATTHEW WHITE, KELLY
CAMELO-CENICOLA, NESTOR TRUJILLO, and CHRISTINE CLEMENCE, on behalf
of themselves and all others similarly situated, v. APPLE INC.,
Case No. 4:19-cv-02455-JST (N.D. Cal.), the Hon. Judge Jon S. Tigar
entered an order extending case schedule as follows:
Event Previous New Deadline
Deadline
-- Deadline to complete Oct. 19, 2021 April 19, 2022
private mediation:
-- Plaintiffs' Motion for Nov. 18, 2021 May 20, 2022
Class Certification due:
-- Defendant's Opposition Jan. 13, 2022 July 19, 2022
to Motion for Class
Certification due:
-- Plaintiffs' Reply in Feb. 24, 2022 Sept. 2, 2022
Support of Motion
for Class Certification
due:
Apple Inc. is an American multinational technology company that
specializes in consumer electronics, computer software, and online
services. Apple is the world's largest technology company by
revenue and, since January 2021, the world's most valuable
company.
A copy of the Court's order dated Sept. 10, 2021 is available from
PacerMonitor.com at https://bit.ly/3CeP6wY at no extra charge.[CC]
The Plaintiffs are represented by:
Gregory F. Coleman, Esq.
Adam A. Edwards, Esq.
William A. Ladnier, Esq.
MILBERG COLEMAN BRYSON
PHILLIPS GROSSMAN, PLLC
First Horizon Plaza
800 S. Gay Street, Suite 1100
Knoxville, TN 37929
Telephone: (865) 247-0080
Facsimile: (865) 522-0049
- and -
Hassan A. Zavareei, Esq.
Andrea R. Gold, Esq.
Annick Persinger, Esq.
Allison Parr, Esq.
TYCKO & ZAVAREEI LLP
1828 L Street, NW, Suite 1000
Washington, DC 20036
Telephone: (202) 973-0900
Facsimile: (202) 973-0950
E-mail: apersinger@tzlegal.com
hzavareei@tzlegal.com
agold@tzlegal.com
aparr@tzlegal.com
The Defendant is represented by:
Arturo J. Gonzalez, Esq.
Penelope A. Preovolos, Esq.
Alexis A. Amezcua, Esq.
Camila A. Tapernoux, Esq.
MORRISON & FOERSTER LLP
425 Market Street
San Francisco, California 94105-2482
Telephone: (415) 268-7000
Facsimile: (415) 268-7522
E-mail: agonzalez@mofo.com
ppreovolos@mofo.com
aamezcua@mofo.com
ctapernoux@mofo.com
APPLE INC: Judge Readmits Part of Amended Siri Class Action Lawsuit
-------------------------------------------------------------------
Abraham Jewett, writing for Top Class Actions, reports that a
federal judge in California has readmitted part of an amended class
action lawsuit filed against Apple alleging its Siri
voice-activation devices violated the privacy of consumers by
improperly recording, storing, and sharing private conversations.
U.S. District Judge Jeffrey S. White had previously dismissed the
class action lawsuit after ruling the plaintiffs failed to allege
that they themselves had sustained economic injury or suffered from
an accidental Siri voice activation.
Apple argued that it did not intentionally intercept any
conversations. The tech giants also contended that users provide
consent because the device alerts them if it is accidentally
triggered. Further, plaintiffs did not properly plead a privacy
violation under the California Constitution, according to the
company.
Consumers Claim Ad Targeting After Apple Siri Eavesdropping
Lead plaintiff Fumiko Lopez's revised class action lawsuit adds
factual allegations about his use of Apple Siri voice activation
devices, including that he allegedly received targeted
advertisements based on private conversations he had near a Siri
device.
Another plaintiff, John Pappas, alleges he received targeted
advertisements for pharmaceutical drugs after he talked to his
physician in the presence of an Apple Siri device. Plaintiffs
Lishomwa Henry and David Yacubian, meanwhile, both allege they
observed Siri devices accidentally activate, according to the
order.
"On balance, the Court finds that these allegations plausibly show
that Plaintiffs' private communications were intercepted," states
White's order issued on Sept. 2.
White said while Apple places blame on the plaintiffs for not
alleging the specific contents of their communications, the fact
they were made in a private setting, despite the presence of a Siri
device, is enough to warrant that there should be a reasonable
expectation of privacy.
The targeted advertising claims were also plausible, White says.
"The complaint plausibly alleges that targeted advertising arose
from Siri interception, rather than another commercial auditory
interception device," states White's order.
White noted plaintiffs still had not alleged economic injury and
thus dismissed that part of the Apple Siri class action lawsuit.
Lopez now has 20 days to file another amended class action
lawsuit.
A similar class action lawsuit was filed this month against Amazon
alleging the company uses its Amazon Alexa devices to improperly
capture and store the biometric data of its users.
The plaintiffs are represented by Mark N. Todzo and Eric S. Somers
of Lexington Law Group, Vincent Briganti, Christian Levis, and
Andrea Farah of Lowey Dannenberg PC, Joseph P. Guglielmo and Erin
Green Comite of Scott & Scott Attorneys At Law LLP, and E. Kirk
Wood of the Wood Law Firm.
The Apple Siri Class Action Lawsuit is Lopez v. Apple, Inc., Case
No. 4:19-cv-04577, in the U.S. District Court for the Northern
District of California. [GN]
ASHFORD INC: Discovery Ongoing in Class Action Against Subsidiary
-----------------------------------------------------------------
Ashford 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 discovery is ongoing in the class
action suit filed against one of the Company's subsidiaries in The
Superior Court of the State of California.
On December 20, 2016, a class action lawsuit was filed against one
of the Company's subsidiaries in The Superior Court of the State of
California in and for the County of Contra Costa alleging
violations of certain California employment laws.
The court has entered an order granting class certification with
respect to: (i) a statewide class of non-exempt employees who were
allegedly deprived of rest breaks as a result of the subsidiary's
previous written policy requiring employees to stay on premises
during rest breaks; and (ii) a derivative class of non-exempt
former employees who were not paid for allegedly missed breaks upon
separation from employment. Notices to potential class members were
sent out on February 2, 2021.
Potential class members had until April 4, 2021 to opt out of the
class, however, the total number of employees in the class has not
been definitively determined and is the subject of continuing
discovery.
Ashford said, "While we believe it is reasonably possible that we
may incur a loss associated with this litigation, because there
remains uncertainty under California law with respect to a
significant legal issue, discovery relating to class members
continues, and the trial judge retains discretion to award lower
penalties than set forth in the applicable California employment
laws, we do not believe that any potential loss to the Company is
reasonably estimable at this time. As of June 30, 2021, no amounts
have been accrued."
Ashford Inc. is a Delaware corporation formed on April 2, 2014,
subsequently reincorporated in Maryland, that provides asset
management and advisory services to Ashford Hospitality Trust, Inc.
and Ashford Hospitality Prime, Inc.
ATHIRA PHARMA: Wang Consolidated Putative Class Suit Underway
-------------------------------------------------------------
Athira Pharma, 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 class action suit entitled, Wang v. Athira
Pharma, Inc., et al., No. 2:21-cv-00861.
On June 25, 2021, plaintiffs Fan Wang and Hang Gao filed a putative
securities class action lawsuit in the U.S. District Court for the
Western District of Washington against the Company and the
Company's Chief Executive Officer Dr. Leen Kawas, captioned Wang v.
Athira Pharma, Inc., et al., No. 2:21-cv-00861.
Plaintiffs Wang and Gao assert claims under Sections 10(b) and
20(a) of the Securities Exchange Act of 1934 and SEC Rule 10b-5,
alleging that the defendants made materially false and misleading
statements and omitted material adverse facts regarding the
Company's business.
Specifically, the Wang plaintiffs allege that the Company failed to
disclose to investors that certain research conducted by Dr. Kawas
was allegedly tainted by scientific misconduct during her doctoral
work at Washington State University, including the manipulation of
data, and that as a result, the defendants' positive statements
about the Company's business, operations, and prospects were
materially misleading.
The Wang plaintiffs seek unspecified compensatory and punitive
damages, and reasonable costs and expenses, including attorneys'
fees.
That same day, on June 25, 2021, plaintiff Harshdeep Jawandha filed
a putative securities class action lawsuit in the U.S. District
Court for the Western District of Washington against the Company,
Dr. Kawas, the Company's Chief Financial Officer, certain members
of the Company's board of directors at the time of the Company's
initial public offering (IPO), as well as the IPO underwriters,
captioned Jawandha v. Athira Pharma, Inc., et al., No.
2:21-cv-00862.
The Jawandha complaint asserts violations of Sections 11 and 15 of
the Securities Act of 1933, alleging that that the Company's IPO
registration statement was materially false and misleading because
it omitted to state that certain of Dr. Kawas's published doctoral
research papers at Washington State University contained allegedly
improperly altered images, that the research was allegedly
foundational to the Company's efforts to develop treatments for
Alzheimer's disease, and that the defendants' positive statements
about the Company's business, operations, and prospects were
materially misleading.
The plaintiff seeks unspecified compensatory damages, and
reasonable costs and expenses, including attorneys' fees.
Also on June 25, 2021, plaintiffs Timothy Slyne and Tai Slyne filed
a putative securities class action lawsuit in the U.S. District
Court for the Western District of Washington against the Company,
Dr. Kawas, the Company's Chief Financial Officer, and the same
members of the Company's board of directors and underwriters as in
the Jawandha complaint, captioned Slyne v. Athira Pharma, Inc. et
al., No. 2:21-cv-00864.
The Slyne complaint asserts violations of Sections 11 and 15 of the
Securities Act of 1933, alleging that purported issues with Dr.
Kawas's doctoral research at Washington State University should
have been disclosed in the Company's IPO registration statement.
The Slyne plaintiffs seek unspecified compensatory damages,
reasonable costs and expenses, including attorneys' fees, and
injunctive and other equitable relief.
On August 9, 2021, the Honorable Judge Thomas S. Zilly, the
district judge presiding over Wang v. Athira Pharma, Inc., et al.,
No. 2:21-cv-00861, issued an order consolidating the three cases
under that case number and postponing a response from defendants
until after the appointment of a lead plaintiff and the submission
or designation of a consolidated complaint.
Athira said, "The Company cannot predict the outcome of these
suits, and failure by the Company to obtain a favorable resolution
of these suits could have a material adverse effect on its
business, results of operations and financial condition. The
Company's chances of success on the merits are still uncertain and
any possible loss or range of loss cannot be reasonably estimated
and as such the Company has not recorded a liability as of June 30,
2021."
Athira Pharma, Inc. is a late clinical-stage biopharmaceutical
company focused on developing small molecules to restore neuronal
health and stop neurodegeneration. The Company was incorporated as
M3 Biotechnology, Inc. in the state of Washington on March 31, 2011
and reincorporated in the state of Delaware on October 27, 2015. In
April 2019, the Company changed its name to Athira Pharma, Inc. The
company is based in Bothell, Washington.
ATI PHYSICAL: Glancy Prongay Reminds of October 15 Deadline
-----------------------------------------------------------
Glancy Prongay & Murray LLP ("GPM") reminds investors of the
upcoming October 15, 2021 deadline to file a lead plaintiff motion
in the class action filed on behalf of investors who: (a) purchased
ATI Physical Therapy, Inc. ("ATI" or the "Company") (NYSE: ATIP)
f/k/a Fortress Value Acquisition Corp. II ("FVAC") securities
between April 1, 2021 and July 23, 2021, inclusive (the "Class
Period"); 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.
If you suffered a loss on your ATI investments or would like to
inquire about potentially pursuing claims to recover your loss
under the federal securities laws, you can submit your contact
information at
https://www.glancylaw.com/cases/ati-physical-therapy-inc/. You can
also contact Charles H. Linehan, of GPM at 310-201-9150, Toll-Free
at 888-773-9224, or via email at shareholders@glancylaw.com to
learn more about your rights.
ATI is an outpatient physical therapy company. It owns and operates
nearly 900 physical therapy clinics across 25 states.
On June 17, 2021, ATI became public via a business combination with
FVAC ("Business Combination").
On July 26, 2021, before the market opened, ATI reported its
financial results for second quarter 2021, the period in which the
Business Combination was completed. Among other things, ATI
reported that "the acceleration of attrition among [its] therapists
in the second quarter and continuing into the third quarter,
combined with the intensifying competition for clinicians in the
labor market, prevented us from being able to meet the demand we
have and increased our labor costs." Though ATI was implementing
certain remedial actions, the Company reduced its fiscal 2021
forecast due to the foregoing factors.
On this news, the Company's share price fell $3.62, or 43%, to
close at $4.72 per share on July 26, 2021, on unusually heavy
trading volume. The share price continued to decline the next
trading session by as much as 19%. As a result, FVAC investors who
could have voted against the Business Combination and redeemed
their shares at $10.00 per share suffered a loss of $5.28 per
share.
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 failed to disclose to
investors: (1) that ATI was experiencing attrition among its
physical therapists; (2) that ATI faced increasing competition for
clinicians in the labor market; (3) that, as a result of the
foregoing, the Company faced difficulties retaining therapists and
incurred increased labor costs; (4) that, as a result of the labor
shortage, the Company would open fewer new clinics; and (5) 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 ATI securities during the
Class Period and/or held FVAC Class A common stock as of May 24,
2021, you may move the Court no later than October 15, 2021 to
request appointment as lead plaintiff in this putative class action
lawsuit. To be a member of the class action you need not take any
action at this time; you may retain counsel of your choice or take
no action and remain an absent member of the class action. If you
wish to learn more about this class action, or if you have any
questions concerning this announcement or your rights or interests
with respect to the pending class action lawsuit, please contact
Charles Linehan, Esquire, of GPM, 1925 Century Park East, Suite
2100, Los Angeles, California 90067 at 310-201-9150, Toll-Free at
888-773-9224, by email to shareholders@glancylaw.com, or visit our
website at www.glancylaw.com. If you inquire by email please
include your mailing address, telephone number and number of shares
purchased.
This press release may be considered Attorney Advertising in some
jurisdictions under the applicable law and ethical rules.
Contacts
Glancy Prongay & Murray LLP, Los Angeles
Charles Linehan, 310-201-9150 or 888-773-9224
shareholders@glancylaw.com
www.glancylaw.com [GN]
ATTILIO CONSTRUCTION: Underpays Laborer, Echevarria Suit Claims
---------------------------------------------------------------
CRISTOBAL MAXIMO ECHEVARRIA, individually and on behalf of all
others similarly situated, Plaintiff v. "ABC CORPORATION" d/b/a
ATTILIO CONSTRUCTION, name of the corporation being fictitious and
unknown to Plaintiff, ATTILIO CASSETA, as an individual,
Defendants, Case No. 1:21-cv-04959 (E.D.N.Y., September 2, 2021)
brings this collective action complaint against the Defendants to
recover damages for their alleged egregious violations of the Fair
Labor Standards Act and the New York Labor Law.
The Plaintiff was employed by the Defendants as a laborer,
construction worker, and to perform other miscellaneous duties from
in or around June 2019 until in or around July 2020.
The Plaintiff contends that although he worked approximately 69 or
more hours per week during his employment with the Defendants, the
Defendants did not pay him one and one-half times his regular rate
of pay for all hours he worked in excess of 40 per workweek. The
Defendants also failed to keep accurate payroll records, and to
post notices of the minimum wage and overtime wage requirements in
a conspicuous place at the location of their employment as required
by both the FLSA and NYLL, the Plaintiff added.
The Corporate Defendant is a construction company owned by Attilio
Casseta. [BN]
The Plaintiff is represented by:
Roman Avshalumov, Esq.
HELEN F. DALTON & ASSOCIATES, P.C.
80-02 Kew Gardens Road, Suite 601
Kew Gardens, NY 11415
Tel: (718) 263-9591
BAE SYSTEMS: Court Vacates Prelim. Hearing on Cordova's Settlement
------------------------------------------------------------------
In the case, AIMEE CORDOVA, individually and on behalf of other
members of the public similarly situated, Plaintiff v. BAE SYSTEMS
TECHNOLOGY SOLUTIONS & SERVICES, INC.; and DOES 1-10, inclusive,
Defendants, Case No. 20-CV-2425 JLS (MDD) (S.D. Cal.), Judge Janis
L. Sammartino of the U.S. District Court for the Southern District
of California vacated the hearing scheduled for Sept. 9, 2021, on
Plaintiff Cordova's Unopposed Motion for Preliminary Approval of
Class Action Settlement and Notice of Errata regarding the same.
The Judge takes the matter under submission without oral argument
pursuant to Civil Local Rule 7.1(d)(1).
A full-text copy of the Court's Aug. 31, 2021 Order is available at
https://tinyurl.com/kawp764c from Leagle.com.
BANK OF AMERICA: Hong Appeals Case Dismissal Order to 9th Cir.
--------------------------------------------------------------
Plaintiff Sue Hong filed an appeal from a court ruling entered in
her lawsuit styled SUE HONG, on behalf of herself and all others
similarly situated, Plaintiff v. BANK OF AMERICA, N.A.,
individually and as successor in interest, QBE INSURANCE CORP., and
DOES 1-10, Defendants, Case No. 2:20-cv-01667-RSM, in the U.S.
District Court for the Western District of Washington, Seattle.
The Plaintiff filed this putative class action on Oct. 2, 2020, for
(1) Breach of Contract; (2) Violations of the Duty of Good Faith
and Fair Dealing; (3) Negligent Supervision; (4) Breach of
Fiduciary Duty; (5) Violations of Washington Consumer Protection
Act; and (6) Conspiracy against Defendants Bank of America and QBE
in the Superior Court of the State of Washington, King County. The
Plaintiff filed an Amended Class Action Complaint re-asserting the
same six causes of action on Oct. 5, 2020.
On Nov. 12, 2020, the Defendants removed the action from the
Superior Court of the State of Washington, King County, to the
District Court. On Nov. 17, 2020, Judge Barbara J. Rothstein signed
and entered the Parties' stipulation extending the Defendants' time
to respond to the First Amended Complaint to Dec. 2, 2020.
Ms. Hong now seeks a review of the Court's Order and Judgment dated
July 29, 2021, granting Defendants' motions to dismiss and
dismissing the case with prejudice.
The appellate case is captioned as Sue Hong v. Bank of America, NA,
et al., Case No. 21-35742, in the United States Court of Appeals
for the Ninth Circuit, filed on Sep. 1, 2021.[BN]
The briefing schedule in the Appellate Case states that:
-- Appellant Sue Hong Mediation Questionnaire was due September
8, 2021;
-- Appellant Sue Hong opening brief is due on November 3, 2021;
-- Appellees Bank of America, NA, Does, National General
Holdings Corporation and QBE Insurance Corporation answering brief
is due on December 3, 2021; and
-- Appellant's optional reply brief is due 21 days after service
of the answering brief.[BN]
Plaintiff-Appellant SUE HONG, on behalf of herself and all others
similarly situated, is represented by:
Harish Kumar Bharti, Esq.
HARISH BHARTI
6701 37th Ave NW
Seattle, WA 98117
Telephone: (206) 706-6400
E-mail: mail@hbharti.com
- and -
Roger S. Davidheiser, Esq.
FRIEDMAN RUBIN PLLP
1109 1st Avenue, Suite 501
Seattle, WA 98101
Telephone: (206) 501-4446
E-mail: rdavidheiser@friedmanrubin.com
- and -
Reuben D. Nathan, Esq.
NATHAN & ASSOCIATES, APC
2901 West Pacific Coast Highway, Suite 200
Newport Beach, CA 92663
Telephone: (949) 270-2798
E-mail: rnathan@nathanlawpractice.com
Defendants-Appellees BANK OF AMERICA, NA, individually and as
successor-in-interest, is represented by:
Laura N. Coughlin, Esq.
WRIGHT, FINLAY & ZAK, LLP
612 S. Lucile Street, Suite 300
Seattle, WA 98108
Telephone: (206) 691-8663
E-mail: lcoughlin@wrightlegal.net
- and -
Laura A. Stoll, Esq.
GOODWIN PROCTER LLP
601 S. Figueroa Street, 41st Floor
Los Angeles, CA 90017
Telephone: (213) 426-2500
E-mail: lstoll@goodwinlaw.com
- and -
Daniel Francis Shickich, Esq.
OGDEN MURPHY WALLACE PLLC
901 Fifth Avenue, Suite 3500
Seattle, WA 98164
Telephone: (206) 447-7000
E-mail: dshickich@omwlaw.com
BASARI MARKET: Fails to Pay Overtime Wages, Gramajo Suit Claims
---------------------------------------------------------------
ABDULIO IVAN CIFUENTES GRAMAJO, individually and on behalf of all
others similarly situated, Plaintiff v. BASARI MARKET LLC and
AVRAHAM BILGORAY, as individuals, Defendants, Case No.
1:21-cv-04960 (E.D.N.Y., September 2, 2021) is a collective action
complaint brought against the Defendants for their alleged
egregious violations of the Fair Labor Standards Act and the New
York Labor Law.
The Plaintiff was employed by the Defendants as a deli worker, food
preparer, and butcher from in or around January 2020 to in or
around August 2021.
The Plaintiff contends that he and other similarly situated
employees worked more than 40 hours per week. However, the
Defendants failed to pay him and other similarly situated employees
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, as well as spread-of-hours pay at the legally prescribed
minimum wage for each day worked over 10 hours. In addition, the
Defendants allegedly failed to keep accurate payroll records, and
to post notices of the minimum wage and overtime wage requirements
in a conspicuous place at the location of their employment as
required by both the FLSA and NYLL.
Basari Market, LLC operates a supermarket owned and operated by
Abraham Bilgoray. [BN]
The Plaintiff is represented by:
Roman Avshalumov, Esq.
HELEN F. DALTON & ASSOCIATES, P.C.
80-02 Kew Gardens Road, Suite 601
Kew Gardens, NY 11415
Tel: (718) 263-9591
BLUE DIAMOND: November 23 Settlement Claims Filing Deadline Set
---------------------------------------------------------------
Marilyn Moritz and Eddie Latigo, writing for KSAT.com, report that
if you pour Kellogg's Raisin Bran or Frosted Mini Wheats into your
cereal bowl, you may be eligible to claim a little cash. Better
hurry, though. The deadline to file a claim is Sept. 7.
Kellogg's agreed to a $13 million class action lawsuit settlement.
The lawsuit alleged the company labeled certain cereals as heart
healthy or lightly sweetened, yet they contained excessive sugar.
Consumers who bought various Kellogg's Raisin Bran, Smart Start or
Frosted Mini Wheats between Aug. 29, 2012, and May 1, 2020, can
file a claim online.
The estimated average payout is about $16. The company is not
admitting wrongdoing by settling the suit.
If your bought qualifying Blue Diamond Almond Breeze products, you
could get a piece of a $2.6 million class action lawsuit
settlement.
That lawsuit alleged the company misled consumers about the vanilla
flavor.
Consumers who bought certain milks, creamers and alternative
yogurts between April 15, 2014, and May 17, 2021, can file a claim.
Without proof of purchase, the max claim is $5. The deadline to
file online is Nov. 23.
If you bought certain Windex products, you may be able to clean up
some cash, too. It's the result of a $1.3 million class action
settlement between S.C. Johnson and plaintiffs who alleged the
cleaners were falsely labeled as non-toxic.
To be eligible, products had to be purchased between Jan. 1, 2019,
and July 9, 2021. The maximum payout is $10 without proof of
purchase. The deadline to file a claim online is Oct. 29.
And, it's a similar story involving various Method cleaning
products. S.C. Johnson agreed to a $2.25 million dollar settlement
in that class action. Again, the allegations surrounded the
"non-toxic" wording on the label. [GN]
BOILING CRAB: McDougall Suit Seeks to Certify Rule 23 Class
-----------------------------------------------------------
In the class action lawsuit captioned as JOSEPH McDOUGALL and
AUSTIN WALLACE, individually and on behalf of all similarly
situated individuals, v. THE BOILING CRAB VEGAS, LLC, Case No.
2:20-cv-01867-RFB-NJK (D. Nev.), the Plaintiffs ask the Court to
enter an order certifying a class pursuant to Rule 23 of the
Federal Rules of Civil Procedure, defined as:
"All employees of Defendant who have participated in
Defendant's mandatory tip pool as servers, bus-runners,
hosts/hostesses, cashiers, and ToGo employees at Defendant's
restaurant, The Boiling Crab Las Vegas, from March 23, 2018
to October 26, 2020.
The Plaintiffs propose to exclude from the class the following
persons: (1) any judge to whom this action 18 is assigned and the
judge's immediate family; and (2) persons who timely and validly
opt to exclude themselves from the class.
This putative class action seeks to recover funds that were
misappropriated as a result of The Boiling Crab Vegas' use of
illegal tip pools at its bar and restaurant in Las Vegas, Nevada.
Before this lawsuit was filed, Boiling Crab maintained a policy
that required all front-of-house staff to remit their tips from
each shift into a mandatory tip pool, which 9 reallocated those
funds among the entire front-of-house staff who worked the same
shift, including Daily Shift Leads (a/k/a Designated Shift Leads,
Daily Server Leads, Dining Shift Leads, and Leads on Duty).
Because DSLs' primary responsibilities are managerial and
supervisory, these tip pools have been illegal under the Fair Labor
Standards Act (FLSA) since March 23, 2018. Boiling Crab's
misconduct resulted in the unlawful taking of tips from Plaintiffs
and numerous other employees under the FLSA, as well as conversion
and unjust enrichment. To remedy these wrongs efficiently,
Plaintiffs now seek certification of a class action under Rule 23
so that issues related to Plaintiffs' claims for conversion and
unjust enrichment can be resolved on a class-wide basis, the
lawsuit says.
Boiling Crab is a full-service restaurant located in Las Vegas,
Nevada that employs front-of-house workers who serve food and
drinks to customers.
A copy of the Plaintiffs' motion to certify class dated Sept. 9,
2021 is available from PacerMonitor.com at https://bit.ly/3z8Rmns
at no extra charge.[CC]
The Plaintiffs are represented by:
Christoper W. Carson, Esq.
Trent L. Richards, Esq.
SAGEBRUSH LAWYERS
112 S. Water Street, Suite 104
Henderson, Nevada 89015
Telephone: (702) 800-7634
Facsimile: (702) 800-7635
E-mail: ccarson@sagebrushlawyers.com
trichards@sagebrushlawyers.com
- and -
T. Christopher Tuck, Esq.
Robert S. Wood, Esq.
T.A.C. Hargrove, II, Esq.
D. Charles Dukes, II, Esq.
ROGERS, PATRICK, WESTBROOK & BRICKMAN, LLC
1037 Chuck Dawley Blvd., Bldg. A
Mount Pleasant, SC 29464
Telephone: (843) 727-6500
Facsimile: (843) 216-6509
E-mail: ctuck@rpwb.com
bwood@rpwb.com
thargrove@rpwb.com
cdukes@rpwb.com
CALIFORNIA: Cut-off of Discovery in Ashker v. Cate Set for Dec. 15
------------------------------------------------------------------
Magistrate Judge Robert M. Illman of the U.S. District Court for
the Northern District of California, Eureka Division, has set a
Dec. 15, 2021 discovery cut-off date in the lawsuit titled TODD
ASHKER, et al., Plaintiffs v. MATHEW CATE, et al., Defendants, Case
No. 09-cv-05796-CW (RMI) (N.D. Cal.).
Before the Court is a jointly filed letter brief through which the
parties dispute the propriety of certain discovery sought by the
Plaintiffs in support of their forthcoming motion that will argue
that one particular class member's housing placement is the product
of retaliation for participation in this action rather than being
guided by legitimate penological concerns for individual or
institutional security.
Background
The lawsuit is a class action case that became the product of a
comprehensive settlement agreement six years ago, which resulted in
widespread reforms in the policies governing the Defendants'
placement and retention of class members in security housing units.
Thereafter, in January 2019, Judge Wilken referred a discrete
retaliation claim to be heard by Judge Illman. The retaliation
claim was to be advanced, not by the entire class, or even a number
of class members, but by a single class member claiming that his
placement in a particular housing unit was the product of the
Defendant's retaliation against him for his participation in this
case, and that any contentions about the individual's safety and
institutional security were merely pretext.
When the retaliation matter was referred to Judge Illman nearly
three years ago, Judge Wilken ordered the production of certain
discovery as such: "if there are any new determinations or
investigations conducted relating to this class member's placement,
Defendants are hereby ORDERED to produce such records to
Plaintiffs' counsel within twenty-one days of this Order or within
twenty-one days of when such document is created."
Judge Illman notes that this provision of Judge Wilken's order
creates a continuing obligation with which Judge Illman presumes
that the Defendants are in compliance--principally because the
now-pending letter brief contains no complaints in that regard.
Following this, the Plaintiffs twice sought to significantly expand
the scope of discovery underlying their forthcoming retaliation
motion, and Judge Illman granted the overwhelming majority of those
requests for substantially expanded document production as well as
the compelled depositions of various California Department of
Corrections and Rehabilitation (CDCR) officials. Further, in the
2019 discovery order, Judge Illman ordered the parties to "meet and
confer in a good-faith effort to streamline the discovery process
and, no later than Friday, August 30, 2019, submit a joint proposal
regarding the timetable for completion of the discovery consistent
with this order, as well as proposed dates for the subsequent
briefing schedule for the retaliation motion."
No such joint proposal for a timetable to complete discovery, or a
jointly proposed briefing schedule, was ever submitted by the
Parties. Now, nearly three years has elapsed since Judge Wilken
referred the retaliation motion to Judge Illman and the Plaintiffs
still seek more discovery and still contend that establishing a
briefing schedule is premature. Judge Illman disagrees and finds
that the amount of time that has passed since the referral of the
retaliation motion, during which the Parties seem to have been
mired in a seemingly endless discovery process, is unreasonable.
Therefore, Judge Illman will fix an imminent cut-off date for the
discovery process, and Judge Illman will establish a firm briefing
schedule for the retaliation motion.
Discussion
In November 2020, Judge Illman ordered certain depositions and
certain document production in the nature of, "any emails sent or
received by that person to be deposed, as well as any notes taken
or kept by that person that relate to or reference the class member
in question." The Plaintiffs complain that notwithstanding this
order, the Defendants have only produced the emails and notes of
the two pertinent CDCR employees that surround the class-member's
2017 housing placement review.
The Defendants contend that the Plaintiffs are seeking an expansion
of the scope of discovery previously ordered by Judge Illman, and
contend that acceding to the Plaintiffs' demands would be unduly
burdensome. The Defendants proposed a production of such emails
associated with the proposed deposition witnesses, the prison
warden and the correctional officer. The Defendants note that they
proposed this compromise to the Plaintiffs but were rebuffed.
Judge Illman finds this compromise to be reasonable. Accordingly,
to the extent that the Plaintiffs seek the production of emails or
notes beyond the scope of the Defendants' compromise position (to
wit, email spanning 4 months on either side of each DRB review),
that request is denied as overly broad, burdensome, and
disproportional to the needs of the matter at hand, while the
Defendants' request to limit the scope of production for emails and
notes to the time periods they have identified as being associated
with the class-member's housing placement determinations is
granted.
Given that part of the Defendants' reasoning for refusing to
transfer this class-member to other types of housing units is their
concern that doing so would imperil the class-member by exposing
him to the risk of violence from the associates and confederates of
a certain prison gang, the Plaintiffs have asked Judge Illman to
compel the Defendants to inform the Plaintiffs about the details of
any prison units that are not currently housing affiliates and
members of that prison gang--either so they can disclose this
information to the class-member himself or (at least) to be able to
make use of the information in the forthcoming retaliation motion.
Judge Illman holds that the Plaintiffs' justification for needing
such information is dubious at best. However, Judge Illman finds
this approach to be misguided. The Plaintiffs seem to presume that
this Court can--by virtue of the settlement agreement in this
case--usurp the day-to-day management of California's prison system
by making housing decisions that are untethered to the strictures
of the agreement itself. Or, to put it another way, the Plaintiffs
seem to be under the impression that this Court can, in the
abstract, simply overrule CDCR housing decisions whenever it sees
fit.
Judge Illman is persuaded by the Defendants' compelling arguments
about both the irrelevance of this information, as well as the
Defendants' contentions about how producing this information (that
is, listing the prison units, if any, where this particular gang
does not have a foothold) would endanger institutional safety and
security. Thus, for the reasons articulated by the Defendants, the
Plaintiffs' request to compel the production of this information is
denied.
Lastly, two years ago Judge Illman directed the Parties to
streamline the discovery process and submit a joint proposal
regarding the timetable for completion of the discovery, as well as
proposed dates for the subsequent briefing schedule for the
retaliation motion. At a status conference during that same period,
Judge Illman warned the parties that the failure to arrive at a
jointly proposed briefing schedule would result in the Court fixing
its own schedule for briefing the retaliation motion. Because an
unreasonable amount of time has passed since then, the Court will
now direct the Parties to adhere to the schedule.
Accordingly, Judge Illman holds that:
(1) The discovery cut-off date will be Dec. 15, 2021;
(2) If any previously ordered depositions have not been
undertaken by that date, those depositions will be taken,
if at all, no later than Jan. 19, 2022;
(3) Plaintiffs' retaliation motion will be due on or before
March 1, 2022;
(4) Defendants' response in opposition will be due on or
before April 18, 2022;
(5) Plaintiffs' reply brief (if they chose to file one) will
be due no later than May 9, 2022;
(6) All papers filed in this regard will strictly comply with
the page limitations set forth in the court's Local Rules
and no motions for excess pages will be entertained;
(7) Requests for filing Sur-Reply or Sur-Sur-Reply Briefs will
not be entertained, therefore, the Plaintiffs are directed
to refrain from filing evidence with their Reply Brief.
Any evidentiary filings attached to the Reply Brief, or
any otherwise non-conforming briefs will be stricken;
(8) Absent the most extraordinary circumstances, any requests
to alter or amend this schedule will be denied; and
(9) Lastly, counsel for the Parties are reminded of their
professionalism obligations and are herewith expressly
directed to refrain from littering their papers with
scurrilous attacks leveled at the integrity and reputation
of opposing counsel.
Counsel for both sides have been guilty of this in the past,
however, in the currently-pending letter brief, the Plaintiffs'
counsel have, in passing, accused opposing counsel of misleading
the Court. Further, they have also alleged that the Defendants'
counsel have engaged in deception, and falsehoods about the facts
of this case.
Judge Illman reminds counsel of their obligation to maintain an
appropriate degree of decorum in their pleadings. An attorney's
reputation for integrity is the very currency on which the business
of law practice is conducted and Judge Illman is losing patience
with what is becoming a pattern and practice where the lawyers in
this case tangentially accuse one another of such dishonesty in
unrelated contexts and without even the provision of any concrete
proof for such scandalous assertions. Counsel are warned that,
going forward, this sort of bombast will no longer be overlooked.
A full-text copy of the Court's Order dated Aug. 30, 2021, is
available at https://tinyurl.com/4fbs9psf from Leagle.com.
CANOO INC: Putative Class Suits Underway in California
------------------------------------------------------
Canoo 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
putative class action suits in California.
On April 2, 2021 and April 9, 2021, the Company was named as a
defendant in putative class action complaints filed in California
on behalf of individuals who purchased or acquired shares of the
Company's stock during a specified period.
Through the complaint, plaintiffs are seeking, among other things,
compensatory damages.
On June 25, 2021, the Company was named as a nominal defendant in a
stockholder derivative complaint filed in Delaware.
Through the stockholder derivative complaint, the plaintiff is
asserting claims against certain of the Company's current and
former officers and directors and seeking, among other things,
damages.
However, the final determinations of liability arising from these
litigation matters will only be made following comprehensive
investigations and litigation processes.
Canoo Inc. (formerly known as Hennessy Capital Acquisition Corp.
IV) is a Delaware corporation and maintains its principal executive
offices in 19951 Mariner Avenue, Torrance, California. The Company
was formed for the purpose of effecting a business combination with
specific focus on businesses in the industrial, technology and
infrastructure sectors.
CAREATC INC: Class Action Lawsuit Over Alleged Data Breach Pending
------------------------------------------------------------------
Abingon Cole + Ellery disclosed that on August 11, 2021, after a
third-party data breach investigation, CareATC determined that
sensitive, personal information related to employees, patients and
dependents of employees and patients was present in emails
potentially compromised during a data breach. CareATC's data breach
investigation revealed that CareATC's email system was exposed to
unauthorized access from approximately June 18 to June 29, 2021. A
notice of data breach filed with the U.S. Department of Health and
Human Services on August 27, 2021, indicates that 98,774
individuals were affected by the CareATC data breach.
Data potentially exposed by the CareATC data breach may include,
but is not necessarily limited to: name, date of birth, driver's
license number, Social Security number, passport number, financial
account information, health insurance information, medical history
and treatment information, US Alien Registration number, username
and password, and digital/electronic signature.
CareATC has stated that individuals affected by the data breach
will receive a data breach notification letter via regular mail.
More information detailing the CareATC data breach may be found
here: CareATC Notice of Data Privacy Event.
If you believe you are a victim of the CareATC data breach, and
would like to participate in a class action lawsuit regarding this
data breach, please submit your information via the form on this
webpage. This website is not associated with nor authorized by
CareATC or any affiliated companies.[GN]
CASSAVA SCIENCES: Schall Law Firm Reminds of October 26 Deadline
----------------------------------------------------------------
The Schall Law Firm, a national shareholder rights litigation firm,
reminds investors of a class action lawsuit against Cassava
Sciences, Inc. ("Cassava" or "the Company") (NASDAQ: SAVA) for
violations of Sections 10(b) and 20(a) of the Securities Exchange
Act of 1934 and Rule 10b-5 promulgated thereunder by the U.S.
Securities and Exchange Commission.
Investors who purchased the Company's securities between September
14, 2020 and August 27, 2021, inclusive (the "Class Period"), are
encouraged to contact the firm before October 26, 2021.
We also encourage you to contact Brian Schall of the Schall Law
Firm, 2049 Century Park East, Suite 2460, Los Angeles, CA 90067, at
310-301-3335, to discuss your rights free of charge. You can also
reach us through the firm's website at www.schallfirm.com, or by
email at brian@schallfirm.com.
The class, in this case, has not yet been certified, and until
certification occurs, you are not represented by an attorney. If
you choose to take no action, you can remain an absent class
member.
According to the Complaint, the Company made false and misleading
statements to the market. Cassava overstated the quality and
integrity of scientific data supporting its claims of the efficacy
of simufilam for the treatment of Alzheimer's disease. The
Company's data in support of this efficacy was biased. Based on
these facts, the Company's public statements were false and
materially misleading throughout the class period. When the market
learned the truth about Cassava, investors suffered damages.
Join the case to recover your losses.
The Schall Law Firm represents investors around the world and
specializes in securities class action lawsuits and shareholder
rights litigation.
This press release may be considered Attorney Advertising in some
jurisdictions under the applicable law and rules of ethics.
CONTACT:
The Schall Law Firm
Brian Schall, Esq.,
www.schallfirm.com
Office: 310-301-3335
info@schallfirm.com [GN]
CHATHAM-KENT, ON: Sharon Strosberg Retained to Commence Class Suit
------------------------------------------------------------------
Doug Schmidt, writing for Windsor Star, reports that negligence on
the part of the local municipality and the province is to blame for
a massive explosion that levelled buildings in downtown Wheatley on
Aug. 26, a Windsor law firm alleges.
"We've been retained by a number of individuals to commence a
class-action lawsuit," Sharon Strosberg of Strosberg Sasso Sutts
LLP told the Star on Sept. 7. Since giving notice to the
Municipality of Chatham-Kent and the Ontario government on Sept. 3,
she said "many, many more people have contacted us."
Notifying the lawsuit targets is just the first step. The Windsor
law firm is known for class-action suits that make news headlines.
Strosberg said "the damages continue" so that it's too early to
estimate how much compensation might be sought for those eventually
represented in the claim.
The explosion less than two weeks ago came within hours of gas
monitoring alarms being triggered and businesses and homes being
evacuated. Two buildings were levelled, dozens more were damaged
and 20 people were injured, three of them seriously. There had been
previous states of emergency declared in June and July after gas
monitors in the same area detected harmful hydrogen sulphide
levels.
Provincial officials, including technical experts, are
investigating, but more than 300 residents who tuned in to a
virtual town hall on the weekend were told the source of the gas
leak is still unknown. Leaky gas wells, some drilled more than a
century ago and abandoned, are suspected.
"Insurance typically wouldn't cover all the losses," said
Strosberg, citing policy deductibles and compensation limits
covering residential and commercial properties. Some workplaces
don't have loss-of-business insurance, tenants may have no
insurance, and some workers may no longer have a job.
At the Sept. 4 virtual town hall -- which can be viewed on the
municipality's website -- Chatham-Kent Fire and Emergency Services
Chief Chris Case said gas is currently not being detected in the
area of the blast.
Chatham-Kent CAO Don Shropshire said it was still unknown who will
pick up the recovery costs and whether that might include
government, insurance or private property owners. "Quite frankly,
we don't know," he said.
A reception centre at the Wheatley Arena remains open from 10 a.m.
to 2 p.m. daily. Evacuees can call 519-351-8573 during office hours
and ask to speak to a Wheatley crisis case manager. Residents who
need information after hours can call 519-350-2956.
Wheatley, a town of about 3,000 people, is located on Lake Erie
east of Leamington.
Among the intended defendants in the Strosberg Sasso Sutts lawsuit
are the Chatham-Kent Police Services and Ontario's Minister of
Northern Development, Mines, Natural Resources and Forestry. The
proposed action seeks compensation for "general damages, lost use
of office or residential space, lost income, expenses incurred for
alternate accommodation, office space, replacement or cleaning of
damaged items, physical and emotional injury, damage to property,
relocation and other expenses."
The law firm urges those affected by the explosion "to keep track
of all of your out of pocket expenses that you incur." [GN]
CHICAGO, IL: Faces Class Action Over "Stop and Frisk" Practices
---------------------------------------------------------------
Cheyanne M. Daniels, writing for Chicago Sun Times, reports that it
was a night like any other.
At least, that's what Rashawn Lindsey thought as he walked home
with his friend in Chicago after an evening out at his cousin's in
April 2015.
Lindsey, 18 at the time, didn't see the flashing blue and red
lights approaching behind them.
Not until his friend shouted his name. The first thing Lindsey saw
when he turned around was a police officer pointing a Taser in his
direction.
"Hands up!" The officer shouted. Lindsey complied and was
handcuffed next to his friend.
The officer began going through their pockets and demanded to know
if either had marijuana on them. They didn't.
"I felt like a criminal," Lindsey, now 24, said. "They had no
reason to stop us. We were just walking. The problem was it was at
night and we got our skin."
Attorneys at Romanucci & Blandin, LLC and Hart McLaughlin &
Eldridge, LLC allege Lindsey's "stop and frisk" was a violation of
his Fourth Amendment rights.
Now, Lindsey is one of 2 million people involved in a class-action
lawsuit certified by Judge Andrea Wood on Aug. 31.
According to the lawsuit, the Chicago Police Department's stop and
frisk practice targeted young and middle-aged minorities without
the required "reasonable suspicion" that a crime has been or is
about to happen.
The lawsuit alleges that in 2014, more than 715,000 stops were
conducted. Seventy-one percent of those stops happened to Black
residents and 17% to Hispanic residents, according to the lawsuit.
But there were no recoveries of illicit contraband, according to
attorney Antonio Romanucci.
"The significance of stop and frisk is a slow drip of community
erosion, which leads to the horrific mistrust between citizens and
police, especially those of color," said Romanucci.
With the class action certified, Romanucci said there is a
possibility of a trial, although they would prefer an agreement of
change be manufactured through talks with the mayor and CPD.
"The Chicago Police Department creates great policies and then
doesn't train on them," Romanucci said. "We have this culture of
creating policies but then letting police officers act with
impunity, and that's why we get in trouble."
Attorney Steven Hart said the judge has asked the city if it would
be interested in seeking a compromise resolution.
For Lindsey, the damage is done. Not only does he have a record
that falsely lists him as a Gangster Disciple -- the reason behind
the 2015 stop -- but he no longer trusts police officers.
"I notice any car. I can tell if they're police," Lindsey said.
"They could be sitting in a speed trap or just rolling by and the
lights come on. I'm looking back to see what's going on, because
I'm not trying to get stopped again." [GN]
CHICO'S FAS: Hernandez Labor Suit Removed to C.D. California
------------------------------------------------------------
The case styled MARGARITA HERNANDEZ, individually and on behalf of
all others similarly situated v. CHICO'S FAS, INC.; CHICO'S RETAIL
OPERATIONS, INC.; SOMA INTIMATES, LLC; WHITE HOUSE BLACK MARKET,
INC. and DOES 1 through 20, inclusive, Case No.
30-2021-01214829-CU-OE-CXC, was removed from the Superior Court of
the State of California County of Orange to the U.S. District Court
for the Central District of California on September 10, 2021.
The Clerk of Court for the Central District of California assigned
Case No. 8:21-cv-01486 to the proceeding.
The case arises from the Defendants' alleged violations of the
California Labor Code and the California Business and Professions
Code including failure to pay minimum wages, failure to pay
overtime wages, failure to provide meal periods, failure to permit
rest breaks, failure to reimburse all business expenses, failure to
provide accurate itemized wage statements, forced patronage,
failure to timely pay all wages due upon separation of employment,
and unfair business practices.
Chico's FAS, Inc. is an American women's clothing and accessories
retailer, headquartered in Fort Myers, Florida.
Chico's Retail Operations, Inc. is an American women's clothing and
accessories retailer, headquartered in Fort Myers, Florida.
Soma Intimates, LLC is a clothing business located in Fort Myers,
Florida.
White House Black Market, Inc. is an American women's clothing
retailer, headquartered in Fort Myers, Florida. [BN]
The Defendants are represented by:
Jessica R. Perry, Esq.
Julia C. Riechert, Esq.
ORRICK, HERRINGTON & SUTCLIFFE LLP
1000 Marsh Road
Menlo Park, CA 94025
Telephone: (650) 614-7400
Facsimile: (650) 614-7401
E-mail: jperry@orrick.com
jriechert@orrick.com
- and –
Mariam Bicknell, Esq.
ORRICK, HERRINGTON & SUTCLIFFE LLP
2050 Main Street, Suite 1100
Irvine, CA 92614
Telephone: (949) 567-6700
Facsimile: (949) 567-6710
E-mail: mbicknell@orrick.com
COSTCO WHOLESALE: Case Scheduling Deadlines in Corker Suit Extended
-------------------------------------------------------------------
In the class action lawsuit captioned as BRUCE CORKER d/b/a RANCHO
ALOHA; et al., v. COSTCO WHOLESALE CORPORATION, a Washington
corporation; et al., Case No. 2:19-cv-00290-RSL (W.D. Wash.), the
Hon. Judge Robert S. Lasnik entered an order granting the joint
motion for extension of case scheduling deadlines and trial dates
by 90 days.
The case schedule, with dates adjusted for weekends as necessary,
is amended as follows:
Event Deadline
-- TRIAL DATE March 6, 2023
-- Deadline for filing motion to Sept. 28, 2021
amend pleadings
-- Class certification motion Nov. 18, 2021
must be filed by
-- Class certification opposition Dec. 13, 2021
must be filed by
-- Class certification reply Dec. 23, 2021
must be filed by
-- Fact discovery completed by March 11, 2022
-- Reports from expert witnesses April 13, 2022
under FRCP 26(a)(2) due
-- Rebuttal reports from expert May 25, 2022
witnesses due
-- Reply reports from expert June 22, 2022
witnesses due
-- Expert discovery completed by July 20, 2022
-- Settlement conference held no July 27, 2022
later than
-- All dispositive motions Aug. 10, 2022
must be filed by and noted
on the motion calendar no later
than the fourth Friday thereafter
-- All motions in limine must be Jan. 19, 2023
filed by and noted on the
motion calendar no earlier than
the second Friday thereafter
-- Agreed pretrial order due Jan 27, 2023
-- Trial briefs, proposed voir dire Feb. 20, 2023
questions, proposed jury
instructions, and trial exhibits due
Costco is an American multinational corporation which operates a
chain of membership-only big-box retail stores. As of 2020, Costco
was the fifth largest retailer in the world, and the world's
largest retailer of choice and prime beef, organic foods,
rotisserie chicken, and wine as of 2016.
A copy of the Court's order dated Sept. 7, 2021 is available from
PacerMonitor.com at https://bit.ly/3hwwZKV at no extra charge.[CC]
CUSHMAN & WAKEFIELD: Settlement in Dixon Suit Wins Initial Approval
-------------------------------------------------------------------
The U.S. District Court for the Northern District of California
grants the motion for preliminary approval of the parties' global
settlement in the lawsuit styled DIMITRI DIXON and RYAN SELTZ,
individually, and on behalf of all others similarly situated,
Plaintiffs v. CUSHMAN & WAKEFIELD WESTERN, INC., et al.,
Defendants, Case No. 18-cv-05813-JSC (N.D. Cal.).
In the wage and hour lawsuit, the Plaintiffs allege that Cushman &
Wakefield, unlawfully denied appraiser and senior appraiser
employees guaranteed wage and overtime compensation due to their
misclassification as exempt employees under California wage and
hour laws, and the Fair Labor Standards Act ("FLSA"), 29 U.S.C.
Sections 201, et seq.
The parties in Dixon have reached a global settlement, which
resolves three cases that are being combined into one amended
complaint in the instant case for settlement purposes: (1) Dixon v.
Cushman & Wakefield Western, Inc., Case No. 3:18-cv-05813-JSC (N.D.
Cal.) ("Dixon I"); (2) Dixon v. Cushman & Wakefield, Inc., Case No.
3:20-cv-07001-JSC (N.D. Cal.) ("Dixon II"); and (3) Seltz v.
Cushman & Wakefield, Inc., Case No. 1:18-cv-02092-BAH (D. D.C.)
("Seltz").
Background
Cushman & Wakefield is a commercial real estate services company.
Cushman & Wakefield is the parent corporation of Defendants Cushman
& Wakefield Western and Cushman & Wakefield DC (collectively
"Cushman"), and together they employ Appraisers (including Junior
Appraisers and Senior Appraisers) like the Plaintiffs.
Plaintiff Dimitri Dixon resides in Tustin, California and was
employed as an Appraiser Trainee by Cushman and worked in that
capacity from September 2007 to Dec. 10, 2018. Plaintiff Ryan Seltz
resided in Washington, D.C., during his employment as an Appraiser
with Cushman from May 2017 to October 2017.
Ms. Dixon began working for Cushman in September 2017. As an
Appraiser Trainee, her duties "included appraising the value of
real estate investments, researching property sales, listings, and
rentals, constructing financial models, researching financial
information, preparing appraisals for firm clients, and inspecting
property." She Dixon worked in several practice areas during her
employment with Cushman's Valuation Advisory Group. Although Dixon
had an Appraiser Trainee license, she repeatedly sought a
state-certified appraisal license during her tenure with Cushman.
Ms. Dixon was compensated through a "recoverable draw" scheme which
operated as follows: At the beginning of each year of her
employment, Plaintiff Dixon was required to sign a standard
promissory note with C&W and C&W Western, where she agreed to pay
C&W and C&W Western the balance of a fixed sum of money equal to
her annual compensation. Each employee then receives a bi-monthly
draw against this obligation, which is the sole basis of
compensation. Such draw payments constitute advancements to
Plaintiff Dixon, which the Plaintiff owes to C&W and C&W Western in
the form of debt. The promissory note allows C&W and C&W Western,
among other things, to recoup the entire balance of the advanced
sum at any time, including after the employee-employer relationship
terminates.
The Appraisers are assigned to projects, which generate fees and
these fees are intended, at least in part, to cover their bimonthly
draw payments and any outstanding debt obligations. However, a
portion of these fees are "set aside for C&W and C&W Western to
account for and offset various accrued expenses and costs,
including referral fees, supervisory offsets and other
miscellaneous costs." Dixon alleges that beginning around June 2013
her fees were significantly reduced due to "supervisory offsets."
On a monthly basis, the draw payments are deducted from the fees
collected with positive amounts paid to the employee and negative
amounts carried forward as a debt owed to Cushman. Dixon
consistently carried forward a deficient while working for Cushman.
In 2017, Cushman's promissory note against Dixon was $54,000--which
was equal to her bi-monthly draw payments throughout the year. By
December 2017, Dixon was only receiving fifty percent of the fees
generated and alerted her supervisors that the fee split (with the
supervisor fees) precluded her from satisfying her outstanding debt
obligations.
In May 2018, Dixon was advised that her recoverable draw
compensation would be reduced from $54,000 to $45,760 because she
had not performed enough work to settle the deficit owed. Dixon
spoke to her supervisor who advised her that Cushman did not have
work that she could perform. In June, her draw payments stopped. In
April 2019, Dixon was notified of her termination effective
December 2018. Cushman alleged that she owed a draw balance of more
than $15,000 and demanded repayment.
During the class period, Dixon regularly worked more than 8 hours a
day and more than 40 hours per week, but was not paid for her
excess work. She was also not provided meal and rest periods,
accurate itemized wage statements, or all wages due at the time of
termination.
During the time Plaintiff Seltz worked as an Appraiser in
Washington, D.C., he regularly worked more than 40 hours per week
without being paid overtime.
The Settlement Agreement
Following settlement, the Plaintiffs filed a Second Amended
Complaint which added Plaintiff Ryan Seltz to Dixon I, added
Cushman and Wakefield, Inc. and Cushman and Wakefield of
Washington, DC, Inc. as Defendants, and amended the class
definition to include Junior Appraisers in California and the
collective definition to include Junior Appraisers and Appraisers
who worked outside of California.
Pursuant to 29 U.S.C. Section 216, the Plaintiffs seek to prosecute
the FLSA claims as a collective action on behalf of two groups of
Appraisers. Conditional certification of these collectives was
granted in November 2020.
Plaintiff Dixon represents the following collective of Appraisers:
All persons employed by CUSHMAN AND WAKEFIELD WESTERN, INC.
and CUSHMAN AND WAKEFIELD, INC., as Appraisers (including
and Senior Appraisers) assigned to at least one Cushman &
Wakefield office in any state between October 7, 2017
through May 31, 2021 (Dixon Collective).
Plaintiff Seltz represents the following collective of Junior
Appraisers:
All persons employed by CUSHMAN AND WAKEFIELD, INC., and
CUSHMAN AND WAKEFIELD, OF WASHINGTON, DC, INC. as Junior
Appraisers or Associate Appraisers assigned to at least one
Cushman & Wakefield office in any state between October 12,
2016 through September 9, 2019 (Seltz Collective).
Plaintiff Dixon seeks to represent a Rule 23 class of the
following:
All persons employed in California by CUSHMAN AND WAKEFIELD
WESTERN, INC., and CUSHMAN AND WAKEFIELD, INC., as an
Appraiser (including Junior Appraisers and Senior
Appraisers) assigned to at least one Cushman & Wakefield
office between August 14, 2014 through May 31, 2021
(California Class Action Members).
Payment Terms
The $4.9 million common fund will be allocated as follows: Up to
approximately $3,134,666.67 (Net Settlement Fund,) to be used to
pay individual settlement awards for each participating settlement
class member under the following formula:
a. One point for each Non-California Opt-in Eligible Plaintiff
(i.e. individuals who are eligible to opt into the FLSA
claims and received a notice of the collective actions
prior to the settlement but chose not to opt-in) workweek;
b. Two points for each Seltz Opt-in Plaintiff (i.e.
individuals who opted into the Seltz FLSA claim) and Dixon
II Opt-in Plaintiff (i.e. individuals who opted into the
Dixon II FLSA claim) workweek;
c. Three points for each California Class Member (i.e.
individuals who worked for Defendants in California but did
not opt into the Dixon I FLSA action) workweek; and
d. Four points for each Dixon I Opt-in Plaintiff (i.e.
individuals who both worked in California and opted into
the Dixon I FLSA action) workweek.
Each California Class Member's individual payment will be allocated
one-third to wages, two-thirds to non-wages, and all other
Participating Claimants' individual payments will be allocated half
to wages and half to non-wages. All California Class Members and
Dixon II and Seltz Opt-in Plaintiffs will be mailed a check (with
no claim forms required) except those California Class Members who
affirmatively opt out. Non-California Opt-in Eligible Plaintiffs
will receive a claim form with their notice of settlement.
The Defendants will not be responsible for paying the amount of the
Net Settlement Fund equal to the combined Individual Payment
Amounts for the Non-California Opt-in Eligible Plaintiffs who do
not opt into the settlement.
Any uncashed checks 180 days after the initial mailing will be
voided and distributed as follows:
a. California Class Members' uncashed checks will be sent to
the Controller of the State of California in the name of
the California Class Member and held under the Unclaimed
Property Law;
b. Uncashed checks by Non-California Opt-in Eligible
Plaintiffs who timely submitted consent to join forms will
be sent to a cy pres beneficiary mutually agreed upon by
the Parties and approved by the Court; and
c. Uncashed checks by Dixon II Opt-in Plaintiffs and Seltz
Opt-in Plaintiffs will be deposited into Plaintiffs'
Counsel's client trust account and held until the Plaintiff
can be located.
$20,000 will be paid to the California Labor Agency (LWDA) for the
State of California's share of the $26,666.67 allocation of the
fund for PAGA penalties. 25% of the PAGA allocation ($26,666.67),
equal to $6,666.67, will be split pro rata among California Class
Members, who worked on or after Aug. 14, 2017.
Service awards will be paid to the Named Plaintiffs ($10,000 each
to Plaintiffs Dixon and Seltz) and Declarants ($2,000 each to
Benjamin Blake, Eric Hix, Katherine Pierno, John Dickerson, Heather
Elliot, and Teresa Simone). Settlement administration costs no
greater than $20,000. The settlement provides for the payment of
one-third of the common fund, or $1,633,333.33, as attorneys' fees;
and reimbursement of actual litigation costs of not more than
$60,000.
Scope of Release
The California Class Members (except any who opt out of the
settlement) will release claims that were asserted or could have
been brought based on the facts alleged in the Second Amended
Complaint related to Defendants' misclassification of California
Class Members as exempt from California and federal overtime laws.
No California Class Members may opt out of the release of PAGA
claims. Opt-ins and Non-California Eligible Opt-ins who submit a
claim form will release claims that were asserted or could have
been brought based on the facts alleged in the Second Amended
Complaint related to the Defendants' misclassification of Opt-in
Plaintiffs and Non-California Eligible Opt-ins as exempt from
federal and state overtime laws. In contrast, Non-California
Eligible Opt-ins who do not opt into the FLSA action do not release
any claims against the Defendants. Both the named Plaintiffs will
sign a general release of claims in exchange for their service
award.
Notice
Within 15 days of preliminary approval, Cushman will provide the
Settlement Administrator with the confidential Class List. Within
14 days after receipt of the Class List, the Settlement
Administrator, CPT, will send out one of three notices by mail or,
if available, email: (1) to California Class Members, a Notice of
Class, Collective, and Representative Action Settlement; (2) to
Non-California Opt-in Eligible Plaintiffs the Notice of Collective
Action Settlement and Opportunity to Join and the Claim Form; and
(3) to the Dixon II and Seltz Opt-in Plaintiffs the Notice of
Collection Action Settlement.
The Settlement Administrator will perform a national change of
address database review prior to mailing. If any Notice is returned
as undeliverable, the Settlement Administrator will promptly notify
the Plaintiffs' Counsel and attempt to locate such employee through
one skip trace and, if a new address is identified, will promptly
mail an additional Notice to such person. In the case of any
employee who is known to be deceased, the Settlement Administrator
will mail the employee's Notice to the legal representative of the
estate.
The Notices will include the dates that the employee worked during
the applicable time periods in the respective positions as
indicated in Cushman's records and the estimated minimum Individual
Payment Amount based on the formula outlined. In addition, the
Notices describe the litigation, the terms of the Settlement, and
the options available according to the type of employee receiving
the Notice with respect to participating in the Settlement. The
Notices also contain information about a website created and
maintained by the Settlement Administrator.
Opt-Outs and Objections
Any California Class Member can object or opt out within 60 days of
the notice mailing. California Class Members, who do not timely opt
out, will be members of the Class for settlement purposes, and will
release the claims asserted in the lawsuit, as well as any claims
that could have been asserted based upon the facts alleged in the
complaint. Class members, who affirmatively opt out, will not
receive a settlement payment, but also will not be subject to any
release of claims.
The Non-California Opt-In Eligible Plaintiffs may either
participate in the Settlement by submitting a Claim Form within 60
days or decline to participate in the Settlement by not submitting
a Claim Form. Non-California Opt-In Eligible Plaintiffs may not
request exclusion or object to the Settlement.
The Dixon II and Seltz Opt-ins have already chosen to participate
in the case, so may not opt out or request exclusion.
Discussion
Class actions must meet the following requirements for
certification: (1) the class is so numerous that joinder of all
members is impracticable; (2) there are questions of law or fact
common to the class; (3) the claims or defenses of the
representative parties are typical of the claims or defenses of the
class; and (4) the representative parties will fairly and
adequately protect the interests of the class, Fed. R. Civ. P.
23(a).
In addition to meeting the requirements of Rule 23(a), a putative
class action must also meet one of the conditions outlined in Rule
23(b)--as relevant here, the condition that "questions of law or
fact common to class members predominate over any questions
affecting only individual members, and that a class action is
superior to other available methods for fairly and efficiently
adjudicating the controversy," Fed. R. Civ. P. 23(b)(3).
Magistrate Judge Jacqueline Scott Corley finds that the Rule 23(a)
factors are satisfied. She adds that there are no predominance or
superiority concerns under Rule 23(b)(3) because the challenged
policies are common to all class members.
Accordingly, the Court concludes that conditional certification of
the class for settlement purposes is proper.
Judge Corley also holds that conditional certification under the
FLSA for settlement purposes is appropriate because two nationwide
collectives have already been conditionally certified (the Seltz
collective covering Junior Appraisers and the Dixon I and II
collectives covering Appraisers and Senior Appraisers in California
(Dixon I) and outside of California (Dixon II)) and notice has been
sent to all those eligible to join the collectives.
The collective for settlement purposes, as reflected in the Second
Amended Complaint, adds to Dixon I Junior Appraisers nationwide and
Appraisers who worked for Cushman outside of California so that the
collective definition in Dixon I includes all members of the
previously certified collectives. In addition, the members of the
proposed settlement collective are similarly situated because they
were employed in similar positions as real estate appraisers and
were subject to the same treatment of Defendants as exempt from the
FLSA's overtime requirements.
Accordingly, the Court grants conditional certification of the FLSA
collective action.
Preliminary Approval of the Settlement Agreement
In determining whether a class action settlement agreement is fair,
adequate, and reasonable to all concerned, courts generally
consider the following factors: (1) the strength of the plaintiff's
case; (2) the risk, expense, complexity, and likely duration of
further litigation; (3) the risk of maintaining class action status
throughout the trial; (4) the amount offered in settlement; (5) the
extent of discovery completed and the stage of the proceedings; (6)
the experience and views of counsel; (7) the presence of a
governmental participant; and (8) the reaction of the class members
of the proposed settlement.
The Court cannot, however, fully assess such factors until the
final approval hearing; thus, "a full fairness analysis is
unnecessary at this stage," Judge Corley opines, citing Alberto v.
GMRI, Inc., 252 F.R.D. 652, 665 (E.D. Cal. 2008).
As such, the Settlement Agreement appears to be the product of
serious, informed, non-collusive negotiations. This factor, thus,
weighs in favor of preliminary approval, Judge Corley holds.
Having reviewed the Plaintiffs' supplemental briefing in the
context of the adequacy of the settlement amount, the Court is
reassured that the Settlement Agreement does not contain obvious
deficiencies.
The Court, however, has concerns regarding the service awards
requested here. First, the $10,000 service award for Plaintiffs
Dixon and Seltz are higher than amounts typically awarded by courts
in this Circuit. Second, the Plaintiffs do not provide any legal
authority for providing service awards to individuals, who
submitted declarations, but were not named plaintiffs.
Judge Corley opines that the citation to Wellens v. Sankyo, No. C
13-00581 WHO (DMR), 2016 WL 8115715, at *4 (N.D. Cal. Feb. 11,
2016), is unavailing as it does not analyze the propriety of a
service award to individuals who only submit declarations. In
considering whether the settlement is fair, the Court looks at,
among other factors, whether it improperly grants preferential
treatment to class representatives or segments of the class.
The Court will defer ruling on the appropriateness of the amount of
the requested service awards until final approval. At this stage,
notwithstanding the Court's concerns, there is no indication that
the service award in general constitutes "preferential treatment"
such that it would defeat preliminary approval.
In sum, Judge Corley holds, the risks and costs of continued
litigation at least balance the benefit of the estimated payout to
class members when the non-monetary relief is considered,
warranting preliminary approval and comment from class members.
Accordingly, consideration of the fairness factors warrants
preliminary approval of the Settlement Agreement.
Class Notice Plan
In response to the Court's concerns, the Plaintiffs submitted
Revised Notices. Judge Corley holds that these Revised Notices
comply with the notice requirements under Rule 23(c).
In sum, these procedures appear sufficient to ensure that class
members receive adequate notice of the settlement and an
opportunity to opt-out or object, Judge Corley states. Accordingly,
the Revised Notices and notice plan support preliminary approval.
Attorneys' Fees
As previously discussed, the Settlement Agreement provides for a
maximum award of $1,633,333.33 to Class Counsel in fees (one-third
of the Gross Settlement Amount). The Defendants do not oppose this
request. The Plaintiffs' supplemental brief clarifies that if the
Court does not award the full amount, then the difference will be
included in the Net Settlement Amount to be distributed to the
class.
The Plaintiffs contend that this amount will be below their
lodestar, which as of May 2021 was $1,627,990 and is estimated to
total $2,128,050 once all the settlement funds are disbursed. Class
counsel attests that they will provide an updated, detailed
breakdown of their lodestar with their motion for attorneys' fees.
Accordingly, the Plaintiffs will submit a motion for attorneys'
fees, including declarations and detailed billing records so that
the Court may determine an appropriate lodestar figure, and to
allow class members the opportunity to object to the requested
fees.
Costs
The Settlement Agreement provides that the Plaintiffs' counsel may
obtain up to $60,000 in litigation costs, as well as a separate
allocation of $20,000 in settlement administration costs.
The Plaintiffs' counsel is instructed to submit an itemized summary
of each category of costs with its motion for attorneys' fees so
that the Court can determine whether such costs are reasonable
expenses incurred for the benefit of the class.
Conclusion
For the reasons stated, the Court grants preliminary approval of
the class and collective action settlement as follows.
Laura L. Ho, Esq., and Ginger Grimes, Esq., of the law firm of
Goldstein, Borgen, Dardarian & Ho; Justin M. Swartz, Esq., Deirdre
Aaron, Esq., Jahan C. Sagafi, Esq., and Molly J. Frandsen, Esq., of
the law firm Outten & Golden LLP; and Paolo Meireles, Esq., of the
law firm Shavitz Law Group, P.A., are appointed as Class Counsel.
The Notices will be mailed and emailed to class members in
accordance with the notice plan by Sept. 20, 2021. The deadline for
class members to submit a Request for Exclusion will be 60-days
after the initial mailing of the Notice, and no later than Nov. 22,
2021.
The deadline for class members to object to the Settlement
Agreement will be 60-days after the initial mailing of the Notice,
and no later than Nov. 22, 2021. The deadline for Non-California
Opt-In Eligible Plaintiffs to submit claim form will be 60-days
from the date of initial mailing, or 90-days from the date of
initial mailing for remails.
Class Counsel will file a motion for attorneys' fees and costs by
Oct. 25, 2021.
The Plaintiffs will file their Motion for Final Approval by Feb.
24, 2022. The motion will include a copy of the Notices ultimately
sent to the class along with the other information, as available,
suggested by the Northern District of California Procedural
Guidance for Class Action Settlements.
The parties will appear before the Court for a final approval
hearing on March 31, 2022, at 9:00 a.m.
A full-text copy of the Court's Order dated Aug. 30, 2021, is
available at https://tinyurl.com/aezc7na2 from Leagle.com.
DANIMER SCIENTIFIC: Bid to Consolidate New York Class Suits Pending
-------------------------------------------------------------------
Danimer Scientific, 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
consolidate the class action suits in New York, is pending.
On May 14, 2021, a class action complaint was filed by Darryl Keith
Rosencrants in the United States District Court for the Eastern
District of New York, on May 19, 2021 a class action complaint was
filed by Elizabeth and John Skistimas in the United States District
Court for the Eastern District of New York, on May 18, 2021 a class
action complaint was filed by Carlos Caballeros in the United
States District Court for the Middle District of Georgia and on May
18, 2021 a class action complaint was filed by Dennis H. Wilkins
also in the United States District Court for the Middle District of
Georgia.
Each plaintiff or plaintiffs brought the action individually and on
behalf of all others similarly situated against the Company and/or
Stephen E. Croskrey, John A. Dowdy, III, John P. Amboian, Richard
J. Hendrix, Christy Basco, Philip Gregory Calhoun, Gregory Hunt,
Isao Noda and Stuart W. Pratt.
The alleged class varies in each case but covers all persons and
entities other than Defendants who purchased or otherwise acquired
securities of the Company between October 5, 2020 and May 4, 2021.
Plaintiffs are seeking to recover damages caused by Defendants'
alleged violations of the federal securities laws and to pursue
remedies under Sections 10(b) and 20(a) of the 1934 Act, and Rule
10b-5 promulgated thereunder.
The complaints are substantially similar and are each premised upon
various allegations that throughout the Class Period, Defendants
made materially false and misleading statements regarding, among
other things, the Company's business, operations and compliance
policies.
Plaintiffs seek the following remedies: (i) determining that the
lawsuits may be maintained as class actions under Rule 23 of the
Federal Rules of Civil Procedure, (ii) certifying a class
representative, (iii) requiring Defendants to pay damages allegedly
sustained by plaintiffs and the class members by reason of the acts
alleged in the complaints, and (iv) awarding pre-judgment and
post-judgment interest as well as reasonable attorneys' fees,
expert fees and other costs.
On July 29, 2021, the Georgia court transferred the Georgia cases
to New York, motions to consolidate are pending and it is expected
that all four class actions will be consolidated into a single
lawsuit in the Eastern District of New York. When a consolidated
class action complaint is filed, Defendants intend to make a motion
to dismiss.
Danimer Scientific, Inc. is a performance polymer company
specializing in bioplastic replacement for traditional
petroleum-based plastics. The company is based in Bainbridge,
Georgia.
DANSKE BANK: Troutman Pepper Attorneys Discuss Court Ruling
-----------------------------------------------------------
Aurora Cassirer, Esq., Sam Hatcher, Esq., J. Timothy Mast, Esq.,
and Mary Weeks, Esq., of Troutman Pepper, in an article for
JDSupra, report that a recent decision out of the Second Circuit
Court of Appeals sets limits on plaintiffs' ability to transform
regulatory violations into the basis for securities class actions.
The decision further clarifies that issuers do not face liability
for historically accurate statements that later discovered
misconduct renders misleading. Finally, the decision provides
guidance on the heightened pleading standards plaintiffs must
satisfy when bringing claims under Rules 10b-5(a) and (c) and
reaffirms that the different standards under these rules -- as
opposed to the more familiar Rule 10b-5(b) -- do not excuse
plaintiffs from the requirement of pleading misconduct with
specificity.
The case, Plumbers & Steamfitters Local 773 Pension Fund v. Danske
Bank A/S, centered around alleged violations of anti-money
laundering (AML) rules by Danske Bank's Estonian branch. [1] Danske
Bank, Denmark's largest financial institution, acquired the
Estonian Branch in 2006, and shortly thereafter, the branch was
censured by the Estonian Financial Supervisory Authority. At the
same time, the Danish Financial Supervisory Authority approached
Danske Bank about AML issues in the Estonian branch. When Danske
Bank acquired the Estonian branch, it inherited a portfolio of
nonresident customers, which was the source of most of the branch's
AML issues. This group of customers -- based primarily in Russia
and the United Kingdom -- also accounted for a sizable portion of
the branch's profits. In late 2013, a whistleblower in the Estonian
branch emailed supervisors in Copenhagen to report a "near total
process failure" and to accuse branch employees of "knowingly
dealing with criminals." [2] The whistleblower's claims were
substantiated by Danske Bank's internal audit group, and as a
result, Danske Bank started to wind down the Estonian branch's
foreign customer business.
In March 2016, Danish regulators publicly reprimanded and fined
Danske Bank for AML violations in the Estonian branch. In 2017, a
Danish newspaper published an investigation detailing how more than
$20 billion was laundered out of Russia in three years, including
through Danske Bank's Estonian branch. The public revelation of the
AML issues brought on further investigations and bad publicity, and
Danske Bank hired a Danish law firm to handle an internal
investigation. In September 2018, the internal investigation
revealed that the scandal was even larger than initially suspected,
with over $200 billion worth of suspect transactions. Danske Bank's
CEO resigned, and the share price plummeted.
The pension fund brought a class action, seeking to represent
holders of Danske Bank's American Depositary Receipts (ADRs). The
pension fund purchased the ADRs in 2018 after the Estonian branch's
AML issues were known publicly, but before the results of the
internal investigation were released. The pension fund identified
five categories of alleged misstatements and omissions on: (1)
Danske Bank's financial statements; (2) Danske Bank's statements
about its goodwill impairments; (3) statements about the
whistleblower system; (4) corporate governance statements
discussing AML compliance; and (5) Danske Bank's assertion before
the release of the internal investigation that it did not expect
the growing AML scandal to materially impact its financial
position. The district court granted Danske Bank's motion to
dismiss, and the Second Circuit affirmed, agreeing that none of the
five categories of misstatements or omissions were actionable.
The plaintiffs alleged Danske Bank's financial reports were
misleading because its financial statements included profits from
alleged money laundering, and it was misleading for Danske Bank to
release the statements "without simultaneously disclosing what [the
bank] knew about possible money laundering at the [Estonian]
branch." [3] On the first claim, the court found that the
plaintiffs had not pled with particularity any violation of
accounting standards because the financial statements were
historically accurate, and the plaintiffs failed to identify
specific accounting standards that Danske Bank breached. [4] Danske
Bank similarly did not have an obligation to disclose vague
suspicions of AML issues in its financial statements.
"'[D]isclosure is not a rite of confession,' so 'companies do not
have a duty to disclose uncharged, unadjudicated wrongdoing.'" [5]
The court reasoned that, "[o]therwise, every company whose
quarterly financial reports included revenue from transactions that
violated AML regulations could be sued for securities fraud" and
thus overextend the reach of federal securities laws. [6]
In dismissing the plaintiffs' allegations as to statements about
Danske Bank's 2014 goodwill impairment, the court noted that
"almost 39 months intervened" between the impairment and
plaintiffs' ADR purchases. Thus, the court observed, while
determining the materiality of an alleged misstatement is normally
a "fact-specific inquiry," the length of time between the
misstatements and the ADR purchases made it "implausible that the
fine points of a technical accounting exercise conducted back in
2014 'significantly altered the total mix of information'"
available to the plaintiffs at the time of their ADR purchases. [7]
The court relied on similar logic to find that the alleged
misstatements in categories (3) through (5) were too vague and
remote from the plaintiffs' purchases of Danske Bank's ADRs to have
materially altered the information available at the time of their
ADR purchases.
Finally, the plaintiffs also alleged that Danske Bank violated
subsections (a) and (c) of Rule 10b-5 by engaging in deceptive
conduct. While noting that these claims "do not require the
defendant to make a misstatement or omission -- they require only
deceptive conduct" -- the court emphasized that these claims still
require specific pleadings. [8] "Absent some sort of enumeration of
which specific acts constituted an alleged scheme in connection
with the purchase or sale of securities," the plaintiffs' claims
could not move forward. [9] "Money-laundering at a single branch in
Estonia cannot alone establish that Danske Bank itself carried out
a deceptive scheme to defraud investors." [10]
The court's decision provides important guidance to issuers --
especially financial institutions -- about the applicability of
federal securities laws to allegations of misconduct or regulatory
violations. The court emphasized that "historically accurate"
statements do not by themselves support securities claims and are
not rendered actionable simply because violations are later
discovered, so long as the statements were made without knowledge
or intent to mislead investors. Similarly, plaintiffs cannot
sidestep the heightened pleading requirements of the PSLRA by
simply outlining a general scheme of misconduct and then claiming
that such a scheme was intended to defraud investors. The decision
reaffirms the general principle that plaintiffs cannot transform
allegations of regulatory or other legal troubles -- such as the
AML troubles from which Danske Bank suffered -- into securities law
claims without specifically connecting the legal or regulatory
issues to misstatements, omissions, or schemes made with the aim of
defrauding investors.
Troutman Pepper's Securities, Corporate Governance, and D&O Defense
Litigation team remains current on changes in legal and market
conditions so that we can provide the most relevant and timely
counsel available. [GN]
DEARBORN MOTORS: Dismissal of Williams' Class Claims Affirmed
-------------------------------------------------------------
In the lawsuit styled BRIAN WILLIAMS, et al., Plaintiffs-Appellants
v. DEARBORN MOTORS 1, LLC, dba All Pro Nissan of Dearborn,
Defendant-Appellee, Case No. 20-1351 (6th Cir.), the United States
Court of Appeals for the Sixth Circuit affirms the dismissal of the
Plaintiffs' class claims and the grant of judgment on the pleadings
against Plaintiff Williams' individual retaliation claims.
Plaintiffs Brian Williams and Jay Howard appeal from a district
court judgment upholding a class action waiver policy in a
mandatory employment arbitration agreement provided by their former
employer. The Plaintiffs contend that the class waiver violates
their civil rights by depriving them of the ability to pursue
pattern-or-practice employment discrimination claims and by
limiting the scope of relief available in such actions.
Circuit Judge John M. Rogers, writing for the Panel, states that
the Supreme Court has repeatedly affirmed the validity of class
waiver policies under the Federal Arbitration Act and federal labor
laws, including with respect to employment discrimination disputes.
Because the class waiver policy in the case did not violate any
civil rights laws, dismissal of the Plaintiffs' class-based
discrimination claims was proper.
Similarly, Judge Rogers holds, because Williams' refusal to sign
the arbitration agreement did not constitute a protected activity,
he failed to establish a prima facie case for retaliation, and
dismissal of his retaliation claims was also proper.
Background
Brian Williams and Jay Howard are former employees of Defendant
Dearborn Motors 1, LLC, d/b/a All Pro Nissan of Dearborn, a car
dealership located in Dearborn, Michigan. Several months into their
employment, the Defendant advised the Plaintiffs that they were
required to sign an arbitration agreement in order to remain
employed. Williams refused to sign the arbitration agreement and
was fired as a result. Howard did sign the agreement in order to
continue his employment.
Mr. Williams subsequently filed charges with the Equal Employment
Opportunity Commission ("EEOC") alleging that his termination
constituted unlawful retaliation for his refusal to sign the
arbitration agreement, which he contended was a violation of his
legal rights under Title VII of the Civil Rights Act, the Americans
with Disabilities Act ("ADA"), the Equal Pay Act, the Age
Discrimination in Employment Act ("ADEA") and the Genetic
Information Non-Disclosure Act. He also alleged that he experienced
race discrimination in the form of lower compensation and less
desirable placement, and disability discrimination because he was
denied a reasonable accommodation in the form of alternative work
at the dealership.
After investigating, the EEOC determined that there was "reasonable
cause" to believe that Williams' allegations were true "with
respect to himself and a class of harmed parties." After efforts at
conciliation with the Defendant failed, the EEOC issued Williams a
Notice of Right to Sue letter. Around the same time Williams was
fired, Howard complained to the Defendant of race-based
compensation disparities. In the following month he filed race
discrimination charges with the EEOC. The EEOC found "reasonable
cause" that Howard's claims were true and issued a Notice of Right
to Sue letter. Howard was terminated from his employment the
following year and he subsequently amended his original charge to
include charges of unlawful retaliation under Title VII.
The Plaintiffs sought to represent a class of the Defendant's
current and former employees, who were required to sign an
arbitration agreement as a condition of their employment or
continued employment. In addition to the class-based discrimination
claims, Williams raised individual claims for retaliation in
violation of Title VII, the ADEA, and the ADA, based on his
termination for refusing to sign the arbitration agreement. Howard
also raised individual claims for retaliation in violation of Title
VII based on his opposition to the arbitration agreement, race
discrimination due to compensation disparities in violation of
Michigan's Elliott-Larsen Civil Rights Act ("ELCRA"), and
retaliation in violation of ELCRA based on his termination after
having filed EEOC charges.
The Defendant moved to dismiss the class claims and compel
arbitration of Howard's individual claims. The district court
granted the motion in May 2018, three days after the Supreme Court
issued a decision in Epic Systems Corp. v. Lewis, 138 S.Ct. 1612
(2018), in which the Court upheld an arbitration agreement with a
class waiver policy in an action asserting wage and overtime claims
under the Fair Labor Standards Act ("FLSA"). Relying on Epic, the
district court ruled that the class waiver in this case was valid
and enforceable, dismissed the class claims, and ordered that
Howard's remaining claims be sent to arbitration. The Plaintiffs
moved for reconsideration of the court's decision and the court
reaffirmed its prior order.
The parties subsequently filed cross motions for judgment on the
pleadings on Williams' individual retaliation claims. The court
denied the Plaintiffs' motion and granted judgment on the pleadings
in favor of the Defendant, reasoning that Williams failed to allege
a prima facie retaliation claim because his belief that the class
waiver term in the arbitration agreement was unlawful was not
objectively reasonable based on substantial federal caselaw
upholding class waivers in similar cases. The court observed that
Williams' conduct moreover could not qualify as protected activity
under Title VII, the ADA, or the ADEA, because his refusal to sign
the arbitration agreement did not constitute opposition to any
discriminatory act or policy.
The Plaintiffs timely appealed from the district court orders
dismissing their class-based discrimination claims and Williams'
individual retaliation claims. The Defendant-Appellee is not
represented by counsel and has not filed a brief in this appeal.
The Plaintiffs' Appeal
The Plaintiffs make two arguments on appeal. First, they claim that
dismissal of their class-based discrimination claims was improper
because the Defendant's class waiver policy was unlawful under
Title VII, the ADA, and the ADEA (collectively referred to as the
Civil Rights Acts ("Acts")), because the policy limited their right
to pursue certain claims or obtain certain types of relief. Second,
they argue that Williams presented a prima facie case of
retaliation on the theory that his opposition to the mandatory
arbitration agreement constituted protected activity because he
reasonably believed he was opposing a discriminatory policy.
Neither argument warrants reversal, Judge Rogers holds.
Judge Rogers opines that the Plaintiffs failed to state a
cognizable claim to relief with respect to their class-based
discrimination claims, because the claims are precluded by the
Federal Arbitration Act's ("FAA") broad mandate in favor of
upholding arbitration agreements. Consequently, for the Plaintiffs
to prevail on their class claims, they must point to some "contrary
congressional command" showing that the Civil Rights Acts override
the FAA's mandate authorizing class waivers. The Plaintiffs did not
do so here, the Judge points out.
The Plaintiffs' contention that the Civil Rights Acts render class
waivers unenforceable is inconsistent with Supreme Court precedent
directly addressing one of the statutes in question, Judge Rogers
finds. He explains that the Court upheld a class action waiver in
the context of an employment discrimination claim raised under the
ADEA, despite the fact that the statute expressly permits
collective actions, citing Gilmer v. Interstate/Johnson Lane Corp.,
500 U.S. 20, 32 (1991).
Judge Rogers holds that the Plaintiffs offer no argument as to why
the reasoning in Gilmer does not apply with equal force to claims
under Title VII and the ADA. With no express statement barring the
use of class waivers, such policies are enforceable under the FAA
with respect to employment discrimination claims. Judge Rogers also
finds that the Plaintiffs point to no provision in any of the Civil
Rights Acts that overrides the FAA and expressly bars mandatory
individual arbitration of employment discrimination claims.
Moreover, the class claims in this case are barred under the FAA
because they challenge the arbitration agreement solely on the
basis that it required individual arbitration, Judge Rogers holds,
among other things. He points out that the Plaintiffs have not
shown that the class waiver policy is an "unlawful employment
practice" under Title VII, the ADA, or the ADEA, and have failed to
state a cognizable claim to relief.
Plaintiff Williams' Retaliation Claims
Mr. Williams' retaliation claims arising from his refusal to sign
the arbitration agreement also fail, and judgment in favor of the
Defendant was also proper, Judge Rogers holds. The Judge explains
that Williams failed to establish a prima facie case for
retaliation under any of the three Civil Rights Acts, because his
refusal to sign the arbitration agreement did not constitute a
protected activity.
Mr. Williams' opposition to the class waiver did not involve an
employment practice that was discriminatory on one of the bases
protected by the Civil Rights Acts, Judge Rogers finds. His
opposition to the class waiver was based on his belief that it
violated the procedural requirements under the Civil Rights Acts by
depriving him of a method of litigation and type of remedy. Judge
Rogers holds that the refusal to sign did not constitute protected
activity because it was not based on a reasonable belief that he
was opposing allegedly "discriminatory acts."
The complaint presents no allegations that the requirement to sign
the agreement was applied in a discriminatory manner toward a
certain class of individuals, Judge Rogers finds. Thus, Williams'
argument that he opposed a "discriminatory policy" is without
merit. Nor did his refusal to sign qualify as a protest of any
actual or suspected discriminatory policy. Accordingly, Williams'
refusal to sign the arbitration agreement was not a protected
activity in opposition to a discriminatory employment act or
practice, and he failed to establish a prima facie case for
retaliation under Title VII, the ADA, or the ADEA, Judge Rogers
holds.
For these reasons, the Court of Appeals affirms the dismissal of
the Plaintiffs' class claims and the grant of judgment on the
pleadings in favor of the Defendant on Williams' individual
retaliation claims.
A full-text copy of the Court's Opinion dated Aug. 30, 2021, is
available at https://tinyurl.com/678u8ywn from Leagle.com.
DELAWARE NORTH: Morand-Doxzon Bid for Class Status Partly OK'd
--------------------------------------------------------------
In the class action lawsuit captioned as MELISSA MORAND-DOXZON, on
behalf of herself, all others similarly situated, and on behalf of
the general public, v. DELAWARE NORTH COMPANIES SPORTSERVICE, INC;
CALIFORNIA SPORTSERVICE INC.; and DOES 1-100, Case No.
3:20-cv-01258-DMS-BLM (S.D. Cal.), the Hon. Judge Dana M. Sabraw
entered an order granting in part and denying in part plaintiff's
motion for class certification.
Judge Sabraw says that even assuming the Plaintiffs' legal theories
are correct, the Court would have to probe into the two duration of
each employee's meal and rest periods for each shift in order to
determine Defendants' liability for the meal and rest period
violations alleged in this case. The Court therefore finds that
individualized questions about (1) the actual duration of each
employee's individual meal and rest periods, (2) how long it took
each employee to undergo security screening upon reentering the
ballpark during break times, and (3) whether employees were
disciplined for breaks exceeding ten- and thirty-minute durations
predominate over common questions regarding Defendants' written
policies. Accordingly, the Court denies certification of the
proposed Meal Period and Rest Period Subclasses.
The Plaintiffs filed a motion for class certification on May 3,
2021. She move to certify the following class and subclasses:
-- Class
"All non-exempt employees who worked for Defendants at
Petco Park from May 26, 2016 to the date the Court grants
class certification;"
-- Rest Period Subclass
"All non-exempt employees who worked for Defendants at
Petco Park from May 26, 2016 to the date the Court grants
class certification who worked at least one shift of over
three and a half hours;"
-- Meal Period Subclass
"All non-exempt employees who worked forDefendants at
Petco Park from May 26, 2016 to the date the Court grants
class certification who worked at least one shift of over
five hours;"
-- Unpaid Wages Subclass:
"All non-exempt employees who worked for Defendants at
Petco Park and were hired or re-hired by Defendants from
May 26, 2016 to the date the Court grants class
certification who submitted required paperwork on a date
before their first day of work shown in the time records;"
-- Wage Statement Subclass
"All non-exempt employees who worked for Defendants at
Petco Park and were hired or re-hired by Defendants from
May 26, 2019 to the date the Court grants certification
who submitted required paperwork on a date before their
first day of work shown in the time records;" and
-- Waiting Time Penalties Subclass
"All non-exempt employees who worked for Defendants at
Petco Park and were hired or re-hired from May 26, 2017 to
the date the Court grants class certification who
submitted required paperwork on a date before their first
day of work shown in the time records and whose employment
with Defendant has ended."
The Plaintiffs allege that during their employment, the Defendants
"have not paid for all time worked while the Non-Exempt Employees
are performing work and/or are subject to [Defendants'] control."
The Plaintiffs Morand-Doxzon and Ross Geraci are present or former
non-exempt, hourly employees of Defendants Delaware North Companies
Sportservice, Inc.; California Sportservice, Inc.; and/or San Diego
Sportservice, Inc.
The Defendants "provide food and beverage concessions, premium
dining, entertainment, lodging, and retail services" at sports
stadiums in San Diego." The Defendants California Sportservice and
Delaware North operate out of Petco Park, while Defendant San Diego
Sportservice operated out of the now defunct Qualcomm Stadium.
A copy of the Court's order dated Sept. 9, 2021 is available from
PacerMonitor.com at https://bit.ly/3zbovia at no extra charge.[CC]
DESIGNER BRANDS: DSW Gets Partial Summary Judgment vs LaGuardia
---------------------------------------------------------------
In the class action lawsuit captioned as Eric LaGuardia, et al., v.
Designer Brands Inc., et al., Case No. : 2:20-cv-02311-SDM-CMV
(S.D. Ohio), the Hon. Judge Sarah D. Morrison entered an order
that:
-- DSW Shoe Warehouse, Inc.'s motion for summary judgment
is granted as to Count 1 and denied as to Count 2.
-- Plaintiff's request to exclude is denied.
-- Plaintiffs' Rule 56(d) request is denied.
-- Plaintiff's request to amend is denied.
-- Counsel shall contact Magistrate Judge Vascura within
seven days of this Opinion and Order to develop a case
schedule.
This case is a putative class action brought under the Telephone
Consumer Protection Act. Because Defendants did not use an
automated telephone dialing system to send text messages to a
putative class, and because Defendants fail to establish that they
had an established business relationship with two of the
Plaintiffs, summary judgment is only partially proper.
A copy of the Court's order dated Sept. 9, 2021 is available from
PacerMonitor.com at https://bit.ly/3A9Eb6V at no extra charge.[CC]
DOROT CONTROL: Barnea Jaffa Attorney Discusses Court Ruling
-----------------------------------------------------------
Eyal Nachshon, Esq., of Barnea Jaffa Lande & Co., in an article for
JDSupra, reports that Motions to certify class actions have long
since become one of the most prevalent challenges facing private
and public companies providing services to the public. Empirical
studies show a gradual and nearly steady rise in the number of
motions to certify class actions being filed since the Israeli
Class Actions Law was enacted in 2006 and to date. If initially, a
few dozen motions were filed annually, today, hundreds and even
thousands of such motions are filed each year with the various
courts, which imposes a heavy burden on the courts and on the
parties being sued.
According to a ruling by the Israeli Supreme Court, a party seeking
to file a motion to certify a class action against a company is not
obligated to first contact the company to clarify details before
filing the motion (although not doing so may have other
implications, which we have already addressed in a previous
article). This often leads to the following situation: a motion to
certify a class action is filed against a company, without any
prior communications with the company and without the plaintiff who
initiated the proceeding being aware of the relevant details. In
his motion, the plaintiff alleges that the company is committing
some wrongdoing. After the motion to certify has been filed, it
becomes evident that the company has already rectified the alleged
"wrongdoing" -- sometimes as a result of the filing of the motion,
and sometimes as a result of an entirely unrelated process that the
company initiated prior to and without any connection to the filing
of the motion. Now the court faces a dilemma -- is it required to
conduct a full, long, complicated and expensive proceeding of
deliberating the motion to certify a class action, when the alleged
"wrongdoing" has already been rectified? Clearly, this would be a
waste of judicial and other resources and, to a large extent, the
ruling will be "rhetorical" since the subject of the action is no
longer an issue.
What is the best way to proceed under such circumstances?
Usually, class plaintiffs tend to insist on conducting the
proceeding or on formulating a settlement arrangement in an attempt
to compel the company to pay compensation to the public (and to
remunerate the class plaintiff and his attorney) in respect of the
"wrongdoing" that was allegedly committed up until the motion was
filed. The usual argument is that if the motion is abandoned, this
will serve as a negative incentive to file justified motions to
certify class actions because of the concern that companies will
"amend their ways" swiftly and try to "pull the rug out from under"
the proceeding.
The companies being sued, on their part, usually argue that, since
the alleged wrongdoing was rectified even before a ruling, this
should result in the immediate conclusion of the proceeding by way
of the plaintiff abandoning his allegations. Depending upon the
circumstances, the parties being sued also sometimes agree to pay
some compensation to the plaintiff in respect of the efforts
exerted until the claim became unnecessary, within the framework of
filing for a withdrawal agreement for the court's approval.
Defendants' usual argument within this context is that pursuing the
action is superfluous and would constitute a negative incentive for
companies to "amend their ways" while the proceeding is underway
(which may be protracted) and even before a ruling is issued.
The District Court in Lod recently handed down a ruling on a motion
to certify a class action, which was filed, inter alia, against
Dorot Control Valves Ltd., and it adopted the approach whereby,
under particular circumstances, if the alleged "wrongdoing" has
been rectified by the party being sued, then the class action has
been exhausted and it is not warranted to pursue the matter any
further. In these instances, so the court ruled, the proper
procedure is to conclude the proceeding with a withdrawal agreement
and not by a settlement agreement. In that case, the court ruled
that the withdrawal route is preferable since "when the objectives
of the action have been achieved, then in essence, no 'compromise'
needs to be reached." The court ruled therefore that the
appropriate route is withdrawing the action and, sometimes,
remunerated withdrawal, which takes into account the achievements
accomplished by the plaintiff, even if the efforts were exerted
only for a short time.
This court ruling may be edifying for many companies being sued in
class actions, when they consider effecting changes in their mode
of conduct -- without them per se being under any obligation to do
so, and before any judicial ruling in the proceeding. Companies
that opt to do so can, under particular circumstances, plead that
the class action proceeding has exhausted itself and should be
concluded by way of the plaintiff filing for withdrawing the
motion. In this way, companies being sued can save themselves the
considerable costs involved in managing a legal proceeding, and
also alleviate the heavy burdens being imposed on the courts. [GN]
EQUILON ENTERPRISES: Dimercurio's Class Cert. Bid Granted in Part
-----------------------------------------------------------------
Magistrate Judge Jacqueline Scott Corley of the U.S. District Court
for the Northern District of California grants in part the
Plaintiffs' motion for class certification in the lawsuit entitled
MARCO DIMERCURIO, et al., Plaintiffs v. EQUILON ENTERPRISES LLC,
Defendant, Case No. 19-cv-04029-JSC (N.D. Cal.).
The Plaintiffs are operators at a Shell oil refinery owned by
Equilon Enterprises, LLC ("Defendant" or "Shell"). They allege that
the Defendant's standby practices violate California's
wage-and-hour laws, Unfair Competition Law, and Private Attorneys
General Act.
Background
The Defendant owned and operated a Shell oil refinery located at
3485 Pacheco Boulevard in Martinez, California. The refinery
employed about 300 people as "operators." There were two operator
positions: "outside operators" and "inside operators." All inside
operators were qualified as outside operators, although outside
operators were not necessarily qualified as inside operators.
Operators qualified to perform both positions might switch between
the roles as regularly as every week or month. Operator duties
included opening and closing valves, starting and stopping pumps
and taking chemical samples. Their duties supported the refinery's
functions of importing crude oil, synthesizing it into gasoline,
exporting gasoline out of the refinery, processing oil byproducts
into intermediate gasoline, and converting petroleum byproducts
into petroleum coke.
Collective Bargaining Agreements
Operators were members of the United Steel, Paper and Forestry,
Rubber, Manufacturing, Energy, Allied Industrial and Service
Workers International Union, AFL-CIO, CLC ("USW"). Their terms and
conditions of employment at Shell were governed by various
collective bargaining agreements ("CBAs"), supplemental agreements,
and "side letters" with the USW. The CBA dated Feb. 1, 2015 ("2015
CBA") was effective from Feb. 1, 2015, through Jan. 31, 2019. Its
appendices included the Sept. 23, 1997 12-Hour Shift Agreement
("1997 Supplemental Agreement"), including the "Standby Coverage
and Requirements" attachment, and the July 8, 1999 Supplemental
Shift Agreement, 12-Hour Schedules ("1999 Supplemental
Agreement").
The CBA dated Feb. 1, 2019 ("2019 CBA") was effective beginning
Feb. 1, 2019. Its appendices included the 1997 Supplemental
Agreement and 1999 Supplemental Agreement. The standby provisions
of the 1997 Supplemental Agreement were effective throughout the
entire class period as a supplement to the 2015 CBA or 2019 CBA.
According to Shell, units or departments within the refinery might
have had their own "guidelines" that supplemented or superseded the
standby provisions in the 1997 Supplemental Agreement.
Standby
Consistent with the 1997 Supplemental Agreement, Shell had
"mandatory standby processes" designed to fill "short notice,
unscheduled absence[s]," meaning absences of which Shell was
notified during the shift preceding the absence or later. The
processes only applied when a department or work group was unable
to fill a vacancy on a voluntary basis.
Operators were on standby for a particular shift or set of shifts.
The standby period was 5:30 a.m. to 7:00 a.m. for day shifts and
5:30 p.m. to 7:00 p.m. for night shifts. During the standby period,
the operator did not need to call Shell or be at the refinery, but
had to be reachable in case Shell called the operator to cover an
unscheduled absence. If Shell called, according to the 1997
Supplemental Agreement, the operator had to respond promptly. If
Shell told the operator to come in to cover an unscheduled absence,
the operator had to arrive at the refinery within two hours. If
called in, the standby operator worked the remainder of the shift
(i.e., until 6:00 p.m. or 6:00 a.m.).
The operator was paid the greater of (a) five hours at the regular
hourly rate of pay or (b) the actual hours worked at 1.5 times the
regular hourly rate of pay. If not called in during the standby
period, the standby operator was not paid. Operators who failed to
answer a foreman's phone call during a standby shift were
considered absent without leave ("AWOL") and could be subject to
discipline. Operators were also subject to disciplinary
investigation if they failed to arrive within two hours of
receiving the foreman's call.
During the class period, all operators were subject to the standby
process. Shell only placed an operator on standby during an
operator's "long change" week. Shell could not put an operator on
standby who was on paid time off, on approved leave, or not on a
"long change." Over the course of a calendar year, each operator
was typically assigned to at least two "long change" weeks with
standby, with no standby on the remaining "long change" weeks.
During the "long change" weeks with standby, the operator was on
standby for all day and night shifts that week; however, if the
operator was called in, then the operator would not be on standby
for the shift immediately following.
In the four calendar years between 2015 and 2018, operators were on
standby for a total of 12,243 shifts.
The Plaintiffs and the Proposed Class
During their employment as operators, all four Plaintiffs were
members of the USW. The Plaintiffs experienced the standby
practices. The Plaintiffs forewent personal, recreational, and
family activities and overtime opportunities when they were on
standby.
Twenty other operators in the proposed class submit declarations
that Shell's standby system functioned as described. They attest
that they were scheduled for standby during the full seven days of
a "long change," at least twice a year; understood that they could
be subject to discipline for missing a call during the standby
period or failing to arrive at the refinery within two hours; and
forewent personal, recreational, and family activities and overtime
opportunities when they were on standby.
During the class period, none of the declarants was designated AWOL
for failing to answer a call during standby. Prior to the class
period, one declarant received a letter of reprimand for failing to
answer a call; another was designated AWOL for failing to answer a
call; and another, who served as a USW shop steward, handled a
grievance related to an operator's failure to answer a call.
Procedural History
In June 2019, the Plaintiffs filed their original class action
complaint in California state court with a claim for "Failure to
Pay Reporting Time Pay" in violation of California Industrial
Welfare Commission ("IWC") Wage Order 1-2001 and derivative claims
for "Failure to Pay All Wages Earned at Termination" in violation
of California Labor Code Sections 200-203; "Failure to Provide
Accurate Wage Statements" in violation of Labor Code Sections 226,
226.3; and "Unfair Business Practices" in violation of California's
Unfair Competition Law ("UCL"), California Business and Professions
Code Section 17200. The Defendant removed pursuant to the diversity
jurisdiction provisions of the Class Action Fairness Act, 28 U.S.C.
Section 1332(d), and purported federal question jurisdiction under
28 U.S.C. Section 1331.
In the operative first amended complaint, the Plaintiffs assert
their previous claims and an additional claim under California's
Private Attorneys General Act, Labor Code Section 2698. The Court
denied the Defendant's motion to dismiss.
The Plaintiffs now move to certify the following proposed class:
"All Operators working at the refinery of Equilon Enterprises LLC
dba Shell Oil Products US in Martinez, California at any time from
June 4, 2015, four years prior to the filing of this complaint, up
to and continuing through January 31, 2020."
The Plaintiffs also propose a "Waiting Time Penalties Sub-Class":
"All Operators who have been employed and separated from employment
(either by involuntary termination or resignation) at the refinery
of Equilon Enterprises LLC dba Shell Oil Products US in Martinez,
California, at any time from June 4, 2015 through January 31, 2020,
and who did not timely receive all their wages at time of
separation."
Request for Judicial Notice
The Defendant requests that the Court take judicial notice of a
trial court order denying class certification in Ward v. Tilly's,
No. BC595405 (Cal. Super. Ct. filed Sept. 21, 2015), and "[t]he
September 21, 2018 releases of all wage-related claims against"
Defendant by some putative class members, evidenced in six
documents from the class action settlement in Berlanga v. Equilon
Enters., LLC, No. 3:17-cv-00282-MMC (N.D. Cal. filed Jan. 19,
2017). The Plaintiffs oppose.
As to the Ward order, the Court takes judicial notice as a matter
of public record not subject to reasonable dispute. As to the
Berlanga settlement, the Court takes judicial notice of the
adjudicative fact--that is, the existence and contents of the
settlement--but not the settlement's legal effect on the merits of
this case.
Class Certification
The Plaintiffs contend that the putative class satisfies Rule
23(b)(3), which requires the Court to find "that the questions of
law or fact common to class members predominate over any questions
affecting only individual members, and that a class action is
superior to other available methods for fairly and efficiently
adjudicating the controversy.
Judge Corley notes that before certifying a class, the trial court
must conduct a rigorous analysis to determine whether the party
seeking certification has met the prerequisites of Rule 23 of the
Federal Rules of Civil Procedure.
Judge Corley finds that the Plaintiffs have established that the
class is sufficiently numerous. The Plaintiffs also satisfy the
commonality requirement. Judge Corley holds that a sub-class may be
appropriate for the waiting time penalties claim.
The Plaintiffs' claims are typical because they arise out of
Shell's uniform policy, at least on the record before the Court,
Judge Corley holds. She opines that the Defendant's arguments to
the contrary, are unavailing as they stem from factual disputes
that go to the merits of the claims, not whether the named
Plaintiffs' claims are typical of the class, citing Johnson v.
Serenity Transp., Inc., 2018 WL 3646540, at *7 (N.D. Cal. Aug. 1,
2018).
No conflicts between the Plaintiffs and with other class members
are apparent, and the Plaintiffs' involvement in the suit,
including as deponents, suggests they will vigorously prosecute the
case, Judge Corley states. The Defendant objects to Plaintiffs as
class representatives based on their conduct in several discovery
disputes. Judge Corley insists that none of the issues raised
suggest that the Plaintiffs have "abdicated any role in the case
beyond that of furnishing their names," citing Keegan v. Am. Honda
Motor Co., 284 F.R.D. 504, 525 (C.D. Cal. 2012).
The Plaintiffs propose Weinberg, Roger & Rosenfeld A.P.C. and
Leonard Carder LLP as class counsel. The former firm has
represented the Plaintiffs since the start and the latter appeared
earlier this year to support class certification and the parties'
settlement conference before a magistrate judge. Counsel are
experienced with class action suits under California wage-and-hour
law and have adequately prosecuted the case, including conducting
successful outreach to 20 members of the proposed class.
In sum, given that Plaintiffs have no apparent conflicts of
interest with other class members, the Plaintiffs are actively
participating in the case, and the Plaintiffs' counsel is highly
experienced in class action wage-and-hour litigation, the adequacy
requirement is met, Judge Corley holds.
The operative complaint, however, does not make any allegations
regarding the refinery sale, Judge Corley notes. Accordingly, given
that the Plaintiffs' oral argument position is somewhat different
from their motion and relies on facts not alleged in the complaint,
and given that the Plaintiffs' present position eliminates the
Defendant's standing concern since there are named Plaintiffs, who
were terminated by the refinery sale, the Plaintiffs' motion for
certification of the waiting time penalties claim is denied without
prejudice.
The Plaintiffs were allowed to submit on Sept. 13, 2021, a proposed
Second Amended Complaint that amends the waiting time penalties
claim (but adds no other claims) along with a five-page brief that
addresses why the Court should permit them to amend their complaint
and why certification of the waiting time penalties claim is
appropriate. Since there is an argument that those who separated
from employment after the complaint's filing may not be entitled to
waiting time penalties, the Plaintiffs should consider sub-classes
represented by different named Plaintiffs. The Defendant may submit
a five-page brief in response to the request for leave to amend, as
well as the certification issue on or before Sept. 27, 2021.
Judge Corley also holds that the remaining claims for which
Plaintiffs seek to certify a class are derivative of the first
claim for reporting-time pay. Hence, they satisfy predominance as
well. Because common questions predominate on the reporting-time
pay claim, they predominate on the third and fourth claims, the
Judge finds. She adds that the the superiority requirement is also
met.
The record before the Court establishes that the Plaintiffs satisfy
the Rule 23(a) and 23(b)(3) requirements to certify a class action,
except as to the waiting time penalties claim.
Administrative Motions to File Under Seal
The Plaintiffs seek to file under seal four documents produced by
Shell and filed in support of the Plaintiffs' motion for class
certification. The documents are a list of putative class members;
documents from standby-related grievances, with the names of
grievants redacted; work schedules indicating standby periods; and
Shell's policy on positive discipline.
The basis for sealing is that the Defendant designated the
documents confidential pursuant to the parties' Stipulated
Protective Order. However, the Plaintiffs dispute the propriety of
the Defendant's designation and take the position that the
documents should be part of the public record.
Judge Corley finds that to date, the Defendant, the designating
party, has not filed a responsive declaration to the Plaintiffs'
motion to seal. Therefore, the Court denies the Plaintiffs'
motion.
The Defendant seeks to file under seal the deposition of
Christopher Eric Palacio. The basis for sealing the entirety of the
deposition is that the Plaintiffs designated it confidential; the
Defendant does not comment on the propriety of that designation. As
to the entirety of the deposition, the Plaintiffs are the
designating party and have not filed a responsive declaration
establishing that the entire deposition is sealable.
The Defendant's basis for sealing excerpts of the deposition is
that Mr. Palacio discussed a specific grievance arising from a
disciplinary matter, in which the named grievant has a privacy
interest. The Court agrees.
Therefore, the Defendant's motion is granted in part; the excerpts
of Mr. Palacio's deposition at Docket No. 100-1 at 26:19-27:6,
27:22-29:6, 30:16-18, 30:22-23, 31:1-3, 32:8-9, 32:14, 39:14-21,
may be filed under seal.
Finally, the Plaintiffs request that the Court disregard the
portion of the Defendant's opposition that exceeds the 25-page
limit, see N.D. Cal. Civ. L.R. 7-3(a). Because the Court grants in
part the Plaintiffs' motion for class certification, the request is
denied as moot.
Conclusion
For the reasons explained, the Plaintiffs' motion for class
certification is granted in part. The Plaintiffs' claims for (1)
reporting time pay, (3) wage statements, and (4) unfair business
practices are certified as to the following class:
All Operators working at the refinery of Equilon Enterprises
LLC dba Shell Oil Products US in Martinez, California, who
were scheduled for standby at any time from June 4, 2015,
four years prior to the filing of this complaint, up to and
continuing through January 31, 2020.
The Plaintiffs were to submit a proposed Second Amended Complaint,
with a five-page brief addressing why the Court should grant leave
to amend and certify the waiting time penalties claim. The
Defendant may submit a five-page brief in response on or before
Sept. 27, 2021.
Weinberg, Roger & Rosenfeld A.P.C. and Leonard Carder LLP are
appointed as class counsel. The Court will hold a further case
management conference on Oct. 28, 2021, at 1:30 p.m., by Zoom
video. The parties will submit an updated joint case management
conference statement by Oct. 21, 2021. The Statement will include a
proposed case schedule through trial.
The Order disposes of Docket Nos. 89, 90, 100, 102.
A full-text copy of the Court's Order dated Aug. 30, 2021, is
available at https://tinyurl.com/ffc75dcc from Leagle.com.
EVMO INC: Rung and Vanbecelaere Suits Remains Stayed
----------------------------------------------------
EVmo, 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 securities class action suits
entitled, Ivan Rung v. YayYo, Inc., Ramy El-Batrawi, et al.,
20STCV27876 and Michael Vanbecelaere v. YayYo, Inc., Ramy
El-Batrawi, et al., 20STCV28066, remains stayed.
On July 22 and July 23, 2020, respectively, two actions were filed
in the Los Angeles Superior Court. The complaints underlying the
State Cases differ only by a few words and some random punctuation
marks, and are therefore virtually identical.
Plaintiffs Ivan Rung and Michael Vanbecelaere each claimed to have
purchased the Common Stock as part of the Company's initial public
offering (the "IPO"); they purport to bring a securities class
action on behalf of all purchasers of the Common Stock pursuant to
the registration statement and prospectus filed with the SEC and
distributed in connection with the Company's IPO, which was
launched on November 14, 2019.
The State Case complaints allege misrepresentations and material
omissions in the SEC filings in violation of Sections 11 and 15 of
the Securities Act of 1933, as amended.
The Company has and continues to vigorously deny any and all
liability and asserts that the State Cases are baseless.
It is the Company's firm position that it accurately and completely
disclosed all material facts and circumstances in its SEC filings
relating to the IPO, and subsequently in its periodic SEC reports,
including those that were potentially adverse to the Company's
operations and business prospects.
The State Cases litigation is presently stayed pending the outcome
of the federal securities case entitled, Hamlin v. YayYo, Inc.
EVmo, Inc. was formed on June 21, 2016 under the name "YayYo, LLC,"
which was converted into a Delaware corporation pursuant to the
unanimous written consent of the company's former manager and
members in a transaction intended to be tax-free under the Internal
Revenue Code. All of YayYo, LLC's liabilities and assets, including
its intellectual property, were automatically transferred to the
Company and the Company has assumed ownership of such assets and
liabilities. The Company now operates as a "C" corporation formed
under the laws of the State of Delaware. On September 11, 2020,
YayYo, Inc. changed its name to Rideshare Rental, Inc. On March 1,
2021, the Company changed its name from Rideshare Rental, Inc. to
EVmo, Inc. The Company is a holding company operating through its
wholly-owned subsidiaries, Distinct Cars, LLC and Rideshare Car
Rentals, LLC.
EVMO INC: Trial in Consolidated Class Suit Set for Oct. 5
---------------------------------------------------------
EVmo, 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 in the consolidated
securities class action suit entitled, In re YayYo Securities
Litigation, has set a trial date of October 5, 2021.
Jason Hamlin v. YayYo, Inc., Ramy El-Batrawi, et al., 20-cv-8235
(SVW) and William Koch v. YayYo, Inc., Ramy El-Batrawi, et al.,
20-cv-8591 (SVW)(now consolidated as "In re YayYo Securities
Litigation")
These two actions were filed on September 9, 2020 and September 18,
2020, respectively, in the United States District Court for the
Central District of California.
Plaintiffs Jason Hamlin and William Koch each claim to have
purchased the Common Stock as part of the initial public offering
(IPO) and, like the plaintiffs Vanbecelaere and Rung in the State
Cases, purport to bring a securities class action pursuant to
Sections 11 and 15 of the Securities Act, as well as and Section
17(a) and 10(b)(5) of the Securities Exchange Act of 1934, as
amended on behalf of all purchasers of the Common Stock in the IPO.
The first amended complaint, like the State Cases, alleges false
statements and material omissions of material fact in connection
with the SEC filings distributed in connection with the IPO.
The defendants include directors of the Company and the
underwriters of the IPO, WestPark Capital, Inc. and Aegis Capital
Corp.
The federal court has consolidated the two matters for all
practical purposes. As with the State Cases, the Company denies
liability and asserts that it accurately and completely disclosed
all material facts and circumstances in its SEC filings, and that
the complaint's alleged violations of securities laws are baseless.
The Company's motion for judgment on the pleadings was recently
denied, and the plaintiff's motion for class action certification
is presently pending.
The Company intends to vigorously defend the lawsuit in federal
court.
The Court has set a trial date of October 5, 2021.
EVmo, Inc. was formed on June 21, 2016 under the name "YayYo, LLC,"
which was converted into a Delaware corporation pursuant to the
unanimous written consent of the company's former manager and
members in a transaction intended to be tax-free under the Internal
Revenue Code. All of YayYo, LLC's liabilities and assets, including
its intellectual property, were automatically transferred to the
Company and the Company has assumed ownership of such assets and
liabilities. The Company now operates as a "C" corporation formed
under the laws of the State of Delaware. On September 11, 2020,
YayYo, Inc. changed its name to Rideshare Rental, Inc. On March 1,
2021, the Company changed its name from Rideshare Rental, Inc. to
EVmo, Inc. The Company is a holding company operating through its
wholly-owned subsidiaries, Distinct Cars, LLC and Rideshare Car
Rentals, LLC.
EXELA TECHNOLOGIES: Continues to Defend Shen Putative Class Suit
-----------------------------------------------------------------
Exela 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 company continues to
defend a putative class action suit initiated by Bo Shen.
On March 23, 2020, the Plaintiff, Bo Shen, filed a putative class
action against the Company, Ronald Cogburn, the Company's Chief
Executive Officer, and James Reynolds, the Company's former Chief
Financial Officer. Plaintiff claims to be a current holder of
1,333 shares of Company stock, purchased on October 4, 2019 at
$4.02/share.
Plaintiff asserts two claims covering the purported class period of
March 16, 2018 to March 16, 2020: (1) a violation of Section 10(b)
and Rule 10b-5 of the Exchange Act against all defendants; and (2)
a violation of Section 20(a) of the Exchange Act against Mr.
Cogburn and Mr. Reynolds.
The allegations stem from the Company's press release, dated March
16, 2020 (announcing the postponement of the earnings call and
delay in filing of its annual report on Form 10-K for the fiscal
year ended December 31, 2019), and press release and related SEC
filings, dated March 17, 2020 (announcing its intent to restate its
financial statements for 2017, 2018 and interim periods through
September 30, 2019).
The Company moved to dismiss the case and the Company's motion was
granted in its entirety on June 24, 2021.
Plaintiffs filed an amended complaint by the Court's deadline on
August 5, 2021.
Exela said, "At this time, it is not practicable to render an
opinion about whether an unfavorable outcome is probable or remote
with respect to this matter; however, the Company believes it has
meritorious defenses and will continue to vigorously assert them."
Exela Technologies, Inc. is a global business process automation
leader leveraging a global footprint and proprietary technology to
help turn the complex into the simple through user friendly
software platforms and solutions that enable our customers’
digital transformation. The company is based in Irving, Texas.
FIBROGEN INC: Four Securities Fraud Actions Consolidated in Xu Suit
-------------------------------------------------------------------
In the lawsuit titled PEIFA XU, Plaintiff v. FIBROGEN, INC., et
al., Defendants, Case No. 21-cv-02623-EMC (N.D. Cal.), District
Judge Edward M. Chen of the U.S. District Court for the Northern
District of California grants:
-- the parties' motions to consolidate the related actions in
this matter; and
-- the Retirement Systems' motion for appointment as lead
plaintiffs and approval of their selected law firm, Saxena
White, as lead counsel.
The case is a securities-fraud class action brought on behalf of
investors, who purchased stock in FibroGen, Inc., from October 2017
through April 2021. The Plaintiffs assert claims under Sections
10(b) and 20(a) of the Securities Exchange Act of 1934 ("Exchange
Act") as well as Securities and Exchange ("SEC") Rule 10b-5.
Pending before the Court are three class members' motions for
consolidation of related actions, appointment as lead plaintiff,
and approval of lead counsel pursuant to the Private Securities
Litigation Reform Act of 1995 ("PSLRA").
The motions were filed by Plaintiffs Vicente Sepulveda; the
Employees' Retirement System of the City of Baltimore ("Baltimore
Fund"), the City of Philadelphia Board of Pensions and Retirement
("Philadelphia Fund"), and the Plymouth County Retirement
Association ("Plymouth Fund") (collectively, the "Retirement
Systems"); and Stefano Branca and Giuliana Mollo.
Background
Plaintiff Peifa Xu filed a class action complaint in the Court on
April 12, 2021. According to the Xu complaint, Defendant FibroGen
"is a biopharmaceutical company that develops medicines for the
treatment of anemia, fibrotic disease, and cancer." "Its most
advanced product is roxadustat," an oral medication "for the
treatment of anemia due to chronic kidney disease ('CKD')." In
November 2019, "FibroGen issued a press release announcing
'Positive Phase 3 Pooled Roxadustat Safety and Efficacy Results'"
based on six global clinical trials. From February to December
2020, the Company made additional public statements suggesting that
the FDA review process was proceeding smoothly.
In April 2021, however, FibroGen issued a press release that
"provided clarification of certain prior disclosures of U.S.
primary cardiovascular safety analyses from the roxadustat Phase 3
program." According to the statement, senior management became
aware, while preparing for an upcoming FDA Advisory Committee
meeting, that the earlier cardiovascular safety analyses included
post-hoc changes to stratification factors. When these changes were
removed, the pre-specified stratification factors resulted in
higher hazard ratios such that FibroGen could no longer represent
that roxadustat is safer than epoetin alfa in treating CKD anemia.
The following two days, the Company's share price fell $14.90, or
43%.
The Xu complaint alleges that FibroGen's public statements prior to
the April 2021 disclosure "were materially false and/or misleading,
and failed to disclose material adverse facts about the Company's
business, operations, and prospects." The complaint asserts one
claim under Section 10(b) of the Exchange Act and SEC Rule 10b-5
against all Defendants and another under Section 20(a) of the
Exchange Act against Individual Defendants Enrique Contero, James
Schoeneck, and K. Peony Yu, who were officers of the Company at
relevant times.
After the Xu complaint was filed in this Court, similar actions
were brought by purchasers of FibroGen securities elsewhere in this
district. See Gutman v. FibroGen, Inc., No. 3:21-cv-02725-YGR;
Grazioli v. FibroGen, No. 3:21-cv-03212-CRB; IBEW Local 353 Pension
Plan v. FibroGen, Inc., No. 3:21-cv-03396-EJD; Leonard v. FibroGen,
Inc., No. 3:21-cv-03370-EMC. The Class Period asserted in the
Leonard action is the longest and runs from Oct. 18, 2017, through
April 6, 2021.
Beginning on June 11, 2021, five class members filed motions for
consolidation of related actions, appointment as lead plaintiff,
and approval of lead counsel. They include Plaintiffs Brett
Richard, Sepulveda, the Retirement Systems, Thomas Leonard, and
Branca-Mollo. On June 14, 2021, Plaintiff Richard withdrew his
earlier motion. On June 25, 2021, Plaintiff Leonard filed a notice
of non-opposition to the competing motions. Also on June 25, 2021,
Sepulveda, the Retirement Systems, and Branca-Mollo each filed
oppositions to one another's competing motions. On July 2, 2021,
Sepulveda, the Retirement Systems, and Branca-Mollo filed reply
briefs in support of their motions.
The Court held a hearing on the competing motions on Aug. 19,
2021.
Consolidation of Related Actions
All three Movants agree that the five related actions should be
consolidated. They argue that these actions "present virtually
identical factual and legal issues," as each "alleges violations of
Sections 10(b) and 20(a) of the Exchange Act, names common
Defendants, and stems from the same underlying operative facts and
circumstances." Additionally, the misstatement theories of the five
cases are nearly identical, with complaint alleging that the
Defendants made materially false and/or misleading statements
and/or failed to disclose material adverse facts about the Phase 3
roxadustat trial; specifically, the complaints all allege the
Defendants' misstatements made roxadustat seem safer than it
actually was.
Neither FibroGen nor the Individual Defendants oppose the motions
to consolidate.
Because consolidation would "expedite these proceedings, reduce
duplicative efforts, and save all parties time, energy, and
expense," the Court grants the Plaintiffs' motion for consolidation
of the related actions.
Appointment of Lead Plaintiff
The Court finds that the Retirement Systems have the greatest
financial interest in the litigation, whether measured as actual
losses suffered or potential recovery under Dura Pharmaceuticals,
Inc. v. Broudo, 544 U.S. 336 (2005).
Based the Movants' own representations, the Retirement
Systems--when aggregating the losses of their constituent
members--have suffered total losses of more than $1.3 million,
while Sepulveda has suffered losses of approximately $947,000 and
Branca-Mollo have suffered losses of around $459,000. The
Retirement Systems, therefore, have the largest financial interest
in the relief sought by the class, and are presumptively the most
adequate plaintiff when considered on that basis, Judge Chen
holds.
As the Retirement Systems have the largest financial interest in
the instant litigation, the Court next considers whether they have
made a prima facie showing of typicality and adequacy and, if so,
whether the competing Movants have rebutted that prima facie
showing. As to typicality, the Retirement Systems' own "pleadings
and declarations" offer no reason to suspect that their losses are
atypical of those of other class members, Judge Chen notes. Neither
Sepulveda nor Branca-Mollo meaningfully challenges this conclusion.
Instead, the key issue they raise is whether the Retirement Systems
constitute an improper artificial group and are, therefore,
inadequate lead plaintiffs for purposes of Rule 23 of the Federal
Rules of Civil Procedure and the PSLRA.
The Court finds that the Retirement Systems have made a prima facie
showing of adequacy. In a joint declaration submitted alongside
their lead-plaintiff motion, the Retirement Systems confirm that
they have prior familiarity with one another through their
membership in the National Conference for Public Employee
Retirement Systems" as well as (in the case of the Baltimore and
Philadelphia Funds) the "Mid-Atlantic Plan Sponsors, a non-profit,
eleven-state organization dedicated to trustee education.
As the Court noted, the Retirement Systems are sophisticated
institutional investors with substantial experience litigating
large-scale securities class actions--important attributes given
"the PSLRA's clear preference for institutional investors" to serve
as lead plaintiffs. Additionally, the Retirement Systems have
significant fiduciary responsibilities to their tens of thousands
of beneficiaries and are, therefore, bound "to achieve the best
possible recovery for the Class from all culpable parties."
In sum, the Retirement Systems' sophistication, litigation
experience, fiduciary responsibilities to their beneficiaries, and
rigorous vetting process for counsel strongly imply that they are
capable of overseeing the litigation and their proposed lead
counsel in an independent manner.
In light of these, the Court grants the Retirement Systems' motion
for appointment as lead plaintiffs and denies Sepulveda's and
Branca-Mollo's corresponding motions.
Approval of Lead Counsel
The Court finds that the Retirement Systems' selected firm, Saxena
White, is fit to serve as lead counsel in this case. According to
the firm's resume, Saxena White has recovered hundreds of millions
of dollars for plaintiffs in securities cases over the past decade.
Additionally, in this District, Saxena White achieved a settlement
valued at $320 million in a derivative action on behalf of Wells
Fargo & Company--one of the largest shareholder derivative
settlements in history, including $240 million in cash.
The opposing parties, finally, have not attempted to show that
Saxena White would be in any way inadequate to representing the
proposed class, Judge Chen notes.
The Court, therefore, grants the Retirement Systems' motion to
approve Saxena White as lead counsel, and denies Sepulveda's and
Branca-Mollo's corresponding motions.
Conclusion
For the reasons given in this Order, the Court grants the
Plaintiffs' motions to consolidate the related actions in the
matter. It also grants the Retirement Systems' motion for
appointment as lead plaintiffs and for approval of lead counsel and
denies the corresponding motions of Sepulveda and Branca-Mollo.
The Plaintiffs will file a consolidated amended complaint within 30
days from the date of this order. The Plaintiffs' counsel will also
submit a protocol for controlling fees and costs as this Court has
implemented in, e.g., In re Carrier IQ Consumer Privacy Litigation,
No. 12-md-02330-EMC, Docket No. 100 (N.D. Cal. July 16, 2012).
The Order disposes of Docket Nos. 22, 29, and 40.
A full-text copy of the Court's Order dated Aug. 30, 2021, is
available at https://tinyurl.com/6cch5tkx from Leagle.com.
FOXY LADY: Settles Dancers' Wage Class Action for $1.5 Million
--------------------------------------------------------------
Brian Amaral, writing for Boston Globe, reports that the Foxy Lady
strip club has agreed to pay $1.5 million to settle a class-action
lawsuit filed by dancers who alleged the club misclassified them as
independent contractors and failed to pay them what they deserved,
according to court records.
The dancers filed the agreement with the club in Rhode Island
federal court on Sept. 7. Because class actions involve not just
people who actually filed suit but a whole group of people who were
allegedly harmed, they require a sign-off from a judge, a process
that could take a few months. Class members will have a chance to
object if they want. [GN]
GENERAL MOTORS: Faces Class Action Over Defective Airbags
---------------------------------------------------------
Corrado Rizzi, writing for ClassAction.org, reports that a proposed
class action alleges airbag inflators made by Joyson Safety
Systems, the successor-in-interest to Takata Corporation, were
contaminated by moisture during the manufacturing process yet
nevertheless equipped in certain GMC, Chevy and Dodge trucks.
A proposed class action alleges airbag inflators made by Joyson
Safety Systems, the successor-in-interest to Takata Corporation,
were contaminated by moisture during the manufacturing process yet
nevertheless equipped in certain GMC, Chevy and Dodge trucks.
According to the 88-page lawsuit, defendants General Motors and FCA
US knew the airbag inflators posed a critical safety risk in that
they were prone to explode spontaneously, even without airbag
deployment, yet misrepresented the following vehicle models as
safe:
-- 2015-2016 GMC Sierra 1500;
-- 2015 GMC Sierra 2500/3500;
-- 2015-2016 Chevrolet Silverado 1500;
-- 2015-2016 Chevrolet Silverado 2500/3500;
-- 2015-2019 Dodge Ram 1500;
-- 2015-2020 Dodge Ram 2500;
-- 2015-2020 Dodge Ram 3500; and
-- 2019-2020 Dodge Ram Classic.
Each Joyson airbag at issue comes with an inflator vessel whose
interior suffers from corrosion caused by moisture introduced
during the manufacturing process, the suit says. According to the
complaint, affected airbags are located in the roof-rails of
certain trucks made by General Motors and the side-curtains of
those made by FCA, although the defect may also be present in other
airbags made and distributed by Joyson, the case says.
As a result of the interior corrosion plaguing the products'
inflator vessels, Joyson airbags fail to perform as they should and
could possibly explode spontaneously and spray metal shrapnel into
a vehicle's driver and passenger compartments, the suit alleges.
The lawsuit contends General Motors, FCA US and Joyson either knew
or should have known of the airbag inflator problem in light of
their "respective histories" with Takata, the Japanese auto parts
company whose airbag inflators have become synonymous with a series
of deaths and injuries in 2013. In June 2017, Takata filed for
Chapter 11 bankruptcy in the United States and for bankruptcy
protection in Japan as the company owed amounts in compensation
that were too great for it to survive.
In April 2018, the bankrupt assets of Takata were acquired by Key
Safety Systems, who then renamed itself Joyson Safety Systems and
now owns Takata's supplier factories, the case says. Per the
complaint, General Motors and FCA had more than enough information
at their disposal to know that Joyson's airbag inflators,
reportedly made in the same facility in Mexico as earlier Takata
airbags, might suffer from similar problems as those made by the
company's predecessor:
"The Truck Manufacturers are aware of the Takata Recalls and are
still facing ongoing litigation for, among other things,
concealment and suppression of facts related to the Takata Recalls.
The Truck Manufacturers are also aware that Joyson is Takata's
successor-in-interest. The Truck Manufacturers therefore knew or
should have known that airbags manufactured by Joyson contain
similar defects in design or manufacturing to those triggering the
Takata Recalls."
The lawsuit alleges the automakers "are putting profits ahead of
safety" by continuing to equip certain trucks with Joyson airbags
even though "they knew or should have known those airbags were
defective." The case says that only recently, on the heels of a
second GM recall of 400,000 pickup trucks in the U.S., has the
defective nature of the Joyson airbags come to light.
The complaint argues that as a result of GM, FCA and Joyson's
alleged conduct, drivers have bought or leased vehicles that are of
a lesser standard, grade and quality than represented and fail to
meet ordinary and reasonable consumer safety and reliability
expectations. For their part, the defendants have seemingly avoided
losing money by declining to initiate a mass recall of affected
trucks, the suit alleges.
"Plaintiffs and the Classes were deprived of having a safe,
defect-free airbag installed in their vehicles, and Defendant
unjustly benefited from their unconscionable delay in recalling
their defective products, as it avoids incurring the costs
associated with recalls and installing replacement parts," the
complaint reads.[GN]
GOOGLE INC: Northern District of Illinois Stays Rivera BIPA Suit
----------------------------------------------------------------
The U.S. District Court for the Northern District of Illinois,
Eastern Division, grants the Plaintiffs' motion to stay the lawsuit
styled LINDABETH RIVERA and JOSEPH WEISS, on behalf of themselves
and all others similarly situated, Plaintiffs v. GOOGLE, INC.,
Defendant, Case No. 1:16-CV-02714 (N.D. Ill.).
The case arises out of Google's collection and retention of
biometric facial information. In 2018, the Court granted summary
judgment in favor of Google, holding that the Plaintiffs lacked
Article III standing. The Plaintiffs appealed to the Seventh
Circuit. But as case law developed on standing for claims under the
Illinois Biometric Information Privacy Act (now commonly referred
to as BIPA), all agreed that a remand was appropriate. After the
case was remanded, the Plaintiffs moved to stay the federal lawsuit
in favor of a parallel case filed in Illinois state court.
Background
Invoking BIPA, Lindabeth Rivera and Joseph Weiss sued Google for
collecting and retaining their face templates through Google
Photos. They have sued, on behalf of a proposed class, under
Sections 15(a) and 15(b) of BIPA.
After the lawsuit's filing, and after a denial of Google's
dismissal motion, the parties engaged in discovery. Following the
close of discovery, the Court granted summary judgment for Google
on the basis that the Plaintiffs lacked Article III standing,
because they had not suffered a sufficiently concrete harm to
satisfy the injury-in-fact requirement.
The Plaintiffs appealed to the Seventh Circuit. Meanwhile, given
the dismissal of the federal case on Article III grounds, the
Plaintiffs filed a virtually identical complaint in Illinois state
court. At that time, the Cook County Circuit Court stayed the case
pending resolution of the parallel federal proceedings.
In the same state court, the Plaintiffs' counsel filed another
substantially similar case against Google on behalf of different
plaintiffs. This case, also handled by the same state trial judge,
has been stayed too. The Plaintiffs filed yet another similar case
on behalf of other plaintiffs in the Northern District of
California. That case has also been stayed.
While the Plaintiffs' appeal was pending, the Seventh Circuit
issued two decisions addressing Article III standing under BIPA.
See Bryant v. Compass Grp. USA, Inc., 958 F.3d 617 (7th Cir. 2020);
and Fox v. Dakkota Integrated Sys., LLC, 980 F.3d 1146 (7th Cir.
2020).
In the meantime, the Plaintiffs' appeal was placed in the Seventh
Circuit's mediation program. The mediation efforts proved
unsuccessful. But before the filing of opening briefs, Google moved
this Court for an indicative ruling in light of the Seventh
Circuit's holdings in Bryant and Fox.
In December 2020, the Court granted Google's motion, holding that
"if the Seventh Circuit were to remand this case, then this Court
would vacate the judgment that the Plaintiffs lack Article III
standing to pursue the claims under Section 15(b)," but the
"judgment would remain intact that the Plaintiffs lack Article III
standing under Section 15(a)." With the indicative ruling in place,
the Seventh Circuit remanded the case to this Court (7th Cir. No.
19-1182).
The Plaintiffs concede that the Court still lacks Article III
jurisdiction over the Section 15(a) claims concerning the retention
policy. In January 2021, the Plaintiffs moved to stay this federal
action in favor of the parallel state court lawsuit, which, as of
June 21, 2021, commenced again after the trial judge lifted the
stay there.
Analysis
On the threshold issue, the Rivera state court action is virtually
identical to its federal counterpart here. Given the parallel
lawsuits, the Court moves on to weigh the factors under Colorado
River Water Conservation District v. United States, 424 U.S. 800,
817 (1976).
1. Jurisdiction over property.
The case does not involve a tug-of-war over real estate or a
singular piece of tangible property, so this factor does not apply
at all.
2. Inconvenience of federal forum.
Both the federal and state court forums are located in Chicago, so
there is no inconvenience either way. Although it is true that the
Plaintiffs initially filed in federal court, they are now the ones
who ask for a stay in favor of the parallel state court lawsuit. So
this otherwise neutral factor weighs only modestly against
abstention.
3. Avoiding piecemeal litigation.
For this particular case and for its specific circumstances, this
is the key consideration, and it weighs heavily in favor of
abstention, District Judge Edmond E. Chang states.
On remand from the Seventh Circuit, in light of Bryant, this Court
only has jurisdiction over the informed-consent claims under
Section 15(b) and cannot exercise jurisdiction over the
retention-policy claims under Section 15(a). In contrast, the state
case can proceed on both the informed-consent claims and the
retention-policy claims). If the Court continued to litigate the
informed-consent claims, and the state court did too, then two
courts would be managing the same informed-consent claims between
the same parties. That would make no sense and impose burdens on
the parties and both courts, Judge Chang points out.
The other possibility is that the state court would litigate only
the retention-policy claims and stay the informed-consent claims in
favor of litigating those claims here in federal court. But that
would result in inefficient piecemeal litigation. As the federal
court considers one set of claims and the state court the other,
there is a serious risk, given the factual overlap of the claims,
of drawing inconsistent factual inferences from the same discovery
record, Judge Chang holds.
Worse, Judge Chang says, the propriety of class certification has
not yet been decided, and that too can cause enormous
inefficiencies and costs. Worst of all, if an informed-consent
class were certified in federal court and a retention-policy class
were certified in state court, then, class members (who would
almost surely substantially overlap) would receive two sets of
notices and engender substantial confusion.
To avoid all this, Google argues (in the alternative) that the
Plaintiffs' standing to bring retention-policy claims in state
court is not guaranteed. There are few guarantees in law and life,
but this is not very persuasive, Judge Chang opines.
Judge Chang holds that it is very likely that the Plaintiffs will
survive standing challenges in state court on the retention-policy
claims. So all the waste identified will come to pass if both
courts keep moving forward.
4. Order of jurisdiction.
This factor weighs against abstention because the Plaintiffs filed
in federal court first, Judge Chang notes. Having said that, the
Plaintiffs did so when Bryant had not yet been decided, so it was
still possible, at that time, to litigate both sets of claims in
federal court.
5. Source of governing law.
Judge Chang holds that this factor weighs significantly in favor of
abstention because Illinois legislation supplies the substantive
governing law.
The Illinois interest in an Illinois state court deciding an
Illinois statutory claim weighs in favor of abstention.
6. Adequacy of state action.
Given the availability of federal-law defenses in state court,
there is no reason to doubt that an Illinois state court can
adequately protect both parties' interests, Judge Chang says.
7. Relative progress.
This factor weighs against abstention given the significant
discovery that has taken place in this Court, Judge Chang holds.
Even with bifurcated discovery (putting off class-certification
discovery as described earlier), the parties exchanged over 150
discovery requests and took five depositions. The state court
action, on the other hand, "never got off the ground."
As the Opinion discussed, however, class-certification discovery
looms and, indeed, as the Plaintiffs point out, the summary
judgment practice was limited to standing and standing-related
arguments. A large part of the federal discovery should be usable
in state court, perhaps with targeted supplementation that might be
needed to conform with state rules and state practice. So, although
this factor weighs modestly against abstention, it is not enough to
outweigh splitting the case into two.
8. Concurrent jurisdiction.
As discussed, the state court has concurrent jurisdiction over both
sets of BIPA claims, so this weighs in favor of a stay here to gain
the efficiencies of one court presiding over the entirety of the
claims.
9. Availability of removal.
Judge Chang finds that this factor weighs slightly in favor of
abstention because Google cannot remove the retention-policy claims
in the Rivera state court action. The time to remove the case
expired during the pendency of the appeal, 28 U.S.C. Section
1446(b)(2)(B), but the that is not the truly important problem with
removal.
The real problem is that, even if the state case could be removed,
the retention-policy claims would go back to state court again due
to lack of Article III standing for those claims, Judge Chang
notes. In other words, the Plaintiffs did not try to circumvent the
removal statute by filing the retention-policy claims in state
court--they did so only after the Court dismissed those claims on
summary judgment. Those claims cannot be removed to the Court,
period, so this factor weighs in favor of deferring to a state
action in which both sets of claims can be litigated together.
10. Vexatiousness.
As discussed, given the Court's dismissal of the retention-policy
claims, the Plaintiff's decision to file the state action in Rivera
was not vexatious. Indeed, Bryant confirmed that a retention policy
limited to the failure to publicly disclose a retention schedule
does not satisfy the injury-in-fact requirement. So it was
reasonable for the Plaintiffs to file the Rivera state action to
preserve the retention-policy claims.
Against this, Google contends that the Plaintiffs' counsel engaged
in forum-shopping by filing the nearly identical Molander case in
the Northern District of California. But that argument, for what it
is worth, targets Molander as a potentially vexatious case, not
Rivera in Illinois state court. This factor does not weigh in favor
of a stay.
Conclusion
The significant costs imposed by piecemeal litigation--dividing the
informed-consent claims and the retention-policy claims into two
different forums--and the strong Illinois interest in presenting an
Illinois statutory dispute to the Illinois state court system
dictate that this federal case be stayed in favor of the state
case.
Hence, the Plaintiffs' motion to stay is granted. To track the case
only (no appearance is required), a status hearing is set for Dec.
3, 2021, at 8:30 a.m. The parties will file a concise status report
setting forth the general status of the state case by Nov. 22,
2021.
A full-text copy of the Court's Memorandum Opinion and Order dated
Aug. 30, 2021, is available at https://tinyurl.com/5ahmvh6s from
Leagle.com.
GOYA FOODS: Mejias' Bid to Move Suit to New Jersey Super. Ct. Nixed
-------------------------------------------------------------------
The U.S. District Court for the District of New Jersey denies the
Plaintiffs' Motion to Remand, and grants Goya's Motion for
Reconsideration in the lawsuit entitled ANIBAL MEJIAS, et al.,
Plaintiffs v. GOYA FOODS, INC., et al., Defendants, Case No.
2:20-cv-12365 (BRM) (LDW) (D.N.J.).
Plaintiffs Anibal Mejias, Jerry Fuller, Dennis Minter, and Jose
Pena seek to remand the matter to the Superior Court of New Jersey.
Defendants Goya Foods, Inc., Robert I. Unanue, Francisco R. Unanue,
Joseph Perez, Peter Unanue, David Kinkela, Rebecca Rodriguez,
Carlos G. Ortiz, Miguel A. Lugo, Jr., and Conrad Colon opposed, the
Plaintiffs replied, and the Defendants filed a sur-reply. The
second motion is Goya's Motion for Reconsideration of the Court's
May 26, 2021 Memorandum and Order to Show Cause ("Memorandum and
OTSC"). The Plaintiffs opposed, and Goya replied.
Background
The underlying facts of this matter, as well as a description of
the Plaintiffs' First Amended Complaint ("FAC") and Second Amended
Complaint ("SAC"), are set forth at length in the Memorandum and
OTSC.
On Sept. 4, 2020, the Defendants removed this matter to this Court
pursuant to the Class Action Fairness Act ("CAFA"). On Oct. 26,
2020, the Plaintiffs moved to remand the matter to the Superior
Court of New Jersey pursuant to several exceptions to CAFA.
On May 26, 2021, the Court held that, at the time of removal, the
Defendants failed to meet their burden of establishing minimal
diversity pursuant to CAFA and, accordingly, ordered limited
jurisdictional discovery to resolve this issue. The Court also
ordered the Defendants, once jurisdictional discovery was complete,
to show cause as to whether the Court has subject matter
jurisdiction over the Plaintiffs' FAC pursuant to CAFA. Finally,
the Court administratively terminated the Plaintiffs' Motion to
Remand pending jurisdictional discovery and adjudication of the
Order to Show Cause.
On June 9, 2021, Goya filed a Motion for Reconsideration of the
Memorandum and OTSC. On June 15, 2021, the Court issued an order
staying jurisdictional discovery pending adjudication of Goya's
Motion for Reconsideration.
Motion for Reconsideration
Goya argues the Court made a clear error of law in its Memorandum
and OTSC in finding that the Defendants failed to meet their burden
to establish minimal diversity. Goya points to two declarations
attached to the Defendants' opposition to the Plaintiffs' Motion to
Remand, which set forth the citizenship of two putative class
members, Hector Montijo and Ulysses Reyes. Both Montijo and Reyes
declare, inter alia, they are citizens of New York, consider New
York their home, and intend to remain in New York indefinitely.
Goya maintains the Court made a clear error of law by not
considering the citizenship of Montijo and Reyes and, accordingly,
requests the Court reverse the Memorandum and OTSC and hold that
the Defendants have demonstrated that this Court has subject matter
jurisdiction over this case.
In the Memorandum and OTSC's minimal diversity analysis, the Court
narrowed its focus on the Defendants' inability to demonstrate the
citizenship of Plaintiff Mejias. Relying on the FAC and Notice of
Removal, the Court held that, while the Defendants had sufficiently
established the New Jersey citizenship of Goya, they were unable to
demonstrate anything beyond Mejias's residency. The Court also
noted the Defendants' concession that, based on the allegations in
the FAC, it is impossible to discern Mejias's state of citizenship,
only that it is likely he is not a citizen of New Jersey. The Court
did not consider the declarations of Montijo and Reyes, which were
attached to the Defendants' opposition to the Plaintiffs' Motion to
Remand.
Based upon the declarations of Montijo and Rios, the Court finds
the Defendants have adequately demonstrated the two individuals'
New York citizenship. Having previously determined the Defendants
adequately demonstrated the New Jersey citizenship of Goya, the
Court now finds the Defendants have established minimal diversity
pursuant to CAFA. Moreover, having previously held the Defendants
had satisfied CAFA's class member numerosity and amount in
controversy requirements, the Court now finds the Defendants have
established subject matter jurisdiction in this matter pursuant to
CAFA.
Accordingly, Goya's Motion for Reconsideration is granted, and the
Memorandum and OTSC, and, in particular, its directive for the
parties to conduct limited jurisdictional discovery, is vacated.
Motion to Remand
Having determined the Defendants have adequately demonstrated CAFA
subject matter jurisdiction, the Court will now consider whether an
exception to CAFA applies to this matter and warrants remand. The
Plaintiffs argue two CAFA exceptions warrant remand: the "home
state exception," 28 U.S.C. Section 1332(d)(4)(B) and the "local
controversy exception," 28 U.S.C. Section 1332(d)(4)(A).
In support of remand under the home state exception, the Plaintiffs
assert at least two-thirds of the proposed Class in the SAC both
lived and worked in New Jersey, where the action was originally
filed. Furthermore, the Plaintiffs argue Goya, a New Jersey
citizen, is the primary Defendant in this matter and, in fact,
pursuant to the Plaintiffs' proposed SAC, is the only Defendant in
this case.
In support of remand under the local controversy exception, the
Plaintiffs note (1) "the putative class is primarily comprised of
New Jersey citizens," where the action was filed; (2) Goya is a New
Jersey citizen; (3) "the principal injuries resulting from the
alleged conduct of the Defendants were incurred in New Jersey"; and
(4) no other similar class action has been filed within the three
years preceding this action. The Plaintiffs, accordingly, maintain
remand is required under both CAFA exceptions.
In opposition, the Defendants argue that the Plaintiffs rely on the
wrong complaint. They insist that the Court should base its
determination on the FAC, not the SAC.
Through the FAC, the Plaintiffs sought to represent two separate
nationwide classes of Goya workers. The first class included "all
truck drivers of Defendants who were designated as independent
contractors or owner operators and from whom Defendants unlawfully
withheld wages from by deducting costs and fees associated with
drivers' leasing vehicles, for fuel and maintenance costs,
insurance, trailer rentals and other equipment, administrative
fees, returned and damaged products, and other deductions not
allowed by governing law between July 18, 2013 and the present"
(Nationwide Wage Deduction Class).
The second class included "all truck drivers of Defendants who were
designated as independent contractors or owner operators who were
not paid overtime compensation when they worked more than 40 hours
per week between July 18, 2017 and the present" ("Nationwide
Overtime Class").
The Plaintiffs alternatively sought to represent several
state-specific classes, including (1) the "New Jersey Wage
Deduction Class"; (2) the "New Jersey Overtime Class"; (3) the
"Pennsylvania Wage Deduction Class"; (4) the "Maryland Wage
Deduction Class"; and (5) the "South Carolina Wage Deduction
Class."
Furthermore, the FAC set forth allegations against all the
Defendants. The SAC, on the other hand, only sets forth allegations
against Goya. Moreover, through the SAC, the Plaintiffs no longer
seek to represent the Nationwide Wage Deduction Class or the
Nationwide Overtime Class, or, alternatively, the Pennsylvania Wage
Deduction Class, the Maryland Wage Deduction Class, or the South
Carolina Wage Deduction Class. Rather, the Plaintiffs only seek to
represent the New Jersey Wage Deduction Class and the New Jersey
Overtime Class.
The New Jersey Wage Deduction class includes "all truck drivers who
performed work for Goya in the State of New Jersey and who were
designated as independent contractors or owner operators and from
whom Goya withheld wages by deducting money associated with truck
and equipment rental, truck repairs and maintenance, permits and
licenses, fuel, mileage taxes, fees, tolls, insurance, health
insurance, returned or damaged products, and/or other deductions
set forth in Goya's records, between July 18, 2013 and the
present."
The New Jersey Overtime Class, on the other hand, includes "[a]ll
truck drivers who performed work for Goya in the State of New
Jersey and who were designated as independent contractors or owner
operators, and who were not paid overtime compensation when they
worked over 40 hours in a workweek, at any time between July 18,
2017 and the present."
District Judge Brian R. Martinotti notes that the post-removal SAC,
therefore, involves both a change in named defendants, and a change
in the scope of the putative classes.
Had the SAC's sole deviation from the FAC been the exclusion of all
the Defendants except Goya, the Court would follow the courts in
Castro v. Linden Bulk Transportation LLC, Civ. A. No. 19-20442,
2020 WL 2573288 (D.N.J. Apr. 20, 2020), and Kaufman v. Allstate
N.J. Ins., 561 F.3d 144, 153 (3d Cir. 2009), and analyze the CAFA
exceptions through the lens of the SAC, Judge Martinotti says.
However, Judge Martinotti holds, as the Defendants correctly
assert, the Plaintiffs' moving papers fail to address the
application of either CAFA exception under the FAC. Rather, the
Plaintiffs only address the SAC when arguing remand is appropriate.
Because the Plaintiffs maintain the burden of demonstrating a CAFA
exception applies, and because they fail to address the complaint
necessary to determine whether an exception applies, the Court
finds remand is unwarranted.
Accordingly, the Plaintiffs' Motion to Remand is denied.
Conclusion
For the reasons set forth in the Opinion, Goya's Motion for
Reconsideration is granted, and the Plaintiff's Motion to Remand is
denied. An appropriate order follows.
A full-text copy of the Court's Opinion dated Aug. 30, 2021, is
available at https://tinyurl.com/y3fz9mpu from Leagle.com.
HAWAII: District Court Trims Claims in Abing v. Evers Class Suit
----------------------------------------------------------------
In the lawsuit titled CHESTER NOEL ABING, DENNIS DUANE DESHAW, and
SUSAN KAY BROER-DESHAW, Plaintiffs v. JAMES F. EVERS, JOHN N.
TOKUNAGA, STEPHEN H. LEVINS, LISA P. TONG, MELINDA D. SANCHES,
CATHERINE AWAKUNI COLON, JO ANN UCHIDA TAKEUCHI, MICHAEL J.S.
MORIYAMA, BRUCE B. KIM, BRADLEY R. TAMM, RYAN SUMMERS LITTLE,
REBECCA SALWIN, YVONNE R. SHINMURA, CHARLENE M. NORRIS, ROY F.
HUGHES, GAYLE J. LAU, JEFFREY P. MILLER, PHILIP H. LOWENTHAL,
CLIFFORD NAKEA, BERT I. AYAB, and JEANNTTE H. CASTAGNETTI,
Defendants, Case No. 21-00095 JAO-WRP (D. Haw.), the U.S. District
Court for the District of Hawaii issued an order granting in part
and denying in part:
(1) motion to dismiss the Plaintiffs' complaint filed on
Feb. 16, 2021; and
(2) Defendants Bruce B. Kim, Bradley R. Tamm, Ryan Summers
Little, Rebecca Salwin, Yvonne R. Shinmura, Charlene M.
Norris, Roy F. Hughes, Gayle J. Lau, Jeffrey P. Miller,
Philip H. Lowenthal, Clifford Nakea, The Honorable Bert I.
Ayabe and The Honorable Jeannette H. Castagnetti's
substantive joinder and motion to dismiss with prejudice
complaint for injunctive and declaratory relief and
damages.
Pro se Plaintiffs Chester Noel Abing, Dennis Duane DeShaw, and
Susan Kay Broer-DeShaw are each homeowners, who have faced or are
facing foreclosure in state court proceedings. The Plaintiffs filed
a Verified Class-Action Complaint ("Complaint"), against various
individuals affiliated with Hawaii's Office of Consumer Protection
("OCP") and Office of Disciplinary Counsel ("ODC") and two state
court judges, all of whom allegedly engaged in a far-ranging
conspiracy to unlawfully deprive various homeowners in Hawai'i of
their homes.
Defendants James F. Evers, John N. Tokunaga, Stephen H. Levins,
Lisa P. Tong, Melina D. Sanchez, Catherine Awakuni Colon, Jo Ann M.
Uchida Takeuchi, and Michael J.S. Moriyama (collectively, the "OCP
Defendants") move to dismiss the Plaintiffs' Complaint for lack of
subject matter jurisdiction and failure to state a claim.
Defendants Bruce B. Kim, Bradley R. Tamm, Ryan Summers Little,
Rebecca Salwin, Yvonne R. Shinmura, Charlene M. Norris, Roy F.
Hughes, Gayle J. Lau, Jeffrey P. Miller, Philip H. Lowenthal, and
Clifford Nakea (collectively, the "Disciplinary Defendants"); and
the Honorable Bert I. Ayabe and the Honorable Jeannette H.
Castagnetti (collectively, the "Judge Defendants") substantively
join in the OCP Defendants' Motion and seek dismissal on additional
grounds ("Substantive Joinder and Motion to Dismiss" or
"Substantive Joinder").
The Court elects to decide this matter without a hearing pursuant
to Rule 7.1(c) of the Local Rules of Practice for the U.S. District
Court for the District of Hawaii.
Background
The Plaintiffs are each homeowners whose homes are or have been
subject to foreclosure by "Dummy Corporations" that allegedly
pretended (1) to lend money to homeowners, and (2) to own their
mortgages, when they had no legal interest in the mortgaged
properties. The Plaintiffs have been involved in seven separate
lawsuits against the Dummy Corporations that have initiated
foreclosure proceedings against them. The Plaintiffs allege that
the Judge Defendants wrongfully granted summary judgment to the
respective mortgagees in foreclosure cases involving the
Plaintiffs' respective homes, and that they routinely grant summary
judgment in favor of mortgagees without evidence that the mortgagee
owns the mortgage and associated note.
According to the Plaintiffs, wrongful foreclosures occur because
there are no longer any attorneys in Hawai'i, who are willing and
competent to represent the Defendants in foreclosure actions in a
zealous manner. The various government officials named in the
Complaint (whom the Plaintiffs believe are former employees of
and/or attorneys for the Dummy Corporations and reference in the
Complaint as the "Conspirators" and to whom the Court will refer as
"Defendants") have allegedly entered into a "confederacy to assist
the Dummy Corporations in taking thousands of homes in this
State."
The Defendants allegedly intimidate members of the foreclosure
defense bar by disbarring its members for minor or trumped-up
offenses, threatening to disbar them, subpoenaing their records,
offering to bribe their former clients to complain about them, and
suing them under consumer protection laws.
The Plaintiffs further allege that the Defendants have acted
together to "blacklist" and discriminate against homeowners like
the Plaintiffs, who defend against foreclosure proceedings, by
intervening in foreclosure cases without leave of court,
threatening and intimidating homeowners, harassing them by
subpoenaing their records, assisting the mortgagees' attorneys, and
stealing funds from one of the Plaintiffs' bank accounts.
On Jan. 24, 2013, the ODC Lawyers and OCP Lawyers allegedly
approached attorney Sandra D. Lynch, then an associate at a
foreclosure defense law firm, and ordered her to "steal" 27 of the
firm's clients and then stop working zealously on those clients'
cases. As a result, most of those 27 clients lost their homes to
the Dummy Corporations, and the law firm dissolved. Plaintiffs
Abing and DeShaw were clients of that law firm and, therefore, were
harmed by this sequence of events. The Plaintiffs maintain that the
Supervisors of the OCP Lawyers either authorized the theft of
clients from Lynch's law firm and the subsequent break-up of the
firm, or negligently failed to supervise the OCP Lawyers.
On Dec. 3, 2014, the ODC Lawyers filed a complaint against attorney
Robert L. Stone that the Plaintiffs describe as "malicious and
selective" for the purpose for forcing Stone to resign from the
State bar, thereby, depriving the Plaintiffs of their choice of
counsel and harming them in their efforts to defend against
foreclosure actions.
The OCP Lawyers and ODC Lawyers allegedly threatened attorney R.
Steven Geshell, which caused Geshell to turn on his clients and
file unauthorized and inferior pleadings in foreclosure cases,
including pleadings that defied the Plaintiffs' clear instructions.
The Supervisors of the OCP Lawyers authorized the OCP Lawyers'
conduct or negligently failed to supervise the OCP Lawyers.
On Aug. 30, 2018, the OCP Lawyers intervened without leave of court
in a state court foreclosure proceeding to which Abing was a party.
The OCP Lawyers subpoenaed Abing and his attorney, Keoni Agard, and
questioned them both. The Plaintiffs alleged the OCP Lawyers
threatened to prosecute Abing for an unspecified felony, bullied
him, attempted to bribe him "with a (fake) offer of $10,000," and
ordered him to "discharge his attorney's paralegal assistant" and
stop defending against the foreclosure action. The Plaintiffs
maintain that the OCP Lawyers did this to trick Abing into making
false statements that could be used against him in the foreclosure
action.
The Plaintiffs assert that on Dec. 10, 2018, the OCP Lawyers and
ODC Lawyers threatened attorney Jason B. McFarlin, who had accepted
Plaintiffs as clients, but, pursuant to instructions from the
Defendants, failed to represent them vigorously. The Supervisors of
the OCP Lawyers either authorized the OCP Lawyers' actions or
negligently failed to supervise them properly.
On Dec. 13, 2018, the ODC Lawyers conducted a hearing before the
Disciplinary Board regarding a complaint against attorney Gary V.
Dubin, which complaint the Plaintiffs allege contained trivial and
false accusations. The Plaintiffs allege that the purpose of the
complaint was to disbar Dubin to suppress the foreclosure defense
bar, thereby, depriving the Plaintiffs of their choice of counsel
and harming them in their efforts to defend against foreclosure
actions. On Feb. 13, 2019, the Disciplinary Board Lawyers disbarred
Dubin.
The Plaintiffs contend that on Feb. 8, 2019, the OCP Lawyers again
intervened in Abing's state court case by stealing $800 from his
credit card account to prevent Abing from using that sum to pay his
legal fees, and then stole an additional $500 on March 23, 2019.
The Plaintiffs assert that the Supervisors of the OCP Lawyers
either authorized the OCP Lawyers' conduct or negligently failed to
supervise the OCP Lawyers.
The Plaintiffs allege that on Oct. 28, 2020, the OCP Defendants
sent letters to the Plaintiffs offering to pay large bribes to them
if they would inform and file a false complaint against "their
paralegal assistant" so the OCP Lawyers could show the false
complaints to other Defendants in state court. The Plaintiffs
contend that the purpose of this scheme was to have the paralegal
removed from the Plaintiffs' foreclosure cases and, thereby, block
the Plaintiffs from filing appeals to the Hawai'i Supreme Court.
The payment was never made.
The Plaintiffs further assert that the Judge Defendants work
closely with the other Defendants and award "huge prizes" to the
Dummy Corporations without requiring them to provide evidence of
ownership in foreclosure cases, and that Judge Castagnetti gives
foreclosure attorneys free rein to harass, trick, threaten, and
investigate pro se defendants.
The Plaintiffs allege that the Dummy Corporations forge documents
in order to prevail in foreclosure actions and did so in Abing and
DeShaw's respective foreclosure actions. The Plaintiffs state that
the Defendants, who are charged with protecting consumers, have
taken no action to stop the alleged fraud the Dummy Corporations
are perpetrating.
Procedural History
The Plaintiff commenced the action by filing the Complaint on Feb.
16, 2021, asserting the following claims against all the
Defendants:
* Count I -- Abuse of Power or Malfeasance;
* Count II -- 42 U.S.C. Section 1983: Due Process;
* Count III -- 42 U.S.C. Section 1983: Threatening Homeowners;
* Count IV -- 42 U.S.C. Section 1983: Equal Protection;
* Count V -- 42 U.S.C. Section 1985(2) and (3): Conspiracy to
Deprive Constitutional Rights;
* Count VI -- 42 U.S.C. Section 1983: Denial of Access to
Courts;
* Count VII -- 42 U.S.C. Section 1983: Failure to Intervene;
* Count VIII -- Malicious Prosecution;
* Count IX -- Civil Conspiracy;
* Count X -- Intentional Infliction of Emotional Distress
(IIED); and
* Count XI -- 42 U.S.C. Section 1986: Action for Neglect to
Prevent a Harm.
The Plaintiffs pray for declaratory relief, injunctive relief,
compensatory damages, punitive damages, costs, attorneys' fees, the
appointment of counsel to represent the putative class, and the
appointment of a special master to supervise foreclosure actions
and related activities in state court.
The OCP Defendants filed a motion to dismiss on April 1, 2021. The
Disciplinary Defendants and the Judge Defendants filed a
substantive joinder in the OCP Defendants' Motion on April 19,
2021, and also sought dismissal on additional grounds. The
Plaintiff filed his opposition to both the Motion and the
Substantive Joinder on May 7, 2021. The OCP Defendants, and the
Disciplinary Defendants and Judge Defendants, filed their
respective reply memoranda on May 14, 2021. Pursuant to the Court's
entering order dated June 18, 2021, the parties filed supplemental
memoranda regarding claim preclusion and issue preclusion.
Discussion
For the reasons set forth in the Order, the Court grants in part
and denies in part the OCP Defendants' Motion and the Disciplinary
Defendants and Judge Defendants' Substantive Joinder and Motion to
Dismiss. The Court concludes that:
(1) the Eleventh Amendment bars the federal claims (Counts II
through VII and XI) insofar as those claims seek money
damages;
(2) the State Tort Liability Act prevents Plaintiffs from
asserting state law claims against Defendants in their
official capacities in federal court (Counts I, VIII, IX,
and X);
(3) the Court does not have jurisdiction over claims relating
to the attorney discipline process and, in any event,
Rule 2.8 of the Rules of the Supreme Court of Hawai'i
("RSCH") offers some immunity to the Disciplinary
Defendants (Count VIII);
(4) judicial immunity precludes the claims against the Judge
Defendants (all Counts);
(5) Plaintiffs fail to meet federal pleading standards as to
the Due Process, Denial of Access to Courts, Threatening
Homeowners, Equal Protection, and Failure to Intervene
claims (Counts II, III, IV, VI, and VII); and
(6) Defendants are entitled to qualified immunity as to the
Section 1985 and Section 1986 claims (Counts V and XI).
District Judge Jill A. Otake finds that the State of Hawai'i has
not waived its sovereign immunity with respect to the federal
claims asserted in the Complaint, which include Count II (Due
Process); Count III (Threatening Homeowners); Count IV (Equal
Protection); Count V (Conspiracy to Deprive Constitutional Rights);
Count VI (Denial of Access to Courts); Count VII (Failure to
Intervene); and Count XI (Action for Neglect to Prevent a Harm).
The Court, therefore, dismisses with prejudice Counts II through
VII and Count XI insofar as each seeks money damages, i.e.,
retrospective relief, against the Defendants in their official
capacities, but denies the Motion regarding these counts to the
extent prospective relief is sought.
As the Plaintiffs may not bring state tort claims against the State
in federal court, the Court dismisses without leave to amend Count
I (Abuse of Power or Malfeasance), Count VIII (Malicious
Prosecution), Count IX (Civil Conspiracy), and Count X (IIED) as to
each Defendant in their official capacities.
The Disciplinary Defendants and Judge Defendants argue that the
Court lacks jurisdiction over the Plaintiffs' Complaint because the
Hawai'i Supreme Court has exclusive jurisdiction over attorney
disciplinary proceedings. The Disciplinary Defendants and Judge
Defendants maintain that Plaintiffs' allegations and claims are
based in part on the Disciplinary Defendants' actions and conduct
and have a direct bearing on attorney disciplinary proceedings,
and, as such, the entire Complaint should be dismissed.
The Court, therefore, concludes that it lacks jurisdiction to
review disciplinary proceedings involving attorneys barred in
Hawai'i. However, the allegations in the Complaint involve more
than simply an appeal of disciplinary decisions, and so a wholesale
dismissal of the Complaint is unwarranted based on the Court's lack
of jurisdiction over state attorney disciplinary proceedings.
Nonetheless, the Court lacks jurisdiction over Count VIII, the
Plaintiffs' malicious prosecution claim. In Count VIII, the
Plaintiffs allege that Defendants "caused Attorneys Gary Dubin and
Robert Stone (and unknown other members of the foreclosure-defense
bar) to be subjected to judicial proceedings for which there was
insufficient probable cause." Even assuming the Plaintiffs had
standing to assert a claim for malicious prosecution on behalf of
Dubin, Stone, and other unnamed attorneys--which the Court has not
yet decided--the Court could not adjudicate the Plaintiffs'
malicious prosecution claim without reviewing the merits of the
disciplinary proceedings at issue. The remainder of the Plaintiffs'
claims at least arguably encompasses conduct beyond the
disciplinary proceedings involving Dubin and Stone, Judge Otake
holds.
Count VIII (malicious prosecution) is, therefore, dismissed with
prejudice because the Court lacks jurisdiction to review Hawai'i
attorney disciplinary proceedings.
Judge Otake notes that the plain language of Rule 2.8 precludes
lawsuits for malicious prosecution based on alleged misconduct in
the course of the attorney disciplinary process, citing Kamaka v.
Goodsill Anderson Quinn & Stifel, 117 Hawai'i 92, 107, 176 P.3d 91,
106 (2008). As such, Count VIII (Malicious Prosecution) is
dismissed with prejudice as to the Disciplinary Defendants on this
ground as well.
The Court is also persuaded that Rule 2.8 provides the Disciplinary
Defendants, each of whom are employees and officers specifically
referenced in the rule, with immunity from suit for their behavior
committed in the execution of official duties. However, the
Disciplinary Defendants are not entitled to blanket immunity from
any possible claim Plaintiffs may assert because the Plaintiffs
have at least arguably alleged facts relating to conduct taken by
the Disciplinary Defendants outside of their official duties. The
Court, therefore, declines at this stage to conclude that Rule 2.8
confers immunity to the Disciplinary Defendants for the other
counts, which are dismissed for other reasons in any event.
The Plaintiffs' allegations regarding the Judge Defendants relate
to their judicial conduct, namely their handling of the foreclosure
docket, and not to any administrative, legislative, and executive
functions that they may have performed, nor other extrajudicial
conduct. And the Plaintiffs have not alleged that the Judge
Defendants violated any declaratory decree.
The Judge Defendants are, therefore, entitled to absolute judicial
immunity. Because the Plaintiffs' allegations against the Judge
Defendants exclusively pertain to their actions within their
judicial capacities, the Court dismisses with prejudice all federal
and state law claims against the Judge Defendants.
The Defendants argue that the Rooker-Feldman doctrine prevents the
Court from exercising jurisdiction over the Complaint because the
Complaint amounts to a de facto appeal of the Hawai'i Supreme
Court's Order Allowing Robert Stone to Resign and because the
Plaintiffs' claims are inextricably intertwined with the state
court decision at issue.
Focusing on the relief sought here--including a request that the
Court appoint a special master to supervise state foreclosure
actions--it is clear that the case does not amount to an appeal of
the Hawai'i Supreme Court's Order Allowing Robert Stone to Resign,
Judge Otake observes. She notes that the Plaintiffs' primary
challenge is to the Defendants' execution of state foreclosure
proceedings, not Stone's court-permitted resignation from the bar.
The Court, therefore, rejects Defendants' Rooker-Feldman
arguments.
The Court ordered the parties to brief the issue of whether United
States District Judge Derrick K. Watson's Order Granting in Part
and Denying in Part Plaintiff/Counterclaim Defendant's Motion to
Dismiss Counterclaim, Strike Jury Demand, and Strike Portions of
the Answer in Hawai'i v. Stone, Case No. 19-cv-00272-DKW-RT (D.
Haw.) ("Stone"), see id., 2019 WL 5058910 (D. Haw. Oct. 8, 2019)
("Stone I"), aff'd, 830 F. App'x 964 (9th Cir. 2020), has
preclusive effect on any of the claims in the Complaint under the
doctrines of claim preclusion/res judicata and/or issue
preclusion/collateral estoppel.
The Court applies federal common law in determining the preclusive
effect of the judgment arising out of Judge Watson's ruling in
Stone I because that judgment is a federal-court judgment.
The Court concludes that the Plaintiffs' claims are not barred by
the doctrine of claim preclusion.
While the Plaintiffs certainly object to the discipline to which
Stone was subjected, at this stage, the Court cannot find that the
Plaintiffs bring this action as the representative of Stone, their
former attorney, or that the Plaintiffs are acting as Stone's agent
in this action, Judge Otake states. The Court, therefore, concludes
that neither claim preclusion nor issue preclusion bars the
Plaintiffs' Complaint or any portion thereof. The Court's ruling,
to be clear, is without prejudice. If the Plaintiffs put forth an
amended complaint that cures the other defects identified in this
Order, the Defendants may raise either defense in a subsequent
motion.
Because the Plaintiffs do not have a right to counsel (or a
non-lawyer), it cannot be the basis for a claim of denial of access
to the courts, Judge Otake holds. Thus, having failed to identify a
constitutionally protected property or liberty interest, the
Plaintiffs do not state a due process claim.
Counts II and VI are dismissed with prejudice, Judge Otake rules.
She explains that amendment of these claims would be futile because
the Plaintiff's theory that they were deprived counsel cannot serve
as a basis for a plausible procedural due process or substantive
due process claim or a claim of denial of access to the courts.
Count III is also dismissed with prejudice, Judge Otake holds.
Amendment would be futile because neither the Ninth Circuit nor the
Supreme Court has recognized a remedy under Section 1983 for
threats or harassment.
Judge Otake finds that the Plaintiffs have not alleged that the
Defendants engaged in any affirmative efforts to provide Dummy
Corporations with counsel nor is there any law providing for the
appointment of counsel to plaintiffs in foreclosure actions or to
corporations generally. The Plaintiffs, therefore, fail to state an
equal protection claim.
Because it is theoretically possible that the Plaintiffs could
plead facts that give rise to an equal protection claim, Count IV
is dismissed with leave to amend so that the Plaintiffs can cure
the defects identified in this Order, Judge Otake rules.
In Count VII, the Plaintiffs assert that the Defendants violated
Section 1983 when they failed to intervene in order to prevent each
other from violating their constitutional rights.
Here, the Plaintiffs have alleged no facts showing that there was a
special relationship between themselves and any of the Defendants,
Judge Otake finds. Nor have the Plaintiffs alleged facts showing
that the State placed the Plaintiffs in danger by acting with
deliberate indifference to a known or obvious danger. Count VII,
therefore, fails to state a claim because the Defendants cannot be
liable for its omissions in the absence of an affirmative duty to
act.
Because it is theoretically possible that the Plaintiffs could
plead facts giving rise to a duty to intervene and facts showing a
breach of that duty, Count VII is dismissed with leave to amend.
In Count V, the Plaintiffs allege that the various defendants
conspired to deter the Plaintiffs by intimidation and threat from
testifying freely, fully, and truthfully and that the Defendants
conspired to deny the Plaintiffs the equal protection of law in
state court in violation of 42 U.S.C. Sections 1985(2) and (3). The
Court need not reach the merits of the Plaintiffs' Section 1985
claim because qualified immunity and a separate defense raised by
the OCP Defendants--the intracorporate-conspiracy
doctrine--together prevent the Plaintiffs from pleading a viable
claim under Section 1985 against the Defendants.
As each Defendant is an agent of the State of Hawai'i, each is
entitled to qualified immunity in their individual capacities for
claims brought under Section 1985(2) or (3). For these reasons, it
is not "sufficiently clear that a reasonable official would
understand" that he or she was violating the rights guaranteed by
these statutes. Count V is, therefore, dismissed with prejudice.
Amendment would be futile because the Defendants are entitled to
qualified immunity on this claim as state agents.
In Count XI, the Plaintiffs assert a claim for action for neglect
to prevent a harm under 42 U.S.C. Section 1986. However, a claim
under Section 1986 "depends on the existence of a claim under
Section 1985," Judge Otake notes, citing Mollnow v. Carlton, 716
F.2d 627, 632 (9th Cir. 1983) (citing Williams v. St. Joseph Hosp.,
629 F.2d 448, 452 (7th Cir. 1980)). As the Defendants are entitled
to qualified immunity on the Plaintiffs' Section 1985 claim, they
are further entitled to qualified immunity as to the Plaintiffs'
Section 1986 claim. Count XI is, therefore, dismissed with
prejudice.
The OCP Defendants argue that each of the Plaintiffs' claims are
barred by a two-year statute of limitations, with the exception of
the Plaintiffs' 42 U.S.C. Section 1986 claim, which outlines a
one-year statute of limitations.
The Court agrees with the OCP Defendants' calculation of the
applicable limitations periods. The Plaintiffs' tort claims against
the Defendants in their individual capacities is governed by the
two-year statute of limitations for tort actions in HRS Section
657-7. The Plaintiffs' tort claims against the Defendants in their
official capacities are governed by the two-year statute of
limitations in the State Tort Liability Act. The Plaintiffs' claims
under 42 U.S.C. Sections 1983 and 1985 are also subject to Hawaii's
two-year statute of limitations for personal injury actions.
For the reasons detailed in the Order, the Plaintiffs have not yet
stated a viable claim against any the Defendants, Judge Otake
holds. Should the Plaintiffs choose to file an amended complaint,
the Plaintiffs will be unable to state a viable claim if the claim
accrued prior to Feb. 16, 2019 (two years prior to the date of the
Complaint).
The Plaintiffs invoke federal question and supplemental
jurisdiction for their federal and state claims. Aside from the
Plaintiffs' federal claims and their malicious prosecution claim,
which claims the Court has dismissed, the Plaintiffs assert state
law claims for abuse of power or malfeasance (Count I), civil
conspiracy (Count IX), and intentional infliction of emotional
distress (Count X), each of which the Court has dismissed as to
each Defendant in their official capacities.
Because the Court's jurisdiction over these remaining state law
claims against the Defendants in their individual capacities
(except for claims against the Judge Defendants, which are all
dismissed with prejudice) is supplemental, see 28 U.S.C. Section
1367(a), and the Plaintiffs have yet to present a viable federal
claim, the Court declines to address the remaining state law claims
at this time.
Conclusion
For the reasons set forth in the Order, the Court grants in part
and denies in part the OCP Defendants' Motion to Dismiss and the
Disciplinary Defendants and Judge Defendants' Substantive Joinder
and Motion to Dismiss as follows:
-- All claims against the Judge Defendants are dismissed with
prejudice;
-- Count I (Abuse of Power or Malfeasance) is dismissed
without leave to amend as to the Defendants in their
official capacities;
-- Count II (42 U.S.C. Section 1983: Due Process) is dismissed
with prejudice;
-- Count III (42 U.S.C. Section 1983: Threatening Homeowners)
is dismissed with prejudice;
-- Count IV (42 U.S.C. Section 1983: Equal Protection) is
dismissed with prejudice as to all Defendants in their
official capacities to the extent it seeks money damages
and is otherwise dismissed with leave to amend;
-- Count V (42 U.S.C. Section 1985(2) and (3): Conspiracy to
Deprive Constitutional Rights) is dismissed with prejudice;
-- Count VI (42 U.S.C. Section 1983: Denial of Access to
Courts) is dismissed with prejudice;
-- Count VII (42 U.S.C. Section 1983: Failure to Intervene) is
dismissed with prejudice as to all Defendants in their
official capacities to the extent it seeks money damages
and otherwise dismissed with leave to amend;
-- Count VIII (Malicious Prosecution) is dismissed with
prejudice;
-- Count IX (Civil Conspiracy) is dismissed without leave to
amend as to Defendants in their official capacities;
-- Count X (IIED) is dismissed without leave to amend as to
Defendants in their official capacities; and
-- Count XI (42 U.S.C. Section 1986: Action for Neglect to
Prevent a Harm) is dismissed with prejudice.
In sum, the Court precludes the Plaintiffs from amending the
Complaint to rehabilitate Counts II, III, V, VI, VIII, and XI.
Counts I, IX, and X may not be brought in federal court against the
Judge Defendants nor against any of the other Defendants in their
official capacities and the Court declines to address at this time
the viability of those claims against the non-Judge Defendants in
their personal capacities. The Plaintiffs may amend Counts IV and
VII but they may not: (1) assert those claims against the Judge
Defendants; (2) seek money damages or other retrospective relief
for those counts; or (3) assert any claim in violation of the
statute of limitations.
The Plaintiffs may file an amended complaint by Sept. 30, 2021,
curing the defects identified in the Order. The Plaintiffs may not
add parties or claims without obtaining leave of court. Failure to
comply with this Order may result in the dismissal of this action.
A full-text copy of the Court's Order dated Aug. 30, 2021, is
available at https://tinyurl.com/y9a87r4b from Leagle.com.
HOME DEPOT: Appiah Suit Seeks to Certify Two Classes
----------------------------------------------------
In the class action lawsuit captioned as BRENDA APPIAH, KWADWO
APPIAH, v. HOME DEPOT USA, INC.; HOME DEPOT PRODUCT AUTHORITY, LLC,
Case No. 3:20-cv-00489-VLB (D. Conn.), the Plaintiff Brenda Appiah
asks the Court to enter an order:
1. certifying this case as a class action pursuant to Fed. R.
Civ. P. 23(a), (b)(1), (b)(2), and (b)(3), on behalf of
two classes of individuals defined as:
-- The National Class:
"All persons in the United States who purchased and/or
were harmed by Defendant's Products"; and
-- The Connecticut Class:
"All persons in the State of Connecticut who were
harmed by, or purchased Defendant's Products;"
Excluded from the National and Connecticut Subclasses
are Defendant and their subsidiaries and affiliates;
all persons who make a timely election to be excluded
from the class; governmental entities; and the judge to
whom this case is assigned and any immediate family
which permits district courts to wait until 'an early
practicable time' before ruling on a motion to certify
a members thereof.
2. appointing her as the representative of the Class; and
3. appointing her attorneys as Class Counsel.
This is a class action lawsuit through which Plaintiff,
individually and on behalf of the described Classes, seeks damages
and equitable relief from the the Defendants as named above.
Plaintiff's Classes consist of all persons in the State of
Connecticut and the United States who purchased Defendant's
Products.
The Plaintiff has alleged that the Defendant harmed consumers by
marketing, advertising and selling floor tiles as ideal for use in
bathrooms and kitchens when such product was inherently dangerous
and slippery when wet. The Defendants' conduct caused Plaintiffs
and Class members to purchase the product, which was not as
represented and, which they would not have purchased but for the
misleading statements made by Defendant. All class members have a
common interest in seeking monetary and equitable relief for the
defective products they purchased.
A copy of the Plaintiff's motion to certify class dated Sept. 8,
2021 is available from PacerMonitor.com at https://bit.ly/3tE4jnY
at no extra charge.[CC]
The Plaintiff Brenda Appiah is represented by:
Jeremiah N. Ollennu, Esq.
ORTHOPAEDIC INJURY LAWYERS, LLC
10 Grand Street, 2nd Floor
Hartford, CT 06106
Telephone: (860) 200-8839
Facsimile: (860) 218-2158
E-mail: jeremiah.ollennu@ctlawprime.com
The Defendants are represented by:
Cullen W. Guilmartin, Esq.
GORDON & REES
95 Glastonbury Blvd., Ste. 206
Glastonbury, CT 06033
Facsimile: (860)560-0185
E-mail: cguilmartin@grsm.com
HYRECAR INC: Robbins Geller Reminds of October 26 Deadline
----------------------------------------------------------
Robbins Geller Rudman & Dowd LLP filed a class action lawsuit
charging HyreCar Inc. (NASDAQ: HYRE) and certain of its executives
with violations of the Securities Exchange Act of 1934 and seeking
to represent purchasers or acquirers of HyreCar securities between
May 14, 2021 and August 10, 2021, inclusive (the "Class Period").
The HyreCar class action lawsuit (Baron v. HyreCar Inc., No.
21-cv-06918) is pending in the Central District of California and
is assigned to Judge Percy Anderson.
If you wish to serve as lead plaintiff of the HyreCar class action
lawsuit, please provide your information by clicking here. You can
also contact attorney J.C. Sanchez of Robbins Geller by calling
800/449-4900 or via e-mail at jsanchez@rgrdlaw.com. Lead plaintiff
motions for the HyreCar class action lawsuit must be filed with the
court no later than October 26, 2021.
The plaintiff is represented by Robbins Geller, which has extensive
experience in prosecuting investor class actions including actions
involving financial fraud. You can view a copy of the complaint by
clicking here.
CASE ALLEGATIONS: The HyreCar class action lawsuit alleges that,
throughout the Class Period, defendants made false and misleading
statements and failed to disclose that: (i) HyreCar had materially
understated its insurance reserves; (ii) HyreCar had systematically
failed to pay valid insurance claims incurred prior to the Class
Period; (iii) HyreCar had incurred significant expenses
transitioning to its new third-party insurance claims administrator
and processing claims incurred from prior periods; (iv) HyreCar had
failed to appropriately price risk in its insurance products and
was experiencing elevated claims incidence as a result; (v) HyreCar
had been forced to dramatically reform its claims underwriting,
policies, and procedures in response to unacceptably high claims
severity and customer complaints; and (vi) as a result, HyreCar's
operations and prospects were misrepresented because HyreCar was
not on track to meet the financial estimates provided to investors
during the Class Period, and such estimates lacked a reasonable
basis in fact, including HyreCar's purported gross margin, earnings
before interest, taxes, depreciation, and amortization ("EBITDA"),
and net loss trajectories.
On August 10, 2021, HyreCar announced deeply disappointing results
for the quarterly period ended June 30, 2021 ("Q2 2021"), including
net losses of $9.3 million compared to losses of $3.8 million in
the same period the prior year. Furthermore, HyreCar's adjusted
EBITDA loss for Q2 2021 was $7.1 million (four times higher than
the $1.7 million adjusted EBITDA loss experienced in the second
quarter of 2020) and its gross profit for Q2 2021 was just $0.8
million (less than one third HyreCar's gross profit in the second
quarter of 2020), with a gross profit margin of just 24%.
Contemporaneously with the release, HyreCar disclosed that HyreCar
had incurred skyrocketing costs of revenue during the quarter
primarily as a result of significantly higher insurance claims
incidence – including claims before March 31, 2021 "in excess of
the reserves." During HyreCar's earnings call, executives revealed
that HyreCar had been forced to revamp its claims processes and
procedures and improve its risk price adjustments for policies
issued by HyreCar. And when asked whether HyreCar was actually on
track to achieve 45% to 50% gross margins in the near term as
previously represented, HyreCar's CFO essentially withdrew this
goal, calling it a "shoot for the sky" aim and stating that
"shooting for margin upwards of 40%" was more realistic. On this
news, the price of HyreCar stock fell nearly 50%, damaging
investors.
THE LEAD PLAINTIFF PROCESS: The Private Securities Litigation
Reform Act of 1995 permits any investor who purchased HyreCar
securities during the Class Period to seek appointment as lead
plaintiff in the HyreCar class action lawsuit. A lead plaintiff is
generally the movant with the greatest financial interest in the
relief sought by the putative class who is also typical and
adequate of the putative class. A lead plaintiff acts on behalf of
all other class members in directing the HyreCar class action
lawsuit. The lead plaintiff can select a law firm of its choice to
litigate the HyreCar class action lawsuit. An investor's ability to
share in any potential future recovery of the HyreCar action
lawsuit is not dependent upon serving as lead plaintiff.
ABOUT ROBBINS GELLER RUDMAN & DOWD LLP: With 200 lawyers in 9
offices nationwide, Robbins Geller Rudman & Dowd LLP is the largest
U.S. law firm representing investors in securities class actions.
Robbins Geller attorneys have obtained many of the largest
shareholder recoveries in history, including the largest securities
class action recovery ever -- $7.2 billion -- in In re Enron Corp.
Sec. Litig. The 2020 ISS Securities Class Action Services Top 50
Report ranked Robbins Geller first for recovering $1.6 billion for
investors last year, more than double the amount recovered by any
other securities plaintiffs' firm. Please visit
http://www.rgrdlaw.comfor more information.
Attorney advertising.
Past results do not guarantee future outcomes.
Services may be performed by attorneys in any of our offices.
Contact:
Robbins Geller Rudman & Dowd LLP
655 W. Broadway, San Diego, CA 92101
J.C. Sanchez, 800-449-4900
jsanchez@rgrdlaw.com [GN]
HYRECAR INC: Rosen Law Firm Reminds of October 26 Deadline
----------------------------------------------------------
WHY: Rosen Law Firm, a global investor rights law firm, reminds
purchasers of the securities of HyreCar Inc. (NASDAQ: HYRE) between
May 14, 2021 and August 10, 2021, inclusive (the "Class Period"),
of the important October 26, 2021 lead plaintiff deadline.
SO WHAT: If you purchased HyreCar securities during the Class
Period you may be entitled to compensation without payment of any
out of pocket fees or costs through a contingency fee arrangement.
WHAT TO DO NEXT: To join the HyreCar class action, go to
http://www.rosenlegal.com/cases-register-2152.htmlor call Phillip
Kim, Esq. toll-free at 866-767-3653 or email pkim@rosenlegal.com or
cases@rosenlegal.com for information on the class action. A class
action lawsuit has already been filed. If you wish to serve as lead
plaintiff, you must move the Court no later than October 26, 2021.
A lead plaintiff is a representative party acting on behalf of
other class members in directing the litigation.
WHY ROSEN LAW: We encourage investors to select qualified counsel
with a track record of success in leadership roles. Often, firms
issuing notices do not have comparable experience, resources or any
meaningful peer recognition. Be wise in selecting counsel. The
Rosen Law Firm represents investors throughout the globe,
concentrating its practice in securities class actions and
shareholder derivative litigation. Rosen Law Firm has achieved the
largest ever securities class action settlement against a Chinese
Company. Rosen Law Firm was Ranked No. 1 by ISS Securities Class
Action Services for number of securities class action settlements
in 2017. The firm has been ranked in the top 4 each year since 2013
and has recovered hundreds of millions of dollars for investors. In
2019 alone the firm secured over $438 million for investors. In
2020, founding partner Laurence Rosen was named by law360 as a
Titan of Plaintiffs' Bar. Many of the firm's attorneys have been
recognized by Lawdragon and Super Lawyers.
DETAILS OF THE CASE: According to the lawsuit, defendants
throughout the Class Period made false and/or misleading statements
and/or failed to disclose that: (1) HyreCar had materially
understated its insurance reserves; (2) HyreCar had systematically
failed to pay valid insurance claims incurred prior to the Class
Period; (3) HyreCar had incurred significant expenses transitioning
to its new third-party insurance claims administrator and
processing claims incurred from prior periods; (4) HyreCar had
failed to appropriately price risk in its insurance products and
was experiencing elevated claims incidence as a result; (5) HyreCar
had been forced to dramatically reform its claims underwriting,
policies and procedures in response to unacceptably high claims
severity and customer complaints; and (6) as a result of the
foregoing, HyreCar's operations and prospects were misrepresented
because the Company was not on track to meet the financial
estimates provided to investors during the Class Period, and such
estimates lacked a reasonable basis in fact, including HyreCar's
purported gross margin, EBITDA and net loss trajectories. When the
true details entered the market, the lawsuit claims that investors
suffered damages.
To join the HyreCar class action, go to
http://www.rosenlegal.com/cases-register-2152.htmlor call Phillip
Kim, Esq. toll-free at 866-767-3653 or email pkim@rosenlegal.com or
cases@rosenlegal.com for information on the class action.
No Class Has Been Certified. Until a class is certified, you are
not represented by counsel unless you retain one. You may select
counsel of your choice. You may also remain an absent class member
and do nothing at this point. An investor's ability to share in any
potential future recovery is not dependent upon serving as lead
plaintiff.
Attorney Advertising. Prior results do not guarantee a similar
outcome.
Contact Information:
Laurence Rosen, Esq.
Phillip Kim, Esq.
The Rosen Law Firm, P.A.
275 Madison Avenue, 40th Floor
New York, NY 10016
Tel: (212) 686-1060
Toll Free: (866) 767-3653
Fax: (212) 202-3827
lrosen@rosenlegal.com
pkim@rosenlegal.com
cases@rosenlegal.com
www.rosenlegal.com [GN]
INSTRUCTURE HOLDINGS: Bid to Junk Oklahoma Suit Pending
-------------------------------------------------------
Instructure Holdings, 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 motion to dismiss
the class action suit initiated by Oklahoma Law Enforcement
Retirement System and Q. Wade Billings, is pending.
In February 2021, Oklahoma Law Enforcement Retirement System and Q.
Wade Billings filed a class action lawsuit against Instructure
Holdings, LLC, certain Thoma Bravo entities and certain directors
and officers of Predecessor, relating to the Take Private
Transaction.
The complaint alleges that such directors and officers breached
their fiduciary duties in connection with the Take Private
Transaction, and that Instructure Holdings, LLC and Thoma Bravo
aided and abetted such breaches.
Plaintiffs seek damages of an unidentified amount, interest, and
attorneys' and experts' fees and expenses.
The defendants moved to dismiss the complaint on May 3, 2021.
Instructure said, "We do not believe these claims have merit and
intend to vigorously defend against them."
Instructure Holdings, Inc. operates as a holding company. The
Company, through its subsidiaries, provides learning management
system dedicated to elevating student success, amplifying the power
of teaching, and inspiring everyone to learn together.
JOHNSON & JOHNSON: Faces Neutrogena Sunscreen Recall Class Action
-----------------------------------------------------------------
Alonso Krangle, LLP disclosed that in the wake of July's sunscreen
recall, Johnson & Johnson now finds itself being sued by multiple
defendants in nationwide class-action lawsuits. The lawsuits
against Johnson & Johnson Consumer, Inc. stem from the presence of
the carcinogen benzene in some of Johnson & Johnson's most trusted
sunscreens, Neutrogena and Aveeno.
One of the lawsuits against Johnson & Johnson (J & J) was filed on
July 14, 2021, in the U.S. District Court for the Northern District
of California and names Johanna Dominguez and Sharron Meijer as
lead plaintiffs. People from around the country are joining the
class action, seeking damages from J & J.
WHY DID JOHNSON & JOHNSON RECALL SUNSCREEN?
In July, J & J recalled all lots of five of its aerosol sunscreen
products sold under the Neutrogena and Aveeno labels-all SPF levels
and all sizes. These products were recalled:
-- Neutrogena Beach Defense aerosol sunscreen
-- Neutrogena Cool Dry Sport aerosol sunscreen
-- Neutrogena Invisible Daily defense aerosol sunscreen
-- Neutrogena Ultra Sheer aerosol sunscreen
-- Aveeno Protect + Refresh aerosol sunscreen
The recall came after Valisure issued a report that its testing
revealed the presence of benzene, which is classified as a human
carcinogen, in a long list of sunscreen products. J & J
subsequently issued a voluntary recall of the products above out of
an abundance of caution. J & J also began an internal investigation
into the cause of the benzene contamination, as it is "not an
ingredient in any" of their sunscreen products.
WHY IS BENZENE DANGEROUS?
Benzene is a chemical found in gasoline and oil. It is often used
as a solvent to make plastic, resin, rubber, drugs, dyes,
detergents, and lubricants. Tobacco smoke also contains benzene.
The chemical can cause harm through inhalation, exposure to the
skin, and ingestion. The effects of benzene can vary depending on
the level of exposure and method of exposure.
Short-term symptoms of benzene exposure can include dizziness,
shortness of breath, vomiting, confusion, unconsciousness, and even
death. The potential long-term cancer-causing effects of benzene
exposure are what has consumers angry at J & J.
Benzene is a known carcinogen with a proven link to blood cancers
such as leukemia, lymphoma, and myeloma. Exposure to benzene can
cause cancer, anemia and adversely affect your immune system
because, according to the Centers for Disease Control and
Prevention (CDC), it causes your cells "not to work correctly."
There is also evidence that women who inhale certain levels of
benzene can experience irregular menstrual cycles and find their
ovaries shrinking. Studies show that when pregnant animals inhale
benzene, they give birth to fetuses with low birth rates, delayed
bone formation, and damaged bone marrow.
COMPLAINT ALLEGES JOHNSON & JOHNSON SHOULD HAVE TOLD CONSUMERS
ABOUT DANGERS OF BENZENE IN SUNSCREEN
The plaintiffs in the lawsuits against J & J allege, among other
things, that the company falsely advertised that the sunscreens
were safe and effective, in violation of California and New York
Laws. One of the complaints seeks certification of two classes- A
nationwide sub-class and a New York sub-class. It is important to
note that this class action EXCLUDES plaintiffs who allege the
sunscreen caused them bodily harm/injury. There might be other
lawsuits against J & J that seek damages for physical injuries
allegedly caused by the benzene in their recalled sunscreen
products.
J & J's marketing campaigns, including commercials and labels for
its Neutrogena and Aveeno sunscreen products, never mention the
risk of benzene exposure from using them. J & J has. Instead, the
complaint explains, gone out of their way to tell consumers these
products are doctor recommended and are healthier, more effective
options than other brands. The plaintiffs claim that, but for the
marketing of these products, they would not have purchased the
sunscreens which were recalled.
The complaint specifically alleges that J & J violated a slew of
N.Y. and C.A. consumer laws against deceptive or false advertising
and/or marketing, laws against unlawful business practices, and
public policy.
OUR LAWYERS ARE REVIEWING CLAIMS RELATED TO JOHNSON & JOHNSON
RECALLED SUNSCREEN
If you have concerns about the safety of your sunscreen spray or
lotion, you can learn more by visiting the website of the Food and
Drug Administration. You can also speak to a medical professional
about sun care products that do not contain high levels of benzene
or high levels of other dangerous chemicals. Sunscreen can be
critical to maintaining the overall health of your skin and
preventing certain cancers.
At Alonso Krangle, LLP, our lawyers are reviewing injury claims
related to J & J's sunscreen recall. If you suffered personal
injuries that might be the result of benzene exposure, call us to
find out if you are eligible to file a lawsuit. You might be
eligible to participate in the national class-action lawsuit or
file an individual product liability claim.
Call Alonso Krangle, LLP, at 800-403-6191 to schedule a free
consultation with our experienced product recall lawyers. Find out
about your legal rights to collect compensation from Johnson &
Johnson because of sunscreen containing benzene. [GN]
JOHNSON & JOHNSON: Reinkraut Sues Over Unsafe Sunscreen Products
----------------------------------------------------------------
Jacob Reinkraut, on behalf of himself, and a class of similarly
situated individuals v. JOHNSON & JOHNSON CONSUMER, INC. and
JOHNSON & JOHNSON, Case No. MID-L-005157-21 (N.J. Super. Ct.,
Middlesex Cty., Sept. 1, 2021) is brought against the Defendants
because certain sunscreen products manufactured, marketed,
distributed, and sold by JJCI under the brand names "Aveeno" and
"Neutrogena" ("Products") contain dangerous and unacceptable levels
of benzene, a known human carcinogen.
According to the complaint, the Plaintiff and the Class paid for
suncare products without being informed that such products may
contain dangerous levels of benzene. Products with known
carcinogens are generally avoided by consumers and are perceived as
undesirable and not worth their price. The Plaintiff and the
Classes were deprived of the benefit of their bargain and/or were
materially overcharged for the Products.
The Defendants' actions evidence lack of good faith, honesty in
fact and fair dealing so as to constitute an unconscionable
commercial practice, in violation of the New Jersey Consumer Fraud
Act. As a proximate result of these violations of the Consumer
Fraud Act, Plaintiff suffered ascertainable economic loss,
including the purchase price of the product, says the complaint.
The Plaintiff is an individual natural person and a purchaser of
the Products.
The Defendants were engaged in the business of designing,
developing, manufacturing, producing, testing, packaging,
promoting, marketing, distributing, labeling, and/or selling the
Product.[BN]
The Plaintiff is represented by:
Olimpio Lee Squitieri
SQUITIERI & FEARON, LLP
424 Madison Avenue, 3rd Floor
New York, NY 10017
Phone: (212) 421-6492
Email: lee@sfclasslaw.com
- and -
Joseph R. Santoli, Esq.
340 Devon Court
Ridgewood, New Jersey 07450-1810
Phone: (201) 926-9200
Email: jsantoli@santolilaw.com
JUST A SLICE: Wins Initial Settlement Approval in McLeod Class Suit
-------------------------------------------------------------------
The U.S. District Court for the Middle District of North Carolina
issued a preliminary approval of the parties' settlement agreement
in the lawsuit captioned SAVANNAH McLEOD, individually and on
behalf of similarly situated persons, Plaintiff v. JUST A SLICE
PIZZA LLC d/b/a "Domino's Pizza," WOW Pizza LLC and MICHAEL TINGEN,
Defendants, Case No. 1:20CV295 (M.D.N.C.).
The Joint Motion for Preliminary Approval of the Parties'
Settlement and Release Agreement, Notice of Class and Collective
Action Settlement ("Class Notice") and Consent to Join Form ("Claim
Form") was filed by Defendants Just A Slice Pizza LLC d/b/a
"Domino's Pizza," WOW Pizza LLC and Michael Tingen.
Plaintiff Savannah McLeod, on behalf of herself and the Settlement
Class, and the Defendants have entered into a Settlement and
Release Agreement ("Settlement Agreement"), which is intended to
resolve claims asserted in this action by the Plaintiff.
The Court, having reviewed the Proposed Order, the Settlement
Agreement, and Declaration by the Plaintiff's counsel ("Forester
Declaration"), finds that the Settlement Agreement and defined
class are appropriate for preliminary approval and certification.
While the proposed Settlement Agreement preliminarily appears to be
fair, reasonable, and adequate, the Court is unable to make a final
determination until the Court is provided with information
regarding the number of members of the Settlement Class, and the
amount owed to each member.
District Judge Loretta C. Biggs notes that a hearing on the
fairness, reasonableness, and adequacy of the Settlement Agreement
should be held, after notice to the Settlement Class, to confirm
that it meets this standard prior to a determination of whether a
Final Order and Judgment should be entered in this Lawsuit.
Judge Biggs grants the Joint Motion for Preliminary Approval of
Settlement Agreement, subject to the terms and conditions set forth
in this Memorandum Opinion and Order.
A. Class Certification for Settlement Purposes Only
The Court has jurisdiction over the subject matter of this action,
including the claims asserted, the Plaintiff, the members of the
proposed Fair Labor Standards Act ("FLSA") Collective ("Settlement
Collective Action") and proposed Rule 23 Settlement Class
("Settlement Class"), the Defendant, and the implementation and
administration of the Settlement Agreement.
The Settlement Agreement is preliminarily approved, as it appears
fair, reasonable, and adequate within the meaning of Fed. R. Civ.
P. 23, subject to final consideration thereof at the Final Approval
Hearing. This approval, however, is contingent upon the Court
finding that the Settlement Agreement is fair, reasonable and
adequate after receiving information regarding the size of the
Settlement Class and the amount owed to each individual in the
Settlement Class.
Based upon the submissions of the parties, and for purposes of this
settlement only, the Court conditionally makes several findings,
including the fact that the members of the Classes defined in the
Settlement Agreement are so numerous as to make joinder
impracticable, and there are questions of law and fact common to
the Classes, and such questions predominate over any questions
affecting only individual Class Members.
Accordingly, the Court conditionally certifies the following
Settlement Collective Action pursuant to Section 216(b) of the
FLSA, for settlement purposes only, in accordance with the terms of
the Settlement Agreement:
FLSA Class:
All delivery drivers who worked for Defendants during the
Release Period.
On the basis of the findings set forth here, the Court
conditionally certifies the following Settlement Class pursuant to
pursuant to Fed. R. Civ. P. 23 for settlement purposes only in
accordance with the terms of the Settlement Agreement:
NC State Law Class:
All delivery drivers who worked for Defendants during the
Release Period.
B. Class Counsel and Class Representative
Finding that the factors of Rule 23(g) have been satisfied for the
purpose of settlement only, the Court appoints Jesse H. Forester,
Esq., of Forester Haynie PLLC as Class Counsel for the Settlement
Class. Any member of the Settlement Class who does not elect to be
excluded may, but need not, enter an appearance through his or her
own attorney. Settlement Class members who do not enter an
appearance through their own attorneys will be represented by Class
Counsel.
For the purposes of settlement only, the Court further finds that
named Plaintiff McLeod is an adequate Class Representative.
C. Preliminary Approval
The Settlement Agreement is preliminarily approved as describing a
settlement that is within the range of settlements that the Court
would find to be fair, reasonable and adequate, subject to the
condition of the Court receiving more information regarding the
size of the Settlement Class and the amount owed to each
individual.
The Court finds that the Settlement Agreement resulted from
lengthy, intensive, arm's-length negotiations among the parties,
through counsel.
D. Notice to Settlement Classes, Opt-In Procedure, and Appointment
of Settlement Administrator
The Court approves as to form and content the Notice and Claim
Form, attached as an Exhibit to the Settlement Agreement.
The manner and forms of Notice to be sent to members of the
Putative Settlement Class set forth in Section IV of the Settlement
Agreement are approved and the provisions thereof are hereby
incorporated into this Order so that upon entry of this Order, the
Parties are directed to ensure that the Notice is disseminated
according to the terms of the Settlement Agreement.
Members of the Settlement Class and Collective Action are
authorized to receive a settlement payment only if they timely and
properly submit a signed Claim Form to the Administrator. All
members of the Settlement Class and Settlement Collective Action
who fail to comply with these requirements will be forever barred
from receiving any settlement payment pursuant to the Settlement
set forth in the Settlement Agreement.
Prior to the Final Approval Hearing, the Administrator will serve
and file a sworn statement attesting to compliance with the
Settlement Agreement.
E. Requests for Exclusion from the North Carolina State Law
Settlement Class
Members of the Putative Rule 23 Settlement Class may request
exclusion from the Rule 23 Settlement Class and the Settlement.
In the event the Settlement receives final approval, any member of
the Settlement Class who did not properly and timely request
exclusion will be bound by all the terms and provisions of the
Settlement Agreement, the final approval order, the final judgment,
and the releases set forth therein, and will be deemed to have
waived all objections and opposition to the fairness,
reasonableness, and adequacy of the Settlement, whether or not such
person objected to the Settlement and whether or not such person
made a claim upon, or participated in, the Settlement. All members
of the Settlement Class who do not timely and validly request to be
excluded would be enjoined from proceeding against the Defendant
for the claims made in the Complaint.
All members of the Settlement Class who submit valid and timely
notices of their intent to be excluded from the Settlement Classes:
(i) will not have any rights under the Settlement Agreement; (ii)
will not be entitled to receive a settlement payment; and (iii)
will not be bound by the Settlement Agreement, any final approval
order, or the final judgment.
F. Objections to the Settlement
Consistent with the Settlement Agreement, members of the Settlement
Class, who have not requested exclusion and wish to object to the
Settlement must serve a written objection on the Administrator
setting forth the grounds for the objection as provided in the
Notice. The objection must indicate whether the class member
intends to appear and object to the Settlement at the Final
Fairness Hearing.
Failure by a class member to make this indication constitutes a
waiver to appear at the hearing. Any objections must be filed and
served no later than sixty (60) calendar days after the date on
which the Administrator first mails the Notice and Claim Form to
the members of the Putative Settlement Classes. Any Settlement
Class Members who fail to file and serve a timely written objection
will be deemed to have waived any objection and will be foreclosed
from objecting to this Settlement.
G. Approval and Appointment of Administrator
The Court approves and appoints CAC Services Group, LLC to serve as
the neutral, third-party Administrator in accordance with the terms
of the Settlement Agreement and the Order.
The Court directs CAC Services to perform administrative duties,
including to establish a Net Settlement Fund consisting of the FLSA
Claim sub-fund, the Minimum Payment sub-fund, and the Reserve
sub-fund as defined in the Settlement Agreement, to manage all tax
liabilities for all Parties and their Counsel as part of managing
the Qualified Settlement Fund, as defined in the Settlement
Agreement, and to manage compliance with the Class Action
Settlement Act.
H. Final Approval Hearing
Pursuant to Rule 23(e) of the Fed. R. Civ. P., the Court will hold
a hearing to determine whether the Settlement Agreement and its
terms are fair, reasonable and in the best interests of the members
of the Settlement Classes, and whether a final judgment as to
Plaintiff's claims as provided in the Settlement Agreement should
be entered granting final approval of the Settlement (the "Final
Approval Hearing").
At the Final Approval Hearing, the Court will also determine
whether, and in what amount, attorney's fees, costs, and expenses
should be awarded to Class Counsel, and whether, and in what
amount, service awards should be made to Plaintiffs.
The Final Approval Hearing is scheduled to be held before this
Court on Jan. 10, 2022, at 10:00 a.m., in Courtroom 4 of the United
States District Court, 251 N. Main St., in Winston-Salem, North
Carolina 27101.
Only members of the Settlement Class, who have filed and served
timely notices of objection in accordance with the terms of Section
IV(43) of the Settlement Agreement and this Order will be entitled
to be heard at the Final Approval Hearing.
I. Other Provisions
Each and every time period and provision of the Settlement
Agreement will be deemed incorporated herein as if expressly set
forth and will have the full force and effect of an Order of the
Court.
The costs of settlement administration will be paid as set forth in
Section III (33) of the Settlement Agreement.
Certification of the Settlement Class and Settlement Collective
Action is a conditional certification for settlement purposes only.
If the Settlement Agreement is terminated pursuant to the terms of
the Settlement Agreement, or this Court does not grant final
approval of the Settlement Agreement, or the Settlement is not
consummated or fails to become effective for any reason whatsoever,
the conditional certification of the Settlement Class and
Settlement Collective Action will automatically be cancelled and
will be void.
J. Schedule
The following deadlines will apply unless modified by further order
of the Court:
Notices in the form of the Exhibits to the Settlement Agreement
will be sent to Class Members as provided in the Settlement, within
30 days after entry of this Order, on or before September 30,
2021.
Members of the Settlement Class and Settlement Collective Action
will have 60 calendar days following the mailing of notice to
postmark, email, or fax required claim forms to the Settlement
Administrator, as provided in the Settlement.
Any exclusions and objections to the Settlement Agreement will be
submitted within 60 calendar days after the mailing date of the
Notice of Settlement.
Any notices to appear at the Fairness Hearing will be filed within
67 calendar days after the mailing date of the Notice of
Settlement.
The Fairness Hearing will be held at 10:00 A.M. on Jan. 10, 2022.
The parties will file and serve papers in support of final approval
of the settlement 10 calendar days prior to the Final Fairness
Hearing, by Dec. 31, 2021.
The parties will file and serve papers in response to any
objections to final approval of the settlement 5 calendar days
prior to the Final Fairness Hearing, by Jan. 5, 2022.
A full-text copy of the Court's Memorandum Opinion and Order dated
Aug. 30, 2021, is available at https://tinyurl.com/bcvpcudv from
Leagle.com.
KATAPULT HOLDINGS: Rosen Law Firm Reminds of October 26 Deadline
----------------------------------------------------------------
WHY: Rosen Law Firm, a global investor rights law firm, reminds
purchasers of the securities of Katapult Holdings, Inc. f/k/a
FinServ Acquisition Corp. (NASDAQ: KPLT, KPLTW, FSRV, FSRVU, FSRVW)
between December 18, 2020 and August 10, 2021, inclusive (the
"Class Period"), of the important October 26, 2021 lead plaintiff
deadline.
SO WHAT: If you purchased Katapult securities during the Class
Period you may be entitled to compensation without payment of any
out of pocket fees or costs through a contingency fee arrangement.
WHAT TO DO NEXT: To join the Katapult class action, go to
http://www.rosenlegal.com/cases-register-2151.htmlor call Phillip
Kim, Esq. toll-free at 866-767-3653 or email pkim@rosenlegal.com or
cases@rosenlegal.com for information on the class action. A class
action lawsuit has already been filed. If you wish to serve as lead
plaintiff, you must move the Court no later than October 26, 2021.
A lead plaintiff is a representative party acting on behalf of
other class members in directing the litigation.
WHY ROSEN LAW: We encourage investors to select qualified counsel
with a track record of success in leadership roles. Often, firms
issuing notices do not have comparable experience, resources or any
meaningful peer recognition. Be wise in selecting counsel. The
Rosen Law Firm represents investors throughout the globe,
concentrating its practice in securities class actions and
shareholder derivative litigation. Rosen Law Firm has achieved the
largest ever securities class action settlement against a Chinese
Company. Rosen Law Firm was Ranked No. 1 by ISS Securities Class
Action Services for number of securities class action settlements
in 2017. The firm has been ranked in the top 4 each year since 2013
and has recovered hundreds of millions of dollars for investors. In
2019 alone the firm secured over $438 million for investors. In
2020, founding partner Laurence Rosen was named by law360 as a
Titan of Plaintiffs' Bar. Many of the firm's attorneys have been
recognized by Lawdragon and Super Lawyers.
DETAILS OF THE CASE: According to the lawsuit, defendants
throughout the Class Period made false and/or misleading statements
and/or failed to disclose that: (1) Katapult was experiencing
declining e-commerce retail sales and consumer spending; (2)
despite Katapult's assertions that it was a clear and compelling
value proposition to both consumers and merchants, transforming the
way nonprime consumers shop for essential goods and enabling
merchant access to this underserved segment, Katapult lacked
visibility into its consumers' future buying behavior; and (3) as a
result of the foregoing, defendants' positive statements about the
Company's business, operations, and prospects were materially false
and misleading and/or lacked a reasonable basis. When the true
details entered the market, the lawsuit claims that investors
suffered damages.
To join the Katapult class action, go to
http://www.rosenlegal.com/cases-register-2151.htmlor call Phillip
Kim, Esq. toll-free at 866-767-3653 or email pkim@rosenlegal.com or
cases@rosenlegal.com for information on the class action.
No Class Has Been Certified. Until a class is certified, you are
not represented by counsel unless you retain one. You may select
counsel of your choice. You may also remain an absent class member
and do nothing at this point. An investor's ability to share in any
potential future recovery is not dependent upon serving as lead
plaintiff.
Attorney Advertising. Prior results do not guarantee a similar
outcome.
Contact Information:
Laurence Rosen, Esq.
Phillip Kim, Esq.
The Rosen Law Firm, P.A.
275 Madison Avenue, 40th Floor
New York, NY 10016
Tel: (212) 686-1060
Toll Free: (866) 767-3653
Fax: (212) 202-3827
lrosen@rosenlegal.com
pkim@rosenlegal.com
cases@rosenlegal.com
www.rosenlegal.com [GN]
KATAPULT HOLDINGS: Schall Law Firm Reminds of Oct. 26 Deadline
--------------------------------------------------------------
The Schall Law Firm, a national shareholder rights litigation firm,
reminds investors of a class action lawsuit against Katapult
Holdings, Inc. f/k/a FinServ Acquisition Corp. ("Katapult" or "the
Company") (NASDAQ: KPLT) for violations of Sections 10(b) and 20(a)
of the Securities Exchange Act of 1934 and Rule 10b-5 promulgated
thereunder by the U.S. Securities and Exchange Commission.
Investors who purchased the Company's securities between December
18, 2020 and August 10, 2021, inclusive (the "Class Period"), are
encouraged to contact the firm before October 26, 2021.
We also encourage you to contact Brian Schall of the Schall Law
Firm, 2049 Century Park East, Suite 2460, Los Angeles, CA 90067, at
310-301-3335, to discuss your rights free of charge. You can also
reach us through the firm's website at www.schallfirm.com, or by
email at brian@schallfirm.com.
The class, in this case, has not yet been certified, and until
certification occurs, you are not represented by an attorney. If
you choose to take no action, you can remain an absent class
member.
According to the Complaint, the Company made false and misleading
statements to the market. Katapult suffered from declining
e-commerce sales and lower consumer spending. Although the Company
touted its value proposition to both consumers and merchants, it
had no visibility into the future buying behavior of consumers.
Based on these facts, the Company's public statements were false
and materially misleading throughout the class period. When the
market learned the truth about Katapult, investors suffered
damages.
Join the case to recover your losses.
The Schall Law Firm represents investors around the world and
specializes in securities class action lawsuits and shareholder
rights litigation.
This press release may be considered Attorney Advertising in some
jurisdictions under the applicable law and rules of ethics.
CONTACT:
The Schall Law Firm
Brian Schall, Esq.,
www.schallfirm.com
Office: 310-301-3335
info@schallfirm.com [GN]
KIM BIMESTEFER: Suit Seeks to Certify Class Action
--------------------------------------------------
In the class action lawsuit captioned as A.A. by and through his
grandmother, G.A., B.B. by and through her mother, P.B., and C.C.
by and through her mother, P.C., individually and on behalf of a
class, v. KIM BIMESTEFER, in her official capacity as Executive
Director of the Colorado Department of Health Care Policy and
Financing, Case No. 1:21-cv-02381-STV (D. Colo.), the Plaintiff
asks the Court to enter an order certifying case as a class action
pursuant to Rule 23(b)(2) of the Federal Rules of Civil Procedure,
defined as follows:
"All Medicaid-eligible children with disabilities under the
age of 21 in the State of Colorado: (1) who have been
diagnosed with a mental health or behavioral disorder; and
(2) for whom a physician or other licensed practitioner of
the healing arts has recommended intensive home and
community-based services to correct or ameliorate their
disorders."
The Plaintiffs and Class are Medicaid-eligible children with
behavioral or emotional disorders who need Intensive Home and
Community-Based Services (IHCBS) in order to correct or ameliorate
their conditions.
The Plaintiffs contend that they and Class are entitled to receive
these medically necessary services in the community under the Early
and Periodic Screening, Diagnostic, and Treatment Services (EPSDT)
provisions of Title XIX of the Social Security Act ("Medicaid
Act"), the Americans with Disabilities Act (ADA) and the
Rehabilitation Act.
The Colorado Department of Health Care Policy and Financing is the
principal department of the Colorado state government responsible
for administering the Medicaid and Child Health Plan Plus programs
as well as a variety of other programs for Colorado's low-income
families, the elderly, and persons with disabilities.
A copy of the Plaintiff's motion to certify class dated Sept. 7,
2021 is available from PacerMonitor.com at https://bit.ly/3A4AKhX
at no extra charge.[CC]
The Plaintiffs are represented by:
Robert H. Farley, Jr., Esq.
ROBERT H. FARLEY, JR., LTD.
1155 S. Washington St., Suite 201
Naperville, IL 60540
Telephone: 630-369-0103
E-mail: farleylaw@aol.com
- and -
Jane Perkins, Esq.
Kim Lewis, Esq.
NATIONAL HEALTH LAW PROGRAM
1512 E. Franklin St., Ste. 110
Chapel Hill, NC 27514
Telephone: (919) 968-6308
E-mail: perkins@healthlaw.org
lewis@healthlaw.org
LIBERTY PERSONAL: Bid for Class Certification Due March 14, 2022
----------------------------------------------------------------
In the class action lawsuit captioned as DERRICK URSIN,
individually and on behalf of others similarly situated, v. LIBERTY
PERSONAL INSURANCE COMPANY, Case No. 3:21-cv-00286-SDD-RLB (M.D.
La.), the Hon. Judge Richard L. Bourgeois, Jr. entered an order in
accordance with Federal Rule of Civil Procedure 16(b), establishing
the following deadlines:
1. Exchanging initial disclosures required by F.R.C.P. 26(a)
(1): The parties agree with the times set forth in the
Federal Rules of Civil Procedure.
2. The deadline to join other parties or to amend the
pleadings is October 30, 2021.
3. Disclosure of identities and resumes of experts for class
certification:
-- Plaintiff(s): January 10, 2022
-- Defendant(s): January 10, 2022
4. Class certification motion and exchange expert reports:
-- Plaintiffs' motion for class March 14,2022
certification:
-- Plaintiffs' class certification March 14, 2022
expert report:
-- Defendant's opposition to motion May 13, 2022
for class certification:
-- Defendant's class certification May 13, 2022
expert report:
-- Plaintiffs' reply in support June 20, 2022.
of class certification:
Liberty Personal Insurance Company operates as an insurance
company.
A copy of the Court's order dated Sept. 7, 2021 is available from
PacerMonitor.com at https://bit.ly/2XqHl8a at no extra charge.[CC]
LIGHTHOUSE INSURANCE: Time Extension for Class Cert Response Sought
-------------------------------------------------------------------
In the class action lawsuit captioned as JOSEPH BOND AND NICOLE
THOMPSON, individually and on behalf of all others similarly
situated, v. LIGHTHOUSE INSURANCE GROUP, LLC, Case No.
1:20-cv-00677-JPC (N.D. Ohio), the Parties asks the Court to enter
an order granting seven day extension of time, up to and including
September 27, 2021, for LIG to file its response to Plaintiffs'
Motion for Class Certification.
A copy of the Parties' motion dated Sept. 7, 2021 is available from
PacerMonitor.com at https://bit.ly/2XhX7C9 at no extra charge.[CC]
The counsel for the Plaintiffs Joseph Bond and Nicole Thompson,
individually and on behalf of all others similarly situated, are:
Patrick H. Peluso, Esq.
WOODROW & PELUSO, LLC
3900 East Mexico Ave., Suite 300
Denver, CO 80210
E-mail: ppeluso@woodrowpeluso.com
The Counsel for Lighthouse Insurance Group, LLC ,are:
Christopher B. Congeni, Esq.
Annamarie E. Braga, Esq.
MATASAR JACOBS LLC
1111 Superior Avenue, Suite 1355
Cleveland, OH 44114
Telephone: (216) 453-8180
Facsimile: (216) 282-8600
E-mail: abraga@matasarjacobs.com
ccongeni@matasarjacobs.com
LIGHTNING EMOTORS: Delman Suit vs. GigCapital3 Underway
-------------------------------------------------------
Lightning eMotors, 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 GigCapital3, Inc., is
facing a putative class action suit entitled, Delman v.
GigCapital3, Inc., et al.
On August 4, 2021, a purported stockholder of the Company filed a
putative class action complaint in the Delaware Chancery Court,
captioned Delman v. GigCapital3, Inc., et al. (Case No. 2021-0679)
on behalf of a purported class of stockholders.
The lawsuit names GigCapital3 and Dr. Avi Katz, Dr. Raluca Dinu,
and Messrs. Andrea Betti-Berutto, John Mikulsky, Neil Miotto and
Peter Wang, as defendants.
The lawsuit alleges that the defendants breached their fiduciary
duty stemming from Gig's merger with Lightning and unjust
enrichment of the defendants.
The lawsuit seeks, among other relief, damages in an amount which
may be proven at trial, disgorgement of unjust enrichment, and
redemption rights with respect to certain stockholders.
The lawsuit also purports to seek pre-judgment and post-judgment
interest and recovery of the costs of the action, including
reasonable attorneys' and experts' fees.
Lightning eMotors, Inc. is a newly organized Private-to-Public
Equity (PPE) company, also known as a blank check company or
special purpose acquisition vehicle, incorporated in the State of
Delaware and formed for the purpose of acquiring, engaging in a
share exchange, share reconstruction and amalgamation with,
purchasing all or substantially all of the assets of, or engaging
in any other similar business combination with one or more
businesses or entities. The company is based in Loveland,
Colorado.
LOANDEPOT INC: Gainey McKenna Reminds of November 8 Deadline
------------------------------------------------------------
Gainey McKenna & Egleston on Sept. 7 disclosed that a class action
lawsuit has been filed against loanDepot, Inc. ("loanDepot" or the
"Company") (NYSE: LDI) in the United States District Court for the
Central District of California on behalf of those who purchased or
otherwise acquired loanDepot publicly traded securities pursuant
and/or traceable to the registration statement and related
prospectus (collectively, the "Registration Statement") issued in
connection with loanDepot's February 16, 2021 initial public
offering (the "IPO" or "Offering").
According to the Complaint, the Registration Statement featured
false and/or misleading statements and/or failed to disclose that:
(i) the Company's refinance originations had already declined
substantially at the time of the IPO due to industry over-capacity
and increased competition; (ii) the Company's gain-on-sale margins
had already declined substantially at the time of the IPO; (iii) as
a result, the Company's revenue and growth would be negatively
impacted; and (iv) 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.
Investors who purchased or otherwise acquired shares of loanDepot
pursuant and/or traceable to the Registration Statement issued in
connection with loanDepot's February 16, 2021 IPO should contact
the Firm prior to the November 8, 2021 lead plaintiff motion
deadline. A lead plaintiff is a representative party acting on
behalf of other class members in directing the litigation. If you
wish to discuss your rights or interests regarding this class
action, please contact Thomas J. McKenna, Esq. or Gregory M.
Egleston, Esq. of Gainey McKenna & Egleston at (212) 983-1300, or
via e-mail at tjmckenna@gme-law.com or gegleston@gme-law.com.
Please visit our website at http://www.gme-law.comfor more
information about the firm. [GN]
LOANDEPOT INC: Rosen Law Firm Reminds of November 8 Deadline
------------------------------------------------------------
WHY: Rosen Law Firm, a global investor rights law firm, on Sept. 7
announced the filing of a class action lawsuit on behalf of
purchasers of the securities of loanDepot, Inc. (NYSE: LDI)
pursuant and/or traceable to the registration statement and related
prospectus (collectively, the "Registration Statement") issued in
connection with loanDepot's February 16, 2021 initial public
offering (the "IPO" or "Offering"). A class action lawsuit has
already been filed. If you wish to serve as lead plaintiff, you
must move the Court no later than November 8, 2021.
SO WHAT: If you purchased loanDepot securities pursuant and/or
traceable to the IPO you may be entitled to compensation without
payment of any out of pocket fees or costs through a contingency
fee arrangement.
WHAT TO DO NEXT: To join the loanDepot class action, go to
http://www.rosenlegal.com/cases-register-2156.htmlor call Phillip
Kim, Esq. toll-free at 866-767-3653 or email pkim@rosenlegal.com or
cases@rosenlegal.com for information on the class action. A class
action lawsuit has already been filed. If you wish to serve as lead
plaintiff, you must move the Court no later than November 8, 2021.
A lead plaintiff is a representative party acting on behalf of
other class members in directing the litigation.
WHY ROSEN LAW: We encourage investors to select qualified counsel
with a track record of success in leadership roles. Often, firms
issuing notices do not have comparable experience, resources or any
meaningful peer recognition. Be wise in selecting counsel. The
Rosen Law Firm represents investors throughout the globe,
concentrating its practice in securities class actions and
shareholder derivative litigation. Rosen Law Firm has achieved the
largest ever securities class action settlement against a Chinese
Company. Rosen Law Firm was Ranked No. 1 by ISS Securities Class
Action Services for number of securities class action settlements
in 2017. The firm has been ranked in the top 4 each year since 2013
and has recovered hundreds of millions of dollars for investors. In
2019 alone the firm secured over $438 million for investors. In
2020, founding partner Laurence Rosen was named by law360 as a
Titan of Plaintiffs' Bar. Many of the firm's attorneys have been
recognized by Lawdragon and Super Lawyers.
DETAILS OF THE CASE: According to the lawsuit, the Registration
Statement featured false and/or misleading statements and/or 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/or lacked
a reasonable basis.
To join the loanDepot class action, go to
http://www.rosenlegal.com/cases-register-2156.htmlor call Phillip
Kim, Esq. toll-free at 866-767-3653 or email pkim@rosenlegal.com or
cases@rosenlegal.com for information on the class action.
No Class Has Been Certified. Until a class is certified, you are
not represented by counsel unless you retain one. You may select
counsel of your choice. You may also remain an absent class member
and do nothing at this point. An investor's ability to share in any
potential future recovery is not dependent upon serving as lead
plaintiff.
Attorney Advertising. Prior results do not guarantee a similar
outcome.
Contacts:
Laurence Rosen, Esq.
Phillip Kim, Esq.
The Rosen Law Firm, P.A.
275 Madison Avenue, 40th Floor
New York, NY 10016
Tel: (212) 686-1060
Toll Free: (866) 767-3653
Fax: (212) 202-3827
lrosen@rosenlegal.com
pkim@rosenlegal.com
cases@rosenlegal.com
www.rosenlegal.com [GN]
MADISON REED: N.D. California Tosses Brown Suit With Leave to Amend
-------------------------------------------------------------------
In the lawsuit entitled MOLLY BROWN, et al., Plaintiffs v. MADISON
REED, INC., Defendant, Case No. 21-cv-01233-WHO (N.D. Cal.),
District Judge William H. Orrick of the U.S. District Court for the
Northern District of California issued an order:
-- granting in part and denying in part motion to compel
arbitration; and
-- granting motion to dismiss with leave to amend.
Plaintiffs Keppie Moore and Molly Brown bring the class action
lawsuit against Defendant Madison Reed, a company that sells hair
color products, alleging consumer protection claims under
California's Consumers Legal Remedies Act ("CLRA"), False
Advertising Law ("FAL"), and Unfair Competition Law ("UCL").
Madison Reed moves to compel one Plaintiff, Brown, to arbitration
and also to dismiss the Complaint as a whole for failure to state a
claim.
Madison Reed, founded in 2014, manufactures and sells Madison Reed
Hair Color Products. It claims to "sell high quality hair color
products that use ingredients that are less 'harsh' on hair health,
as well as the health of the user, than traditionally-formulated
hair color products" and that its products "were designed with
consumers' 'well-being in mind.'"
The Plaintiffs allege that Madison Reed made various false
representations about its products on the product's packaging, on
its website and elsewhere online, in mailed advertising and via
television and radio commercials. They identify, among other
things: (i) statements on the product's packaging, such as "Free of
ammonia," "resorcinol" and "PPD" (p-phenylenediamine); (ii) similar
statements in a description of the product on a third-party retail
website, "Free of: ammonia," "resorcinol" and "PPD"; and (iii) four
statements on Madison Reed's website, including "To provide the
best, most luxurious hair color, made with ingredients you can feel
good about."
The Plaintiffs allege that these representations constitute both
affirmative misrepresentations and actionable omissions or partial
representations that are misleading and false. In particular, they
contend that Madison Reed falsely claims that its products do not
contain "harsh ingredients" like ammonia, resorcinol, and PPD
because the products contain other ingredients that are similar to
ammonia, resorcinol, and PPD (namely, ethanolamine,
2-methylresorcinol and toluene-2,5-diamine sulfate) that are just
as "harsh" on hair, if not harsher, and that are not less harmful
to human health.
The Plaintiffs bring causes of action for violation of the CLRA,
FAL, and UCL, on behalf of a nationwide class of consumers who
purchased Madison Reed products containing ethanolamine,
2-methylresorcinol and toluene-2, 5-diamine sulfate. They seek
monetary and injunctive relief, including an order enjoining
Madison Reed's unlawful and deceptive acts and practices, requiring
Madison Reed to remove language from the Products' packaging,
marketing, and advertising that represents that the product is free
of bad stuff and/or certain harsh ingredients.
Arbitration Agreement
With reference to Brown's claims, Madison Reed submits three copies
of its Terms of Service that were in effect from Sept. 9, 2015, to
Feb. 1, 2016 ("2015 Terms of Service"), from Feb. 1, 2016, to Jan.
19, 2017 ("2016 Terms of Service"), and from June 8, 2018, to Sept.
19, 2019 ("2018 Terms of Service"). Madison Reed contends, and
Brown does not dispute, that the 2018 Terms of Service apply to her
because her last purchase was on March 7, 2019, when the 2018 Terms
of Service were in effect. For purposes of evaluating the
arbitration language at issue in this case, all three Terms of
Service contain the same text.
The "Dispute Resolution" section of the Terms of Services contains
multiple subsections. The "Agreement to Arbitrate" subsection
states in relevant part: "You and Madison Reed agree that any
dispute, claim or controversy arising out of or relating to these
Terms or the use of the Services or Content (Disputes) will be
settled by confidential binding arbitration. You acknowledge and
agree that you and Madison Reed are each waiving the right to a
trial by jury or to participate as a plaintiff or class member in
any purported class action or representative proceeding."
The "Arbitrator's Decision" subsection, which Brown argues contains
unenforceable language, states in relevant part: "The arbitrator
will render an award within the time frame specified in the AAA
Rules. The arbitrator's decision will include the essential
findings and conclusions upon which the arbitrator based the award.
Judgment on the arbitration award may be entered in any court
having jurisdiction thereof. If you prevail in arbitration you will
be entitled to an award of attorneys' fees and expenses, to the
extent provided under applicable law. Madison Reed will not seek,
and hereby waives all rights it may have under applicable law to
recover, attorneys' fees and expenses if it prevails in
arbitration."
Discussion
Ms. Brown agreed to Madison Reed's Terms of Service, including an
arbitration clause, via a clickwrap agreement when she purchased
the hair color products that are the subject of this action.
Judge Orrick holds that the "Arbitrator's Decision" subsection of
that arbitration agreement is invalid under McGill v. Citibank,
N.A., 2 Cal. 5th 945 (2017) because it improperly prohibits Brown
from seeking a public injunction. But the McGill-violative
subsection is severable from the rest of the arbitration agreement,
which Brown does not challenge and that is not permeated with
illegality.
As a result, Madison Reed's motion to compel Brown to arbitration
is denied with respect to her public injunctive relief claim but
granted for her remaining individual claims. This ruling does not
impact Plaintiff Moore, Judge Orrick states.
That said, Judge Orrick holds, none of the claims have been
adequately pleaded in the Complaint. The Plaintiffs list numerous
misleading statements Madison Reed made on its packaging, website,
commercials, and other platforms, but fail to specifically allege
which, if any, of those statements they actually saw and relied
upon before deciding to purchase the Madison Reed's products.
Madison Reed argues that the statements listed in the Complaint are
nonactionable puffery, verifiably accurate statements or do not
amount to partial misrepresentations.
Without knowing which statements are part of the lawsuit and which
are not, Judge Orrick says he will not rule on the actionability of
any statement. In addition to the fundamental Rule 9(b) pleading
problem, the Plaintiffs also fail to plead their entitlement to
equitable and injunctive relief. Hence, Madison Reed's motion to
dismiss is granted with leave to amend.
Conclusion
Madison Reed's motion to compel Brown to arbitration is denied with
respect to her public injunctive relief claim and granted for her
remaining individual claims. Madison Reed's motion to dismiss the
Complaint is granted with 30 days leave to amend.
A full-text copy of the Court's Order dated Aug. 30, 2021, is
available at https://tinyurl.com/wff8mrec from Leagle.com.
MARICOPA, AZ: Luckey Suit Seeks to Certify Two Classes
------------------------------------------------------
In the class action lawsuit captioned as Samuel Luckey and Aaron
Dromiack, on behalf of themselves and those similarly situated, and
Arizona Attorneys for Criminal Justice, v. Allister Adel, in her
official capacity as County Attorney for Maricopa County, Case No.
2:21-cv-01168-GMS-ESW (D. Ariz.), the Plaintiffs ask the Court to
enter an order certifying two classes:
-- the Pre-Waiver Class
"All current and future people whom the Maricopa County
Attorney's Office 5 (MCAO) has charged and assigned to
Maricopa County's Early Disposition Courts (EDCs) and who
are subject to MCAO's blanket policy, practice, or custom
of making or threatening to make plea offers harsher in
response to people exercising their right to a preliminary
hearing and/or trial, but who have not yet made the
decision to waive their preliminary hearing or reject
their initial plea offer;" and
-- the Post-Waiver Class
"All current and future people whom the MCAO has charged
and assigned to Maricopa County's EDCs and who are subject
to MCAO's blanket policy, practice, or custom of making or
threatening to make plea offers harsher in response to
people exercising their right to a preliminary hearing
and/or trial, but who have waived their preliminary
hearing and/or rejected their initial plea offer."
This action seeks to protect people accused of crimes in the EDCs
from Defendant's unconstitutional policy of making plea offers
"presumptively harsher" or even "substantially harsher" in
retaliation for people asserting their rights to a preliminary
hearing and/or trial. Arizonans are guaranteed a right to trial
under the U.S. Constitution and guaranteed a preliminary hearing
under the Arizona Constitution and Arizona statutes.
In Maricopa County, people charged with felonies by information and
not a grand jury are first taken before a magistrate judge for an
initial appearance. The initial appearance is a non-adversarial
proceeding at which the magistrate, among other things, (1)
determines whether the person is indigent for purposes of assigning
a public defender, (2) sets dates for a status conference and
follow-up preliminary hearing, and (3) decides whether the person
will be detained while awaiting those dates.
If MCAO files a direct complaint against the person within 48 hours
of the initial appearance and assigns the case to the EDCs -- which
it has done with increasing frequency over the years -- then the
person becomes subject to the Retaliation Policy. As a result, the
person must accept any initial plea offer and waive their
preliminary hearing, or MCAO will pull the offer and make any
subsequent one "substantially harsher."
Maricopa County is located in the south-central part of the U.S.
state of Arizona.
A copy of the Plaintiffs' motion to certify class dated Sept. 8,
2021 is available from PacerMonitor.com at https://bit.ly/2YKHNyq
at no extra charge.[CC]
The Plaintiffs are represented by:
Somil Trivedi, Esq.
AMERICAN CIVIL LIBERTIES UNION FOUNDATION
CRIMINAL LAW REFORM PROJECT
915 15 th St., NW
Washington, DC 20005
Telephone: (202) 715-0802
E-mail: strivedi@aclu.org
- and -
Jared G. Keenan, Esq.
Victoria Lopez, Esq.
AMERICAN CIVIL LIBERTIES UNION
FOUNDATION OF ARIZONA
3707 North 7th Street, Suite 235
Phoenix, AZ 85014
Telephone: (602) 650-1854
E-mail: jkeenan@acluaz.org
vlopez@acluaz.org
MATRAT LLC: Owes $660K to Barbecho Suit's Class Members, Court Says
-------------------------------------------------------------------
The U.S. District Court for the Southern District of New York
grants in part and denies in part the Plaintiff's motion to enforce
the settlement agreement filed on Sept. 21, 2020, in the lawsuit
entitled FERNANDO BARBECHO, on behalf of himself and others
similarly situated, Plaintiff v. MATRAT LLC d/b/a GUY & GALLARD, et
al., Defendants, Case No. 15 CV 00170-LTS (S.D.N.Y.).
Chief District Judge Laura Taylor Swain directs the Clerk of Court
to enter judgment in the Plaintiff's favor for $660,000, the amount
owed pursuant to the parties' settlement agreement, plus
post-judgment interest at the statutory rate. The Plaintiff's
request for attorneys' fees is denied without prejudice.
Plaintiff Fernando Barbecho, on behalf of himself and other
employees similarly situated, brought this collective and class
action alleging that Defendants Matrat LLC, Shayan Holding Corp.,
Tas Bakery Inc., RRCTG, Inc., and Tareq Ahmed violated the Fair
Labor Standards Act ("FLSA") and the New York Labor Law ("NYLL") by
failing to pay proper wages and overtime compensation.
On April 10, 2015, the parties notified the Court that they had
achieved a settlement in principle. After the parties drafted and
revised the proposed agreement, the Court granted preliminary
approval of the settlement agreement on May 23, 2016, held a
fairness hearing on Sept. 29, 2016, and certified the collective
and the class for settlement purposes and granted final approval of
the settlement agreement on May 4, 2017.
Now before the Court is the Plaintiff's motion to enforce the
settlement agreement filed on Sept. 21, 2020, accompanied by a
proposed order, a memorandum of law, and a declaration of the
Plaintiff's counsel, Anne Seelig, Esq., in support of the motion.
The motion seeks a judgment for the outstanding amount of the
agreed settlement fund, and requests attorneys' fees incurred in
the Plaintiff's attempts to enforce the settlement agreement. The
Defendants have not filed a response to the motion.
Motion to Enforce
The Court explicitly provided in the order granting final approval
of the settlement agreement that it "retains jurisdiction over this
action for the purpose of enforcing the Settlement Agreement and
overseeing the distribution of settlement funds." Thus, the Court
has the authority to enforce the settlement agreement according to
its terms, and "may proceed to enforce the agreement by entry of
judgment.
Judge Swain notes that the party seeking to enforce the settlement
agreement has the burden of proof to demonstrate that the parties
actually entered into such an agreement. Here, counsel to both
parties executed the agreement on April 6, 2016. The Court then
issued an order certifying a class and collective for settlement
purposes and granting final approval of the class action settlement
on May 4, 2017. Hence, there can be no dispute that the parties
entered into an enforceable agreement.
The record reveals that the Plaintiff and the class members
performed their obligations under the agreement by voluntarily
agreeing to the release of their claims. However, the Plaintiff has
proffered, through the declaration of Anne Seelig, Esq., that the
Defendants have failed to comply with their obligations under the
settlement agreement.
Specifically, the settlement agreement stipulated that the
Defendants "agree[d] to create a 'Gross Settlement Fund' in the
amount of $900,000", and that the settlement amount would be funded
through "45 equal monthly installments of $20,000 each," until it
was "fully paid by September 2018." At the time of filing the
motion to enforce the settlement agreement, the Plaintiff proffered
that the Defendants had only "remitted $240,000 of the $900,000
settlement amount." In a status update to the Court filed on July
27, 2021, the Plaintiff's counsel wrote that the Defendants have
made "no further payment" to the settlement fund.
In the event that the Defendants failed to make an installment
payment as provided for in Section 3.1(B) of the settlement
agreement, Section 3.1(C) of the agreement stipulated that they
would be in default. Upon such default, the agreement stipulated
that "Plaintiff's counsel shall transmit by first class mail a
Notice to Cure the Default to attorney for Defendants," and the
Defendants would have "ten days from receipt of such Notice" to
cure the default.
The Plaintiff alleges that a notice of default was sent to the
Defendants pursuant to Section 3.1(C) of the agreement on April 22,
2019, the Defendants "have failed to cure" because "$660,000 of the
$900,000 settlement remains due and owing[,]" and the "time to cure
has long since expired."
Thus, the Court finds that the Defendants have breached the
settlement agreement by failing to remit the full $900,000 of the
settlement fund, and the Plaintiff and the members of the
settlement class have been damaged in the amount that remains
unpaid, specifically $660,000. Accordingly, the Court finds that
the Plaintiff, and the settlement class, are entitled to judgment
for the remaining $660,000.
However, to the extent that the Plaintiff requests relief pursuant
to Section 198(4) of the NYLL, that request is denied, Judge Swain
holds. In the Plaintiff's proposed order, the Plaintiff includes a
"failure to pay" provision pursuant to NYLL Section 198(4) which
states: "If any amount remains unpaid upon the expiration of 90
days following issuance of judgment, the total amount of the
judgment shall automatically increase by 15%." However, Judge Swain
explains, an action to enforce a settlement agreement is
fundamentally a cause of action sounding in breach of contract.
Request for Attorneys' Fees
Section 3.1(C) of the settlement agreement provides that, "if
Defendants fail to cure the default. Plaintiff may file this
Agreement as a Judgment" seeking the outstanding balance "plus
reasonable attorneys' fees and costs incurred."
The Plaintiff requests that the Court award his counsel attorneys'
fees in the amount of $2,150 for the time spent in connection with
the enforcement of the parties' settlement agreement. Specifically,
the Plaintiff seeks to recover $1,600 in fees incurred for the two
hours the Plaintiff's counsel, Anne Seelig, Esq., spent "reviewing
payment history, corresponding with Defendants' counsel and
internal correspondence, and revising this motion" at the rate of
$800 per hour. The Plaintiff also seeks to recover $550 in fees for
two hours paralegal, Panning Cui, spent preparing this motion, at
the rate of $275 per hour.
The Plaintiff requests that he be reimbursed for fees related to
time spent by his counsel and a paralegal in support of his efforts
to enforce the settlement agreement. However, the Plaintiff's
counsel has failed to provide billing time records for review,
Judge Swain finds. Instead, the Plaintiff's counsel submits only an
affidavit, which approximates the time spent on different tasks she
performed. Moreover, the Plaintiff's counsel fails to submit any
information regarding the time and efforts expended by paralegal,
Panning Cui, on the matter, instead relying solely on the
description the Plaintiff includes in his memorandum of law
supporting his motion.
Thus, the Court denies the Plaintiff's request for reimbursement of
attorneys' fees without prejudice to the refiling of a fee motion
pursuant to Federal Rule of Civil Procedure 54(d) accompanied by
the appropriate information within 14 days of the entry of
judgment.
Conclusion
For these reasons, the Plaintiff's motion to enforce the settlement
agreement is granted, in part, and denied, in part. The Clerk of
Court is directed to enter judgment in the Plaintiff's favor for
$660,000, the amount owed pursuant to the parties' settlement
agreement, plus post-judgment interest at the statutory rate.
The Plaintiff's request for attorneys' fees is denied without
prejudice to the filing of a properly-supported motion pursuant to
Federal Rule of Civil Procedure 54(d).
The Memorandum Order resolves docket entry no. 48.
A full-text copy of the Court's Memorandum Order dated Aug. 30,
2021, is available at https://tinyurl.com/bzfe7xpa from
Leagle.com.
MCCORMICK TRUCKING: Keator Suit Seeks to Certify FLSA Collective
----------------------------------------------------------------
In the class action lawsuit captioned as CARRIE KEATOR,
individually and on behalf of all other similarly situated
individuals, v. MCCORMICK TRUCKING, INC., TRACIE MCCORMICK, INC.,
ACTION TRAILER SERVICES, INC., ROBERT MCCORMICK, and TRACIE
MCCORMICK, Case No. 3:21-cv-00605 (M.D. Tenn.), the Plaintiff
Carrie Keator, and opt-in plaintiffs Jerod Rickard and Justin
Graham ask the Court to enter an order, pursuant to 29 U.S.C.
section 216(b) of the Fair Labor Standards Act ("FLSA"):
1. conditionally certifying the proposed collective FLSA
class;
2. permitting issuance of Court-approved Notice of
Plaintiffs' FLSA claims is sent (via U.S. Mail, email and
text message) to:
"All current and former dispatchers, schedulers,
transportation specialists, breakdown coordinators, and
similar job titles who work or worked for Defendants in
Tennessee at any time during the three years preceding the
filing of the Complaint through judgment (the "FLSA
Collective"); and
3. requiring Defendants to identify all FLSA Collective
members by providing a list including (a) full names; (b)
last known mailing addresses; (c) dates of employment; (d)
location(s) of employment; (e) phone numbers; and (f)
email addresses in electronic and importable format within
ten days of the entry of the order conditionally
certifying this action.
The Plaintiffs and other similarly situated employees are/were
responsible for, among other things, answering phone calls and
assisting drivers with issues such as truck breakdowns, traffic
avoidance, and refueling stops, and their job duties were or are
similar to those performed by other employees.
As dispatchers, schedulers, maintenance coordinators, and
transportation specialists for the Defendants, the Plaintiffs and
members of the putative FLSA Collective were paid an hourly wage,
typically worked five or 60 days and 40 or more hours per week, and
worked overtime during several workweeks.
The Plaintiffs contend that the Defendants operate as one
enterprise and employ or jointly employed Plaintiffs and all others
assigned to work at Defendants' corporate headquarters. To
coordinate its fleet of trucks, the Defendants employ dispatchers,
schedulers, transportation specialists, breakdown coordinators, and
similar hourly employees who help to facilitate the logistics of
mail deliveries. Specifically, these employees answer phone calls
and assist drivers with breakdowns, traffic, refueling, schedules
and routing. The Defendants employ these individuals in
Murfreesboro, Tennessee, the Plaintiffs add.
The Defendants operate a trucking company that exclusively hauls
mail for the U.S. Postal Service. The Defendants' corporate
headquarters is located in Murfreesboro, Tennessee.
A copy of the Plaintiffs' motion to certify class dated Sept. 7,
2021 is available from PacerMonitor.com at https://bit.ly/3tL8dLZ
at no extra charge.[CC]
The Counsel for the Plaintiffs, individually and on behalf of all
similarly situated individuals, are:
Curt M. Masker, Esq.
THE MASKER FIRM
810 Dominican Drive, Suite 314
Nashville, TN 37228
Telephone: (615) 823-1737
Facsimile: (615) 821-0632
E-mail: curt@maskerfirm.com
MDL 1869: BNSF Appeals Order in Antitrust Case to D.C. Cir.
-----------------------------------------------------------
Defendants BNSF Railway Company, et al., filed an appeal from a
court ruling entered in the multidistrict litigation titled IN RE:
RAIL FREIGHT FUEL SURCHARGE ANTITRUST LITIGATION - MDL NO. 1869.
The Defendants-Appellants are BNSF Railway Company, CSX
Transportation, Inc., Norfolk Southern Railway Company, and Union
Pacific Railroad Company.
The Plaintiffs-Appellees are Donnelly Commodities Incorporated,
Dust Pro, Inc., Olin Corporation, Strates Shows, Inc., and US
Magnesium, LLC
The case arises out of 18 antitrust actions consolidated by the
Multidistrict Litigation Panel. Donnelly Commodities Incorporated,
one of the Plaintiffs of this consolidated action, originally filed
its complaint on November 14, 2007, Case No. 1:07-mc-00489-PLF-GMH,
in the U.S. District Court for the District of Columbia.
This consolidated action involves a putative class of over 16,000
shippers allegedly harmed by a price-fixing conspiracy among the
nation's largest freight railroads. The Defendants are the four
largest freight railroads in the United States: BNSF Railway
Company; CSX Transportation, Inc.; Norfolk Southern Railway
Company; and Union Pacific Railroad Co. The Plaintiffs, who are
their customers, allege that the railroads conspired to fix
rate-based fuel surcharges. Railroads impose fuel surcharges --
additional charges above the base shipping price -- when the price
of fuel rises above a certain trigger price. Rate-based surcharges
are calculated as a percentage of the base shipping price, says the
suit.
The appellate case is captioned as Donnelly Commodities
Incorporated, et al. v. BNSF Railway Company, et al., Case No.
21-7093, in the United States Court of Appeals for the District of
Columbia Circuit, filed on Aug. 31, 2021.[BN]
Defendants-Appellants BNSF Railway Company, CSX Transportation,
Inc., Norfolk Southern Railway Company, and Union Pacific Railroad
Company are represented by:
Linda S. Stein, Esq.
STEPTOE & JOHNSON LLP
1330 Connecticut Avenue, NW
Washington, DC 20036-1795
Telephone: (202) 429-3000
- and -
Donald B. Verrilli, Jr., Esq.
MUNGER, TOLLES & OLSON LLP
601 Massachusetts Avenue, NW Suite 500e
Washington, DC 20001-5369
Telephone: (202) 220-1100
- and -
Benjamin J. Horwich, Esq.
MUNGER, TOLLES & OLSON LLP
560 Mission Street, 27th Floor
San Francisco, CA 94105
Telephone: (415) 512-4066
- and -
Kent Alan Gardiner, Esq.
CROWELL & MORING LLP
1001 Pennsylvania Avenue, NW
Washington, DC 20004-2595
Telephone: (202) 624-2500
- and -
Saul P. Morgenstern, Esq.
ARNOLD & PORTER, LLP
250 West 55th Street
New York, NY 10019-9710
Telephone: (212) 836-8000
- and -
Tara L. Reinhart, Esq.
SKADDEN ARPS SLATE MEAGHER & FLOM LLP
1440 New York Avenue, NW
Washington, DC 20005
Telephone: (202) 371-7000
- and -
Tyrone Richard Childress, Esq.
JONES DAY
555 South Flower Street
Fiftieth Floor
Los Angeles, CA 90071-1025
Telephone: (213) 489-3939
- and -
Matthew M. Collette, Esq.
MASSEY & GAIL, LLP
1000 Maine Avenue, SW, Suite 450
Washington, DC 20024
Telephone: (202) 652-4511
- and -
Kristen Lejnieks, Esq.
JONES DAY
51 Louisiana Avenue, NW
Washington, DC 20001-2113
Telephone: (202) 879-3939
- and -
John M. Majoras, Esq.
JONES DAY
PO Box 165017
Columbus, OH 43216-5017
Telephone: (614) 469-3939
Plaintiffs-Appellees Donnelly Commodities Incorporated, On behalf
of itself and all others similarly situated; Dust Pro, Inc.; Olin
Corporation; Strates Shows, Inc.; and US Magnesium are represented
by:
Michael D. Hausfeld, Esq.
HAUSFELD LLP
888 16th Street, NW Suite 300
Washington, DC 20006
Telephone: (202) 540-7200
- and -
Paul M. Donovan, Esq.
LAROE, WINN, MOERMAN & DONOVAN
1250 Connecticut Avenue, NW Suite 200
Washington, DC 20036-2643
Telephone: (202) 298-8100
- and -
Stephen R. Neuwirth, Esq.
QUINN EMANUEL URQUHART & SULLIVAN LLP
51 Madison Avenue, 22nd Floor
New York, NY 10010
Telephone: (212) 849-7000
MDL 2555: Class Certification Order in Coca Cola Sales Suit Flipped
-------------------------------------------------------------------
In the case, In re: COCA-COLA PRODUCTS MARKETING AND SALES
PRACTICES LITIGATION (NO. II). GEORGE ENGURASOFF; JOSHUA OGDEN;
PAUL MERRITT; YOCHEVED LAZAROFF; RACHEL DUBE; RONALD SOWIZROL;
MICHELLE MARINO; THOMAS WOODS, Plaintiffs-Appellees v. COCA-COLA
REFRESHMENTS USA, INC.; THE COCA-COLA COMPANY; THE COCA-COLA
COMPANY; BCI COCA-COLA BOTTLING COMPANY; COCA COLA BOTTLING COMPANY
OF SONORA, CALIFORNIA, INC., Defendants-Appellants, Case No.
20-15742 (9th Cir.), the U.S. Court of Appeals for the Ninth
Circuit reversed the order of the district court granting class
certification in a multidistrict consumer action alleging
mislabeling of Coke.
The Plaintiffs in the class action contend that phosphoric acid is
a chemical preservative or an artificial flavor; that Coca-Cola
misled the public by using the advertising slogan "no artificial
flavors. no preservatives added. since 1886" even though Coke
contains phosphoric acid; and that Coca-Cola continues to mislabel
its product by not including a required disclosure that phosphoric
acid is an "artificial flavor" or a "preservative."
Coca-Cola appeals an order of the district court granting class
certification in a multidistrict consumer action alleging
mislabeling of Coke.
The Ninth Circuit reviews de novo a district court's determination
of whether a party has standing under Article III, citing In re
Facebook, Inc. Internet Tracking Litig., 956 F.3d 589, 597 (9th
Cir. 2020). Again, citing Davidson v. Kimberly-Clark Corp., 889
F.3d 956, 969 (9th Cir. 2018), it concludes that the Plaintiffs
have not demonstrated a threat of future harm sufficient to support
their claim for injunctive relief.
Discussion
I.
The Ninth Circuit explains that under Davidson, "a previously
deceived consumer may have standing to seek an injunction against
false advertising or labeling, even though the consumer now knows
or suspects that the advertising was false at the time of the
original purchase, because the consumer may suffer an 'actual and
imminent, not conjectural or hypothetical' threat of future harm."
Davidson offered two non-exclusive examples of threatened future
harm a consumer complaining of assertedly false labeling might
plausibly allege: "she will be unable to rely on the product's
advertising or labeling in the future, and so will not purchase the
product although she would like to" and "she might purchase the
product in the future, despite the fact it was once marred by false
advertising or labeling, as she may reasonably, but incorrectly,
assume the product was improved."
In Davidson, the plaintiff contended that Kimberly-Clark falsely
labeled its wipes as "flushable" and alleged that she "would
purchase truly flushable wipes," a "desire based on her belief that
'it would be easier and more sanitary to flush the wipes than to
dispose of them in the garbage.'" The alleged harm, "her inability
to rely on the validity of the information advertised on
Kimberly-Clark's wipes," was particular to Davidson, who would be
affected "in a personal and individual way" because of her desire
to purchase the product as advertised. And at the motion to dismiss
stage, her plausible allegations that she "would purchase truly
flushable wipes manufactured by Kimberly-Clark if it were possible"
made the informational injury she suffered concrete.
The Ninth Circuit holds that none of the Plaintiffs in the case
allege a desire to purchase Coke as advertised, that is, free from
what they believe to be artificial flavors or preservatives, nor do
they allege in any other fashion a concrete, imminent injury.
Instead, as the Plaintiffs explained in their brief, they have
"each stated that if Coke were properly labeled, they would
consider purchasing it." Under governing law, the Ninth Circuit
finds that such an abstract interest in compliance with labeling
requirements is insufficient, standing alone, to establish Article
III standing. Moreover, the imminent injury requirement is not met
by alleging that the Plaintiffs would consider purchasing Coke.
II.
Specifically, Engurasoff testified that he has not stopped drinking
Coke but has not bought any since April or May of 2012. Engurasoff
was not directly asked about future purchase decisions and did not
submit a declaration. Dube testified that had she known that Coke
contained artificial flavors and chemical preservatives in 2008,
she would have bought "very limited quantities" of it "[b]ecause I
would have known that it wasn't as healthy an option as I thought
it was." But she did not specify whether she would want to purchase
Coke in the future. Without any stated desire to purchase Coke in
the future, Engurasoff and Dube do not have standing to pursue
injunctive relief.
Four plaintiffs, Ogden, Merritt, Sowizrol, and Lazaroff, submitted
declarations stating that they "would consider purchasing" Coke
depending on "several factors, including but not limited to what
disclosures Coca-Cola provided regarding phosphoric acid or any
other ingredient in Coke, whether Coca-Cola removed phosphoric
acid, and what, if anything, replaced phosphoric acid, and the
price of Coke relative to other beverages." To have standing to
seek injunctive relief, the "threatened injury must be certainly
impending to constitute injury in fact" and "allegations of
possible future injury are not sufficient." These plaintiffs'
declarations that they would "consider" purchasing properly labeled
Coke are insufficient to show an actual or imminent threat of
future harm.
Finally, Woods and Marino explained that they were not concerned
with phosphoric acid, but rather with whether Coca-Cola was telling
the truth on its product's labels. Both asserted that they would be
interested in purchasing Coke again if its labels were accurate,
regardless of whether it contained chemical preservatives or
artificial flavors. A plaintiff "cannot satisfy the demands of
Article III by alleging a bare procedural violation." And "an
'asserted informational injury that causes no adverse effects
cannot satisfy Article III.'" Woods' and Marino's desire for
Coca-Cola to truthfully label its products, without more, is
insufficient to demonstrate that they have suffered any
particularized adverse effects.
As none of the Plaintiffs have demonstrated harm or imminence
rising to the level of that alleged in Davidson, the Ninth Circuit
holds that they have not adequately alleged an injury in fact and
do not have standing to pursue injunctive relief.
Order
Based on the foregoing, the Ninth Circuit reversed the district
court's order granting class certification.
A full-text copy of the Court's Aug. 31, 2021 Memorandum is
available at https://tinyurl.com/yv3kyjdc from Leagle.com.
MICHIGAN: Court Denies Bid for Attorney Fees in Doe v. Curran
-------------------------------------------------------------
In the lawsuit styled JOHN DOE and JOHN DOE 2, Plaintiffs v.
BRENDAN P. CURRAN et al., Defendants, Case No. 18-11935 (E.D.
Mich.), District Judge Robert H. Cleland of the U.S. District Court
for the Eastern District of Michigan, Southern Division, denies the
Plaintiffs' motion for attorney fees without prejudice.
Plaintiffs John Doe 1 and John Doe 2 filed a one-count civil rights
complaint alleging that the Defendants, who are various Michigan
state and county government and law enforcement officials, violated
their rights under the Fourteenth Amendment by enforcing against
them unconstitutional portions of Michigan's Sex Offender
Registration Act ("SORA"). The Plaintiffs' complaint sought
declaratory and injunctive relief related to certain allegedly
unconstitutional provisions of SORA, monetary damages, and attorney
fees.
On July 12, 2018, the Court granted the Plaintiffs' motion for
preliminary injunction--enjoining the Defendants from prosecuting
Doe 1 for living within a student safety zone. In November 2019,
the case was reassigned to Judge Cleland as a companion to the
certified class action Does v. Snyder, No. 16-13137 (E.D. Mich.)
("Does II"). A stipulated order was entered continuing the
preliminary injunction "until the resolution of Does II" because
the Plaintiffs appeared to be members of the certified class in
Does II.
On Jan. 10, 2020, the Court issued an opinion granting summary
judgment to the Defendants on all of the Plaintiffs' individual
capacity claims, denying without prejudice the Plaintiffs' and the
Defendants' motions as they relate to the official capacity claims
and staying the proceedings until the court issues a decision in
Does II.
Before a final judgment had been issued in this case, or in the
Does II class action, the Plaintiffs filed the present motion for
attorneys' fees pursuant to Federal Rule of Civil Procedure 54 and
42 U.S.C. Section 1988(b). The Plaintiffs contend that they are the
"prevailing party" on their 42 U.S.C. Section 1983 constitutional
claim based on the preliminary relief obtained in the case because
the relief, even though preliminary in nature, materially changed
the prosecutor's behavior toward the Plaintiffs.
The Defendants filed two response briefs opposing the motion for
attorneys' fees. The Defendants oppose the request on its
merits--arguing that the Plaintiffs can never be a prevailing party
in the present suit because they are members of a class in Does II
addressing the same claims. The Defendants also argue that the
Plaintiffs' motion should be denied as premature because this case
is stayed pending the outcome in Does II.
While a final judgment has now been issued in Does II, see Does,
No. 16-13137 (E.D. Mich. Aug. 26, 2021), the Court agrees that the
Plaintiffs' request for attorneys' fees is premature because a
final judgment has not been issued in the present matter and the
case has been stayed. The Court finds that it should first
determine the proper disposition of this case before it considers
the matter of attorneys' fees. Consequently, the Plaintiffs' motion
will be denied without prejudice.
Since a final judgment has now been entered in Does II, the court
will lift the stay in this case and will schedule a status
conference to discuss the parties' respective views on the proper
final disposition of this case and the outstanding preliminary
injunction. The parties should make efforts to jointly confer
before the status conference to determine if an agreement can be
reached on the appropriate next steps.
Accordingly, the Court ruled that the Plaintiff's motion for
attorney's fees is denied without prejudice, and the stay in this
matter is lifted.
A full-text copy of the Court's Order dated Aug. 30, 2021, is
available at https://tinyurl.com/4zn2paxd from Leagle.com.
MOLEKULE INC: Faces Another Suit Over Mislabeled Air Purifiers
--------------------------------------------------------------
Corrado Rizzi, writing for ClassAction.org, reports that air
purifiers made by Molekule, Inc. are the subject of another
proposed class action that alleges the company's marketing of the
products is built on "false, deceptive and misleading claims"
spread pervasively through social media and online and print media.
The 23-page lawsuit alleges Molekule's marketing claims for its
Air, Air Pro, Air Mini and Air Mini+ air purifiers are bunk in that
the products can neither eliminate/destroy 100 percent of indoor
pollutants, including bioaerosols and volatile organic compounds,
nor perform better than comparable products that use HEPA-filter
technology. Molekule's air purifiers also fail to perform as
advertised when it comes to relieving the symptoms and severity of
allergies and asthma, the suit claims.
Overall, Molekule has allegedly failed to honestly identify and
describe the components, attributes and features of its air
purifiers relative to themselves and comparable items, and the
value of the products is materially less than what the company has
represented, the case says.
"Had Plaintiff and proposed class members known the truth, they
would not have bought the Products or would have paid less for it
[sic]," the complaint reads, echoing at least two other lawsuits.
The lawsuit relays that despite Molekule's advertising statements,
the company's products were found to be ineffective at purifying
the air. According to the complaint, Consumer Reports ranked
Molekule in 2019 as the third-lowest among a test of 48 air
purifiers, and the same year the National Advertising Division of
the Better Business Bureau determined the company's claims related
to pollution removal, the superiority of PECO over HEPA technology,
and allergy and asthma relief were unsupported. The case says that
although Molekule agreed to remove and modify certain claims after
the National Advertising Division action, the "pervasive nature" of
the company's advertising has ensured consumers will rely on
"false, deceptive and misleading claims" when shopping for an air
purifier.
Challenged in the case is Molekule's testing of its air purifiers.
Per the suit, the company's product testing does not substantiate
its pollution-fighting claims, in part because the air purifiers
were not tested in a consumer-relevant environment or in conditions
in which aerosols and pollutants were introduced directly into the
device, the filing says:
"Consumer relevant conditions would have required the challenge
aerosols to be introduced into a larger surrounding chamber as part
of a 'recirculating test' to assess the ability of the Product to
clean pollutants from the air of a room-sized chamber. Therefore,
the test's results do not accurately reflect the actual marketed
Product's effectiveness at removing pollutants as typically present
in an actual entire room."
As the lawsuit tells it, this means Molekule's much-touted Photo
Electrochemical Oxidation (PECO) technology has not been proven to
be able to completely eliminate airborne mold, allergens, viruses
and bacteria in minutes as advertised.
Moreover, although Molekule promotes the apparent ability of its
air purifiers to eliminate harmful volatile organic compounds
(VOCs) from the air, the company's testing to back up these claims
is, according to the case, "flawed for several reasons," including
because the tests were not conducted by independent labs as
Molekule attests or in consumer-relevant conditions.
The suit similarly goes on to contend that no scientific evidence
exists to back up Molekule's claim that its air purifiers can aid
consumers with allergies or asthma. The two human studies used by
the defendant to back these claims, a beta trial and an expanded
study, were insufficient at gathering enough data in order to
accurately claim Molekule's air purifiers performed as advertised,
the case alleges:
"Defendant failed to disclose relevant information to evaluate its
studies.
No data was provided on how the study population was recruited to
insure [sic] it was a representative population.
The small sample size was insufficient to support the sweeping
claims of allergy and asthma relief.
No evidence was provided that the test's duration was sufficient to
evaluate allergy relief.
The studies were not 'blinded,' which increased the potential for
bias given that the test relied entirely on self-reported symptoms.
Moreover, the main author of the studies was defendant's employee."
Therefore, the lawsuit says, Molekule's claims about allergy and
symptom relief are unsupported and rendered false and misleading.
In the same light, consumer and physician testimonials used by
Molekule are off-base given there is no scientific evidence to back
the underlying efficacy claims, the suit contends.
The lawsuit looks to represent consumers in New York who bought any
Molekule air purifier during the applicable statute of limitations
period. The suit also looks to cover consumers in Iowa and Arkansas
who bought the products. [GN]
MORTON SALT: Faces Class Action Over Himalayan Pink Salt Products
-----------------------------------------------------------------
Corrado Rizzi, writing for ClassAction.org, reports that a proposed
class action alleges Morton Salt, Inc. has misrepresented the
location of where its purported Himalayan pink salt products are
sourced.
According to the 20-page complaint, Morton's Himalayan sea salt is
harvested not from "ancient sea salt deposits deep within the
Himalayas" as stated on product labels, but from salt mines
hundreds of miles away in Pakistan.
As a result of the alleged "widespread false and deceptive
advertising" on product labels, Morton has been able to charge
consumers more money for a product they've been misled to believe
comes from the pristine, iron-rich Himalayan Mountains that stretch
across the northeastern portion of India, the suit claims.
"Plaintiff and Class Members would not have paid to purchase
Defendant's Salt Products -- or they would not have paid as much as
they did to purchase it -- had they known that the Salt Products
were not, in fact, 'Himalayan,'" the complaint says.
Although Himalayan pink salt is often marketed as coming from an
anonymous Himalayan mountain location, most salt touted as such is
mined in the Khewra Salt Mine in Northern Pakistan, hundreds of
miles away from the snowy Himalayas, the case begins. Per the suit,
the misrepresentation of the origins of pink salt is so pervasive
that Pakistani officials are set to register Khewra salt with
international trade bodies to ensure the product's true origin is
not "obfuscated by misleading advertising."
Given Morton's labeling of its pink salt, consumers reasonably
expect that the product comes from the Himalayan Mountains, the
suit stresses. Nowhere on the salt's label is it disclosed that the
salt was not mined in the Himalayas, the case says, alleging Morton
knew of the true location where the salt was sourced yet
nevertheless chose to misleadingly label the product.
"On information and belief, Defendant, knew that their Salt
Products were not from the Himalayas, yet chose to include the
Himalayan Claims because it did not believe its customers would
know the difference," the lawsuit alleges.
The case looks to represent all consumers nationwide who've bought
any Morton salt product that was labeled as mined from the
Himalayan Mountains. [GN]
MPC HOLDINGS: Court Conditionally Certifies Class of Inspectors
---------------------------------------------------------------
In the class action lawsuit captioned as MARCUS MORRIS v. MPC
HOLDINGS, INC., d/b/a Platte River Inspection Services, Case No.
1:20-cv-02840-CMA-NYW (D. Colo.), the Hon. Judge Christine M.
Arguello entered an order that:
-- Plaintiffs' renewed expedited motion for conditional
certification and notice to putative class members is
granted;
-- An FLSA collective action of the following individuals is
hereby conditionally certified:
"All current and former inspectors who worked for or on
behalf of Platte River Inspection Services and who were
paid according to it is day rate pay plan in the past
three years (the "Day Rate Inspectors");
-- Plaintiff's proposed Notice of Collective Action Lawsuit
is approved;
-- Plaintiff may send a single reminder notice by email to
the putative class members after 30 days;
-- The parties shall confer in an attempt to agree on the
form of the reminder notice. If the parties are unable to
agree, they shall so notify the Court by filing a joint
summary of the dispute, not to exceed 3 double-spaced
pages, within 14 days of the date of this Order.
The Court finds that Plaintiff has carried his minimal burden at
the notice stage of asserting "substantial allegations that the
putative class members were together the victims of a single
decision, policy, or plan. The Plaintiff alleges that all of the
putative class members were subject to the same unlawful policies
and/or practices that resulted in Fair Labor Standards Act (FLSA)
violations. Specifically, the Plaintiff alleges that Defendant
"uniformly applied its policy of paying its Inspectors, including
Morris, a day rate with no overtime compensation," even when they
worked over forty hours per week.
The Defendant argues, however, that this Court should apply a more
rigorous conditional-certification standard. It contends that,
rather than following the Tenth Circuit precedent, this Court
should follow the approach adopted by the Fifth Circuit in Swales
v. KLLM Transport Services, L.L.C., 985 F.3d 430 (5th Cir. 2021).
The Court rejects this argument. "[T]his Court is bound by
long-standing Tenth Circuit precedent mandating the application of
the two-step conditional certification process for collective
actions brought under the FLSA." The Court declines Defendant's
invitation to depart from well-established precedent.
The Plaintiff Morris worked for Defendant MPC Holdings as a
horizontal directional drilling inspector. The Plaintiff alleges
that he and other inspectors who worked for Defendant regularly
worked in excess of 40 hours per week but were not paid overtime.
The Plaintiff claims that Defendant's compensation practices
violated the FLSA.
He is suing Defendant for unpaid overtime wages and other damages.
The Plaintiff now seeks to have his lawsuit certified as a
collective action.
A copy of the Court's order dated Sept. 9, 2021 is available from
PacerMonitor.com at https://bit.ly/3hx7VDz at no extra charge.[CC]
NATIONAL FOOTBALL: Dent Seeks to Certify Class of Football Players
------------------------------------------------------------------
In the class action lawsuit captioned as RICHARD DENT, et al.,
Individually and on Behalf of All Others Similarly Situated, v.
NATIONAL FOOTBALL LEAGUE, a New 22 York Unincorporated Association,
Case No. 3:14-cv-02324-WHA (N.D. Cal.), the Plaintiffs ask the
Court pursuant to Rule 23 of the Federal Rules of Civil Procedure,
to enter an order:
a. certifying a class defined as:
"All NFL players who played in the National Football
League ("NFL" or "League") at any time between January 1,
1973 and December 31, 2008, and who received Medications
from an NFL club, including, but not limited to, opioids
(such as Vicodin, Percocet, Percodan, Hydrocodone, etc.),
non-steroidal anti-inflammatory drugs (such as Toradol,
Vioxx, Naprosyn, Indocin, Celebrex, etc.), corticosteroids
(such as Prednisone), or local anesthetics (such as
Lidocaine, Xylocaine, etc.);"
b. appointing them as class representatives; and
c. appointing their counsel as class counsel.
The Plaintiffs contend that their claim of negligence meets the
requirements for certification under Rule 23(b)(3) because the
central issues in this case -- whether the NFL voluntarily assumed
a duty to protect the health and safety of its players, whether the
NFL breached that duty, and general causation -- are "capable of
resolution in one fell swoop[,]" Jabbari v. Farmer, 965 F.3d 7
1001, 1006 (9th Cir. 2020), such that resolving those issues on a
piecemeal basis for thousands of retired NFL players, potentially
risking inconsistent rulings or verdicts, makes little sense.
The National Football League is a professional American football
league consisting of 32 teams, divided equally between the National
Football Conference and the American Football Conference.
A copy of the Plaintiffs' motion to certify class dated Sept. 7,
2021 is available from PacerMonitor.com at https://bit.ly/3lrV07g
at no extra charge.[CC]
The Plaintiffs are represented by:
William N. Sinclair, Esq.
Steven D. Silverman, Esq.
Andrew G. Slutkin, Esq.
Joseph F/ Murphy, Jr., Esq.
Phillip J. Closius, Esq.
Christopher Macchiaroli, Esq.
SILVERMANǀTHOMPSONǀSLUTKINǀWHITEǀLLC
201 N. Charles Street, Suite 2600
Baltimore, MD 21201
Telephone: (410) 385-2225
Facsimile: (410) 547-2432
E-mail: bsinclair@silvermanthompson.com
ssilverman@silvermanthompson.com
aslutkin@silvermanthompson.com
jmurphy@silvermanthompson.com
pclosius@silvermanthompson.com
cmacchiaroli@silvermanthompson.com
-and -
Stuart A. Davidson, Esq.
Mark J. Dearman, Esq.
ROBBINS GELLER RUDMAN
& DOWD LLP
120 East Palmetto Park Road, Suite 500
Boca Raton, FL 33432
Telephone: (561) 750-3000
Facsimile: (561) 750-3364
E-mail: sdavidson@rgrdlaw.com
mdearman@rgrdlaw.com
- and -
Mel T. Owens, Esq.
NAMANNY BYRNE & OWENS, P.C.
2 South Pointe Drive, Suite 245
Lake Forest, CA 92630
Telephone: (949) 452-0700
Facsimile: (949) 452-0707
E-mail: mowens@nbolaw.com
NEW YORK: Floyd Appeals Order in NYPD Stop & Frisk Suit to 2nd Cir.
-------------------------------------------------------------------
Plaintiff David Floyd filed an appeal from a court ruling entered
in the lawsuit styled DAVID FLOYD, et al., Plaintiffs v. CITY OF
NEW YORK, Defendant, Case No. 08-cv-1034, in the U.S. District
Court for the Southern District of New York (New York City).
The case is about the tension between liberty and public safety in
the use of a proactive policing tool called "stop and frisk." The
New York City Police Department made 4.4 million stops between
January 2004 and June 2012. Over 80% of these 4.4 million stops
were of blacks or Hispanics. In each of these stops a person's life
was interrupted. The person was detained and questioned, often on a
public street. More than half of the time the police subjected the
person to a frisk.
The Plaintiffs -- Blacks and Hispanics who were stopped -- argue
that the NYPD's use of stop and frisk violated their constitutional
rights in two ways: (1) they were stopped without a legal basis in
violation of the Fourth Amendment, and (2) they were targeted for
stops because of their race in violation of the Fourteenth
Amendment. The Plaintiffs do not seek to end the use of stop and
frisk. Rather, they argue that it must be reformed to comply with
constitutional limits, says the suit.
On October 11, 2018, the Court entered an order designating as
confidential all information that is shared between the
participants in the remedial process in this matter
(Confidentiality Order).
On March 24, 2021, after Plaintiffs timely notified Monitor that
they intended to file certain information deemed confidential under
the Confidentiality Order, the Monitor filed on the public docket a
motion seeking an order requiring that the Confidential Information
be filed under seal and remain sealed.
On March 25, Plaintiff filed under seal a motion to compel,
requesting that the Court direct the Monitor to (i) provide all
parties equal access to an unfiled draft document (Draft Report)
being prepared by the Monitor's team , and (ii) file on the public
docket the Draft Report before it is shared with the Court, or show
that the sealing of the Draft Report is narrowly tailored to serve
a higher value to comply with the public's constitutional and
common-law right of access.
On Jul 30, 2021, Judge Analisa Torres entered an order granting the
Motion to Seal and denying the Motion to Compel.
The appellate case is captioned as Floyd v. City of New York, Case
No. 21-2091, in the United States Court of Appeals for the Second
Circuit, filed on August 27, 2021.[BN]
Plaintiff-Appellant David Floyd is represented by:
Jonathan Clifford Moore, Esq.
BELDOCK LEVINE & HOFFMAN LLP
99 Park Avenue
New York, NY 10016
Telephone: (212) 353-9587
E-mail: jmoore@blhny.com
Defendants-Appellees City of New York; Mayor Bill de Blasio,
individually and in his official capacity; and Commissioner Raymond
Kelly, New York City Police, in his official capacity and
individually, is represented by:
Georgia Mary Pestana, Esq.
NEW YORK CITY LAW DEPARTMENT
100 Church Street
New York, NY 10007
Telephone: (212) 356-2400
NEW YORK: Landlords' Class Action Challenges Eviction Moratorium
----------------------------------------------------------------
Tara Lynch, writing for WETM, reports that landlords and building
owners say enough is enough when it comes to the eviction
moratorium and the New York Rental Assistance Program. A
class-action lawsuit by several state landlords challenges the
Cuomo Administration's moratorium, which did not allow property
owners to question hardship claims made by their tenants.
The Supreme Court heard a similar case just a few weeks ago and
sided with the landlords, saying it was unconstitutional. Now, the
Hochul-era moratorium extended these benefits but gives more rights
to landlords. They can challenge hardship claims and if the tenant
made false claims, property owners can evict.
"Tenants were able to check a box basically saying I can't pay
rent. There was nothing we could do as far as evictions were
concerned," Michelle McClelland, property manager with BGM
Apartments, told 18 News.
Since the Supreme Court decision came down before the landlords
could go to court, the Sept. 7 decision was a simple one: revise
the petition and refile.
The Hochul Administration promised several benefits to both
landlords and tenants in the new eviction moratorium bill, which
extends rent assistance through January 15 of next year. Landlords
remain skeptical, though, as Federal Rent Relief dollars are still
waiting to be distributed. The burden of proof now lies with
property managers, who must have evidence showing their tenants are
falsely claiming benefits.
"How do I prove this person is working? How do I prove that that
person has an illness that prevents them from being safe to look
for other housing?" McClelland added.
According to a U.S. Treasury Department Report with data through
June 30, New York ranked last in its distribution of Federal rental
assistance money from December 2020. Less than one percent had been
allocated to landlords. According to the U.S. Census Bureau, more
than 5,000 homes across the Southern Tier are behind on their
payments. Even with aid from the government, McClelland says back
rent is not always paid in full.
She is willing to work with tenants to find a payment plan that
works for them and BGM Apartments claims to have made agreements
with occupants who struggled during the pandemic.
"It is frustrating because I feel as though the responsibility has
been put on us versus New York State," McClelland concluded.
According to Albany, rent relief is on the way for those who
qualified and applied, but landlords and tenants remain stuck in
the middle. [GN]
NEW YORK: Ligon Appeals Order in NYPD Stop & Frisk Suit to 2nd Cir.
-------------------------------------------------------------------
Plaintiff Jaenean Ligon filed an appeal from a court ruling entered
in the lawsuit styled JAENEAN LIGON, et al., Plaintiffs v. CITY OF
NEW YORK, Defendant, Case No. 12-cv-2274, in the U.S. District
Court for the Southern District of New York (New York City).
This action, brought on behalf of twelve New York City residents,
one former New York City resident, and a class of similarly
situated individuals, challenges the New York City Police
Department's unconstitutional stop, question, search, citation, and
arrest policies implemented pursuant to "Operation Clean Halls," a
program that allows police officers to patrol inside and around
thousands of private residential apartment buildings across the
City. Each year this program results in thousands of illegal stops,
searches, summonses, and arrests of those buildings' residents and
their invited guests without cause.
Allegedly, the NYPD's abusive practices of stopping, questioning,
searching, citing, and arresting residents of Clean Halls Buildings
and their visitors without adequate cause violate the United States
and New York Constitutions, the Fair Housing Act, and New York
common law. The Plaintiffs seek a declaration that the NYPD's
practices are unlawful and an injunction against those practices.
On October 11, 2018, the Court entered an order designating as
confidential all information that is shared between the
participants in the remedial process in this matter
(Confidentiality Order).
On March 24, 2021, after Plaintiffs timely notified Monitor that
they intended to file certain information deemed confidential under
the Confidentiality Order, the Monitor filed on the public docket a
motion seeking an order requiring that the Confidential Information
be filed under seal and remain sealed.
On March 25, Plaintiff filed under seal a motion to compel,
requesting that the Court direct the Monitor to (i) provide all
parties equal access to an unfiled draft document (Draft Report)
being prepared by the Monitor's team , and (ii) file on the public
docket the Draft Report before it is shared with the Court, or show
that the sealing of the Draft Report is narrowly tailored to serve
a higher value to comply with the public's constitutional and
common-law right of access.
On Jul 30, 2021, Judge Analisa Torres entered an order granting the
Motion to Seal and denying the Motion to Compel.
The appellate case is captioned as Ligon v. City of New York, Case
No. 21-2089, in the United States Court of Appeals for the Second
Circuit, filed on August 27, 2021.[BN]
Plaintiff-Appellant Jaenean Ligon, individually and on behalf of
her minor son, J.G., is represented by:
Guadalupe Victoria Aguirre, Esq.
NEW YORK CIVIL LIBERTIES UNION
125 Broad Street
New York, NY 10004
Telephone: (212) 607-3366
Defendants-Appellees City of New York; Mayor Bill de Blasio,
individually and in his official capacity; and Commissioner Raymond
Kelly, New York City Police, in his official capacity and
individually, is represented by:
Georgia Mary Pestana, Esq.
NEW YORK CITY LAW DEPARTMENT
100 Church Street
New York, NY 10007
Telephone: (212) 356-2400
NMC HEALTH: November 30 Settlement Fairness Hearing Set
-------------------------------------------------------
Pomerantz LLP and The Rosen Law Firm, P.A. on Sept. 7 disclosed
that the United States District Court for the Central District of
California has approved the following announcement of a proposed
partial class action settlement that would benefit purchasers of
NMC Health PLC common stock (OTCMKTS: NMHLY):
SUMMARY NOTICE OF PENDENCY AND PROPOSED PARTIAL SETTLEMENT OF CLASS
ACTION
TO: ALL PERSONS WHO PURCHASED OR ACQUIRED NMC HEALTH PLC ("NMC")
AMERICAN DEPOSITARY SHARES ("ADSs") BETWEEN MARCH 13, 2016 AND
MARCH 10, 2020, BOTH DATES INCLUSIVE
THIS NOTICE WAS AUTHORIZED BY THE COURT. IT IS NOT A LAWYER
SOLICITATION. PLEASE READ THIS SUMMARY NOTICE CAREFULLY AND IN ITS
ENTIRETY. PLEASE REVIEW THE NOTICE OF PENDENCY AND PROPOSED PARTIAL
SETTLEMENT OF CLASS ACTION ("NOTICE") POSTED AT
WWW.STRATEGICCLAIMS.NET/NMCHEALTH/ FOR ADDITIONAL DETAILS AND
INSTRUCTIONS.
YOU ARE HEREBY NOTIFIED that a hearing will be held in the
above-captioned action (the "Action") on November 30, 2021, at
10:00 a.m., before the Honorable Consuelo B. Marshall in Courtroom
8B of the United States District Court for the Central District of
California, 350 West 1st Street, Los Angeles, California 90012, to
determine: (1) whether the proposed Settlement of the Settlement
Class's claims against Defendant H.J. Mark Tompkins ("Tompkins" or
"Settling Defendant") for $120,000 should be approved as fair,
reasonable and adequate; (2) whether the proposed Plan of
Allocation is fair, just, reasonable, and adequate; (3) whether the
Court should permanently bar and enjoin the assertion of any claims
against the Tompkins Released Parties that arise from or relate to
the subject matter of the Action; (4) whether the Action should be
dismissed with prejudice against Tompkins as set forth in the
Stipulation and Agreement of Settlement ("Settlement Stipulation")
filed with the Court; and (5) whether the application by Co-Lead
Counsel for reimbursement of reasonable expenses should be
approved. At the Court's discretion, the Final Approval Hearing may
be telephonic, in which case call-in details will be displayed by
the Claims Administrator at its website:
www.strategicclaims.net/nmchealth/.
IF YOU PURCHASED OR OTHERWISE ACQUIRED NMC ADSs FROM MARCH 13, 2016
TO MARCH 10, 2020, BOTH DATES INCLUSIVE, YOUR RIGHTS MAY BE
AFFECTED BY THE SETTLEMENT OF THIS ACTION.
To share in the distribution of the Net Settlement Fund, you must
establish your rights by submitting a Proof of Claim and Release
Form ("Proof of Claim"), postmarked or delivered to the Claims
Administrator (see address below) no later than October 30, 2021.
Your failure to submit your Proof of Claim by October 30, 2021,
will subject your claim to rejection and preclude your receiving
any of the recovery in connection with the Settlement of the
Action. If you are a member of the Settlement Class and do not
request exclusion, you will be bound by the Settlement and any
judgment and release entered in the Action, including, but not
limited to, the Judgments, whether or not you submit a Proof of
Claim.
A copy of the Notice, which more completely describes the
Settlement and your rights thereunder (including your right to
object to the Settlement or exclude yourself from the Settlement),
a Proof of Claim form, and the Settlement Stipulation (which, among
other things, contains definitions for the defined terms used in
this Summary Notice) may be obtained online at
www.strategicclaims.net/nmchealth/, or by writing to:
NMC Health PLC Securities Litigation
c/o Strategic Claims Services
P.O. Box 230
600 N. Jackson Street, Suite 205
Media, Pennsylvania 19063
Telephone: 1-866-274-4004
Fax: 1-610-565-7985
info@strategicclaims.net
Inquiries should NOT be directed to Defendants, the Courts, or the
Clerks of the Courts. Inquiries may also be made to a
representative of Co-Lead Counsel:
Joshua B. Silverman, Esq.
POMERANTZ LLP
10 S. LaSalle St., Ste. 3505
Chicago, IL 60603
Telephone: (312) 377-1181
Phillip Kim, Esq.
THE ROSEN LAW FIRM, P.A.
275 Madison Ave., 40th Fl.
New York, NY 10016
Telephone: (212) 686-1060
Co-Lead Counsel
IF YOU DESIRE TO BE EXCLUDED FROM THE SETTLEMENT CLASS, YOU MUST
SUBMIT A REQUEST FOR EXCLUSION SUCH THAT IT IS RECEIVED BY THE
CLAIMS ADMINISTRATOR NO LATER THAN NOVEMBER 9, 2021, IN THE MANNER
AND FORM EXPLAINED IN THE NOTICE. ALL MEMBERS OF THE SETTLEMENT
CLASS WHO HAVE NOT REQUESTED EXCLUSION FROM THE SETTLEMENT CLASS
WILL BE BOUND BY THE JUDGMENTS ENTERED IN THE ACTION EVEN IF THEY
DO NOT FILE A TIMELY PROOF OF CLAIM.
IF YOU ARE A SETTLEMENT CLASS MEMBER, YOU HAVE THE RIGHT TO OBJECT
TO THE SETTLEMENT, THE PLAN OF ALLOCATION, AND/OR THE REQUEST BY
CO-LEAD COUNSEL FOR AN AWARD OF EXPENSES. ANY OBJECTIONS MUST BE
FILED WITH THE COURT, CO-LEAD COUNSEL, AND COUNSEL FOR THE SETTLING
DEFENDANT BY NOVEMBER 9, 2021, IN THE MANNER AND FORM EXPLAINED IN
THE NOTICE.
DATED: AUGUST 12, 2021
BY ORDER OF THE UNITED STATES DISTRICT COURT FOR THE
CENTRAL DISTRICT OF CALIFORNIA
HONORABLE CONSUELO B. MARSHALL [GN]
NORTONLIFELOCK INC: Esa's State Law Claims Tossed W/o Prejudice
---------------------------------------------------------------
The U.S. District Court for the Northern District of California
dismisses without prejudice state law claims in the lawsuit titled
ELLIEMARIA TORONTO ESA, Plaintiff v. NORTONLIFELOCK INCORPORATED,
et al., Defendants, Case No. 20-cv-05410-RS (N.D. Cal.).
According to the Defendants, this is one of six or more "cookie
cutter" derivative complaints recently filed by the Plaintiff's
counsel against various companies, all involving those companies'
efforts (or lack thereof) to have boards, management, and/or
workforces that appropriately reflect racial and gender diversity.
In this case, the Plaintiff's focus is on an alleged historical
lack of black board members at Nominal Defendant NortonLifeLock,
Inc.
Chief District Judge Richard Seeborg opines that without
questioning that there may be systemic under-representation in
corporate boardrooms, or the Plaintiff's good faith in looking for
legal recourse, the flaws in this putative class action complaint
require dismissal. State law claims subject to a forum selection
clause will be severed and dismissed without prejudice.
Background
In 2019, the California-based company known as Symantec spun off
its consumer computer and identity protection assets, which were
then set up as Defendant NortonLifeLock in Arizona. The Plaintiff's
basic liability theory is that NortonLifeLock's proxy statements
filed in connection with the 2018, 2019, and 2020 annual
shareholders' meetings were materially misleading. The Plaintiff
contends the Defendants represented that the company is committed
to diversity and that the Board of Directors actively seeks
diversity among its members, but that is false.
The Plaintiff asserts that contrary to the statements and
implications in the proxies, the Board has never in good faith
actively sought minority candidates and, in fact, impeded
nomination of qualified Black directors through its maintenance of
"proxy access" provisions and refusal to adopt term limits for
directors. The "proxy access" provisions about which the Plaintiff
complains only permit nominations to the Board by shareholders or
groups of shareholders who have at owned at least 3% of the
company's outstanding shares--about $371 million
worth--continuously for at least 3 years.
The Plaintiff contends the effect of these provisions is to limit
severely the number and diversity of new candidates. The Defendants
insist the provisions are completely typical for large public
corporations, have neither a discriminatory intent nor effect, and
are necessary to make the election process manageable.
The Plaintiff also contends the proxies were also materially
misleading because they asked shareholders to vote in favor of
executive compensation "say on pay" proposals, but failed to
disclose that none of NortonLifeLock's executive compensation
decisions actually take into consideration whether the executives
have been successful in achieving the company's stated diversity
and inclusion goals. Rather, the Plaintiff alleges, issues relating
to diversity do not carry significant weight in setting executive
compensation and over 90% of executive compensation is based on the
company's financial performance.
Without making pre-suit demand on the Board, the Plaintiff filed
this action purporting to assert claims on NortonLifeLock's behalf
against the Individual Defendants for violation of Section 14(a) of
the Securities Exchange Act of 1934, as well as common law claims
for breach of fiduciary duty, aiding and abetting, abuse of
control, and unjust enrichment.
The Plaintiff alleges that as a result of the Defendants' purported
failure "to create any diversity at the very top of the Company,"
its reputation, goodwill, and market capitalization have been
harmed. The Plaintiff also alleges the company has expended, and
will continue to expend, significant sums of money for (1) costs
incurred from having to hire new employees to replace unspecified
personnel who purportedly have quit in protest over the Defendants'
misconduct, and (2) costs incurred from defending and paying
settlements in discrimination lawsuits. The Plaintiff names 12
current and former directors individually, only one of whom is also
a NortonLifeLock employee.
Discussion
A. Forum selection
NortonLifeLock's bylaws contain a forum selection clause purporting
to require all derivative actions, with two exceptions, to be
brought in Chancery Court in Delaware.
Judge Seeborg notes that there is no argument that NortonLifeLock's
forum selection clause is not generally enforceable, or that it
would not ordinarily apply to derivative actions against the Board.
The sole dispute is whether the forum selection clause can be
applied to the federal Exchange Act claim, over which the Delaware
Chancery Court unarguably lacks jurisdiction.
The Defendants contend the forum selection provision has only two
exceptions, and if neither applies, then it does not matter if the
Chancery Court can adjudicate the Exchange Act claim per
se--rather, the rule generally applicable to forum selection
clauses is that they are enforceable unless the designated forum
effectively leaves the Plaintiff with no meaningful remedies at
all. The Defendants argue that because Delaware state law in fact
provides remedies roughly equivalent to the Exchange Act for
similar wrongdoing, the forum selection clause may be enforced even
though the Plaintiff will, thereby, be precluded from pursuing her
Exchange Act claim under that precise legal label and theory.
Accordingly, the state law claims are dismissed without prejudice
to their reassertion in the Delaware Court of Chancery.
B. Demand futility
Although the complaint asserts there were only eight board members
at the time of filing, such that the Plaintiff would have to show
disqualification of four, the parties now agree there were nine
board members and the Plaintiff must show that at least five of
them could not have properly responded to a demand. What the
parties refer to as "the Demand Board" consists of Vincent Pilette
(CEO) (director since 2019), Frank E. Dangeard (director since
2007), Sue Barsamian (director since 2019), Nora Denzel (director
since 2019), Peter A. Feld (director since 2018), Kenneth Y. Hao
(director since 2016), David W. Humphrey (director since 2016), V.
Paul Unruh (director since 2005), and Eric K. Brandt (director
since 2020).
While the Board may not have included any black members until after
the complaint was filed, it apparently has included women and other
racial minorities, Judge Seeborg observes.
The Plaintiff also argues her claim can proceed under the demand
futility standard articulated in Aronson v. Lewis, 473 A.2d 805
(Del. 1984), insofar as she alleges the Board ignored unlawful and
discriminatory practices.
Judge Seeborg finds that the Plaintiff does not point to a specific
decision or decisions to which an Aronson analysis is well-suited.
Even if that were not so, the Plaintiff's invocation of Aronson
adds nothing of substance, because it merely allows her to show
demand futility either under the Rales v. Blasband, 634 A.2d 927,
934 (Del. 1993) standard or by showing that a challenged board
action was not a valid exercise of business judgment. The Plaintiff
does not argue the second option here, instead only asserting
interestedness and a lack of independence.
Judge Seeborg holds that the Plaintiff has not adequately alleged
demand futility, and the Section 14(a) claim must be dismissed.
C. Rule 12 (b)(6)
An argument could be advanced that if demand has not been made or
excused, the plaintiff lacks standing to bring the claim, such that
a court should not pass on the merits of the pleading, Judge
Seeborg notes. In this instance, however, consideration of the
Defendants' challenge to the complaint under Rule 12(b)(6) is
appropriate as an alternative basis for dismissal.
The Plaintiff seeks to impose liability under Section 14(a) of the
Exchange Act. To state a claim under that section and the related
SEC Rule 14a-9, the Plaintiff must allege that the proxy statements
contained either (1) a false or misleading declaration of material
fact, or (2) an omission of material fact that makes any portion of
the statement misleading.
Judge Seeborg opines that the complaint here simply does not
plausibly plead an actionable false statement.
Conclusion
The Plaintiff's claim under Section 14(a) is dismissed for failure
to allege demand futility and/or for failure to state a claim. Any
amended complaint will be filed within 30 days of the date of this
order. The Plaintiff's common law claims are dismissed without
prejudice to refiling in Delaware, pursuant to the forum selection
clause.
A full-text copy of the Court's Order dated Aug. 30, 2021, is
available at https://tinyurl.com/tux7hkna from Leagle.com.
OPPENHEIMER & CO: Investors File Class Action Over Ponzi Scheme
---------------------------------------------------------------
Abraham Jewett, writing for Top Class Actions, reports that
Oppenheimer & Co, an international investment firm, helped one of
its advisors operate a Ponzi scheme that stole $110 million dollars
from investors over more than a decade, a new class action lawsuit
alleges.
The investors, represented by the company 6694 Dawson Blvd, LLC,
claim Oppenheimer went so far as to let the advisor, John J. Woods,
quietly resign in late 2016 without revealing the wrongdoing in an
attempt to conceal the Ponzi scheme from regulators and the
investing public.
The plaintiffs claim Woods founded "Horizon Private Equity, III,
LLC" in 2008 while working as an investment advisor for
Oppenheimer, at which time he began marketing the unapproved
security to Oppenheimer's customers and the general investing
public.
The plaintiffs -- who say they invested $200,000 into Horizon
Private -- want to represent themselves and a nationwide Class of
consumers who invested in Horizon Private between 2008 and the
present.
Firm Let Ponzi Scheme Operate Next Door, Defrauding Oppenheimer
Investors
Oppenheimer was well aware of Woods' scheme, say the investors. In
fact, he opened an office for Horizon Private right next door to
the firm's branch office, according to the class action lawsuit,
which says Oppenheimer also actively aided members of Woods' family
-- who also worked as advisors at Oppenheimer -- in funneling money
into Horizon Private.
"Woods and other Horizon Private Equity fundraisers walked freely
between the two offices and mingled on a daily basis with the
Oppenheimer branch manager charged with supervising Woods," states
the investors' class action lawsuit.
The plaintiffs claim Horizon Private continued taking Oppenheimer
investors' money for almost five more years through Southport
Capitol, a nationwide Registered Investment Advisory firm.
The Securities & Exchange Commission (SEC) brought civil action
against Woods, Southport Capitol, and Horizon Private in August for
violations of federal securities fraud, according to the class
action lawsuit, which says the SEC sought emergency relief in the
form of asset freezes, appointment of receivership, and a full
accounting.
The SEC's Complaint found that Woods had allegedly stolen $110
million from unsuspecting investors over more than a decade and
that "many of the victims are elderly retirees who were preyed
upon," by Woods and other advisors, according to the Oppenheimer
class action lawsuit.
Plaintiff claims the SEC found that Horizon Private, as of July 1,
has liquid assets worth less than $1 million and owes investors
more than $100 million in principal. A federal judge in Georgia
temporarily froze Horizon Private's assets.
6694 Dawson Blvd LLC alleges the defendants committed negligent
misrepresentation, breach of fiduciary duty, and aiding and
abetting fraud, among other things. It is demanding a jury trial
and seeking relief in the form of damages for themselves and all
Class Members.
A similar class action lawsuit was filed last month alleging
Interactive Brokers allowed fraud to happen on its platform by
helping "prop up" a $23 million ponzi scheme being run by one of
its former brokers.
Have you invested in Horizon Private Equity or ever done business
with Oppenheimer & Co? Let us know in the comments!
The plaintiff is represented by Craig H. Kuglar, Esq of The Law
Offices of Craig Kuglar, LLC, and John S. Chapman, Esq, Jason T.
Albin, Esq, and Philip L. Vujanov of Chapman Albin LLC.
The Oppenheimer Investors Class Action Lawsuit is 6694 Dawson Blvd,
LLC v. Oppenheimer & Co., Inc., et al., Case No. 1:21-cv-03625, in
the U.S. District Court for the Northern District of Georgia. [GN]
OSMOTICA PHARMA: Hearing to Review Settlement Set for Nov. 9
------------------------------------------------------------
Osmotica Pharmaceuticals plc 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 has
scheduled a hearing for November 9, 2021, regarding review of and,
if appropriate, final approval of the settlement in a consolidated
action.
On April 30, 2019, the Company was served with a complaint in an
action entitled Leo Shumacher, et al., v. Osmotica Pharmaceuticals
plc, et al., Superior Court of New Jersey, Somerset County No.
SOM-L-000540-19.
On May 10, 2019, a Complaint entitled Jeffrey Tello, et al., v.
Osmotica Pharmaceuticals plc, et al., Superior Court of New Jersey,
Somerset County No. SOM-L-000617-19 was filed in the same court as
the Shumacher action.
The complaints named the Company, certain of the Company's
directors and officers and the underwriters of the Company's
initial public offering as defendants in putative class actions
alleging violations of Sections 11 and 15 of the Securities Act of
1933 related to the disclosures contained in the registration
statement and prospectus used for the Company's initial public
offering of ordinary shares.
On July 22, 2019, the plaintiffs filed an amended complaint
consolidating the two actions, reiterating the previously pled
allegations and adding an additional individual defendant.
The parties participated in a mediation and reached an agreement in
principle to settle the litigation on December 15, 2020.
The parties subsequently negotiated a settlement agreement setting
forth the terms of the settlement.
On May 18, 2021, plaintiffs filed an unopposed motion for
preliminary approval of the settlement and notice to the proposed
settlement class, which motion was granted by the court on June 11,
2021.
The settlement called for a payment by the Company of $5.25 million
(a portion of which was covered by applicable insurance) which, if
finally approved by the Court, would fully resolve all claims
asserted in the litigation against all defendants named in the
litigation, including the Company. No party would admit any
wrongdoing as part of the proposed settlement, which was reached to
avoid the further cost and distraction of litigation.
The Court has scheduled a hearing for November 9, 2021, regarding
review of and, if appropriate, final approval of the settlement.
Osmotica Pharmaceuticals plc, an integrated biopharmaceutical
company, focuses on the development and commercialization of
pharmaceutical products in the United States, Argentina, and
Hungary. Osmotica Pharmaceuticals plc is headquartered in
Bridgewater, New Jersey.
PAYPAL HOLDINGS: Schall Law Firm Reminds of October 19 Deadline
---------------------------------------------------------------
The Schall Law Firm, a national shareholder rights litigation firm,
reminds investors of a class action lawsuit against PayPal
Holdings, Inc. ("PayPal" or "the Company") (NASDAQ: PYPL) for
violations of Sections 10(b) and 20(a) of the Securities Exchange
Act of 1934 and Rule 10b-5 promulgated thereunder by the U.S.
Securities and Exchange Commission.
Investors who purchased the Company's securities between February
9, 2017 and July 28, 2021, inclusive (the "Class Period"), are
encouraged to contact the firm before October 19, 2021.
We also encourage you to contact Brian Schall of the Schall Law
Firm, 2049 Century Park East, Suite 2460, Los Angeles, CA 90067, at
310-301-3335, to discuss your rights free of charge. You can also
reach us through the firm's website at www.schallfirm.com, or by
email at brian@schallfirm.com.
The class, in this case, has not yet been certified, and until
certification occurs, you are not represented by an attorney. If
you choose to take no action, you can remain an absent class
member.
According to the Complaint, the Company made false and misleading
statements to the market. PayPal failed to maintain appropriate
disclosure controls and procedures. The Company's PayPal Credit
business was non-compliant with applicable laws and regulations.
The Company's interchange rate practices regarding its debit cards
were also non-compliant with applicable laws and regulations. The
Company's revenues from its PayPal Credit and debit card businesses
were unsustainable. Based on these facts, the Company's public
statements were false and materially misleading throughout the
class period. When the market learned the truth about PayPal,
investors suffered damages.
Join the case to recover your losses.
The Schall Law Firm represents investors around the world and
specializes in securities class action lawsuits and shareholder
rights litigation.
This press release may be considered Attorney Advertising in some
jurisdictions under the applicable law and rules of ethics.
CONTACT:
The Schall Law Firm
Brian Schall, Esq.,
www.schallfirm.com
Office: 310-301-3335
info@schallfirm.com [GN]
PEDIATRIC HOME: Berridge Loses Bid to Certify Class
---------------------------------------------------
In the class action lawsuit captioned as RAKYA BERRIDGE v.
PEDIATRIC HOME HEALTHCARE, LLC, THOMAS C. WHEAT, Case No.
5:20-cv-01025-XR (W.D. Tex.), the Hon. Judge Xavier Rodriguez
entered an order denying the Plaintiff's motion to certify class.
Because Plaintiff Berridge has failed to present sufficient
evidence that other potential opt-in plaintiffs seek to join this
lawsuit and that she is similarly situated to all home healthcare
workers employed by Defendant PHH, certification of the proposed
collective action is not appropriate, Judge Rodriguez says.
This case arises out of the alleged failure by Defendants Pediatric
Home Healthcare (PHH) and Thomas C. Wheat to pay their employees a
proper overtime rate under the Fair Labor Standards Act (FLSA).
The Defendant PHH is a home healthcare company that provides
at-home care for patients throughout Texas. ECF No. 40-1. Defendant
Wheat is the founder and Chief Executive Officer of PHH.
The Plaintiff Berridge is a former hourly-paid employee of PHH.
Berridge worked for PHH first as a Licensed Vocational Nurse, then
as a Registered Nurse. Berridge asserts that she typically worked
over forty hours each week, but Defendants did not properly
compensate her and other similarly situated employees for overtime
work.
A copy of the Court's order dated Sept. 8, 2021 is available from
PacerMonitor.com at https://bit.ly/3EcdyRj at no extra charge.[CC]
PEOPLE'S BANK: Claims in Yankelov Suit Referred to Magistrate Judge
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District Judge Deborah K. Chasanow of the U.S. District Court for
the District of Maryland refers to Magistrate Judge Jillyn Schulze
the claims in the lawsuit titled RICHARD L. YANKELOV, et al., on
behalf of himself and all others similarly situated v. PEOPLE'S
BANK AND TRUST CO., Case No. DKC 19-2042 (D. Md.).
The case arises under the Fair Labor Standards Act and was filed by
several named plaintiffs as a potential collective and class
action. It has not, however, been certified, conditionally or
otherwise.
The Defendant filed a notice of Plaintiff Williams Brooks' death on
Aug. 10, 2021. The notice reports that Mr. Brooks died on Oct. 3,
2019, prior to the filing of the operative Amended Complaint,
although after the filing of the initial complaint. Under the
circumstances, the question of whether the claim survived Mr.
Brooks' death must be addressed, if pursuant to Fed.R.Civ.P.
25(a)(1), a motion to substitute is filed.
However, if a motion to substitute is not made within 90 days after
service of a statement noting the death, the action by or against
the decedent must be dismissed regardless. To date, no return of
service and no motion to substitute have been filed.
The remaining parties filed a joint motion for approval of their
settlement on Aug. 5, 2021. The Defendant filed a notice on May 11,
2021, consenting to have a United States Magistrate Judge conduct
any and all further proceedings in the case, including trial, and
enter final judgment. All Plaintiffs except William Brooks
consented to the same on Aug. 17, 2021.
At present, thus, pursuant to Fed.R.Civ.P. 42(b), the Court will
bifurcate the claims for separate consideration. The claims of
William Brooks are referred to Magistrate Judge Jillyn Schulze for
a Report and Recommendation as to whether the claims may proceed
and, if a motion to substitute is filed, whether it should be
granted. The claims of all other parties will be referred to
Magistrate Judge Schulze for all further proceedings.
A full-text copy of the Court's Memorandum Opinion dated Aug. 30,
2021, is available at https://tinyurl.com/e94j72pv from
Leagle.com.
PHILADELPHIA, PA: Court Grants Bids to Dismiss in Shelton Suit
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In the lawsuit titled RAYMOND SHELTON, Plaintiff v. CITY OF
PHILADELPHIA, et al., Defendants, Case No. 2:20-cv-04178-JMG (E.D.
Pa.), the U.S. District Court for the Eastern District Court of
Pennsylvania grants Defendants Blanche Carney and City of
Philadelphia's and Larry Krasner's motions to dismiss.
District Judge John M. Gallagher ruled that Defendant Larry
Krasner's motion to dismiss is granted. The claims against
Defendant Krasner in his individual and official capacity are
dismissed with prejudice.
Defendants Blanche Carney and City of Philadelphia's motion to
dismiss is granted. The claims against Defendant Carney in her
individual capacity are dismissed without prejudice. The claims
against Defendant Carney in her official capacity are dismissed
with prejudice. The request for injunctive relief associated with
the claim against the City of Philadelphia alleging
unconstitutional prison conditions caused by the covid-19 pandemic
is dismissed without prejudice to pursue through the pending
proposed class action Remick v. City of Phila., No. 20-1959 (E.D.
Pa.). The claims against the City of Philadelphia are dismissed
without prejudice.
All claims against Defendant Kier Bradford Grey in her official and
individual capacities are dismissed with prejudice.
The Sixth Amendment speedy trial claim is dismissed without
prejudice.
Judge Gallagher holds that Shelton may file an amended complaint no
later than 30 days from the date of the Order, if he chooses to do
so and in the event he can allege additional facts to reassert the
claims dismissed without prejudice.
The Clerk of Court is directed to send Shelton a blank copy of the
Court's current standard form to be used by a self-represented
litigant filing a civil action bearing the above-captioned civil
action number. Shelton may use this form to file his amended
complaint if he chooses to do so.
If Shelton does not wish to amend his Complaint and instead intends
to stand on his Complaint as originally pled, he may file a notice
with the Court within 30 days of the date of the Order stating that
intent, at which time the Court will issue a final order dismissing
the case.
If Shelton fails to file any response to the Order, the Court will
conclude that Shelton intends to stand on his Complaint and will
issue a final order dismissing this case.
A full-text copy of the Court's Order dated Aug. 30, 2021, is
available at https://tinyurl.com/29udc9n4 from Leagle.com.
PORCH GROUP: Tentative Deal Reached in Suit vs. HireAHelper
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Porch 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 a tentative deal was
reached in the putative class action suit against HireAHelper(TM),
pending execution of the long form settlement agreement and
approval by the court.
A former employee of HireAHelper(TM) filed a complaint in San Diego
County Superior Court in November 2020 asserting putative class
action claims for failure to pay overtime, failure to pay
compensation at the time of separation and unfair business
practices in violation of California law. HireAHelper(TM) was
served with the complaint in December 2020 and on January 28, 2021
Defendants removed the case to the United States District Court for
the Southern District of California.
The plaintiff seeks to represent all current and former non-exempt
employees of HireAHelper(TM), Legacy Porch and Porch's other
affiliated companies in the State of California during the relevant
time period. Plaintiffs seek damages for unpaid wages, liquidated
damages, penalties, attorney's fees and costs.
Porch said, "While this action is still at an early stage in the
litigation process, we have recorded an estimated accrual for a
contingent loss based on information currently known. The parties
recently attended a mediation in an effort to resolve the matter.
"
The mediation was successful and a tentative deal was reached
pending execution of the long form settlement agreement and
approval by the court.
Porch Group, Inc is a vertical software platform for the home,
providing software and services to approximately 11,000 home
services companies, such as home inspectors, moving companies,
utility companies, home insurance, warranty companies, and others.
The company is based in Seattle, Washington.
PORTFOLIO RECOVERY: New Jersey Court Refuses to Remand North Suit
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The U.S. District Court for the District of New Jersey denied the
Plaintiff's second motion to remand to the Superior Court of New
Jersey, Law Division, Essex County, the lawsuit titled TODD M.
NORTH, individually and on behalf of all others similarly situated,
Plaintiff v. PORTFOLIO RECOVERY ASSOCIATES, LLC; and JOHN DOES 1 to
10, Defendants, Case No. 2:20-cv-20190 (BRM) (JSA) (D.N.J.).
The Court previously summarized the facts underlying the dispute in
a May 6, 2020 Opinion granting the Plaintiff's first motion to
remand. The Court, therefore, includes an abbreviated statement of
the factual and procedural history to the extent such background is
relevant to the instant motion.
The case arises from the Defendants' attempts to collect a debt
owed by the Plaintiff. On Aug. 6, 2019, the Plaintiff filed a
putative class-action Complaint in the Superior Court of New
Jersey, Law Division, Essex County, asserting three claims against
the Defendants for violations of the New Jersey Consumer Fraud Act
("CFA"), the New Jersey Consumer Finance Licensing Act, and for
unjust enrichment.
The Plaintiff defines the class and subclass as:
* Class:
All natural persons with addresses in the State of New
Jersey who are listed as the borrower or purchaser in an
account assigned to Portfolio Recovery Associates, LLC, or
any of its sister or parent entities, at any time prior to
the date the respective entity obtained a license to engage
in business as a sales finance company or a consumer lender
pursuant to the CFLA, at N.J.S.A. 17:11C-3.
* Subclass:
All members of the Class who paid any money or from whom
Portfolio Recovery Associates, LLC, or any of its sister or
parent entities, directly or indirectly through its agents,
collected any money on the assigned account.
On Sept. 13, 2019, the Defendants first removed the action to
federal court on grounds of diversity jurisdiction pursuant to 28
U.S.C. Section 1332 (2:19-cv-17972-BRM-JAD). On Oct. 2, 2019, the
Plaintiff moved to remand the action to state court. On May 6,
2020, the Court granted the Plaintiff's motion to remand, citing
the amount in controversy requirement had not been satisfied.
On Dec. 22, 2020, the Defendants, for the second time, removed this
action to federal court, now alleging this Court has jurisdiction
pursuant to the Class Action Fairness Act of 2005 ("CAFA"), 28
U.S.C. Section 1332(d)(11) and arguing, inter alia, (1) CAFA's
jurisdictional requirements have been satisfied; and (2) removal is
timely.
On Jan. 21, 2021, the Plaintiff filed a Motion to Remand arguing,
inter alia, (1) the Defendants' Notice of Removal is untimely as it
was filed more than thirty days after it was aware the Court had
CAFA jurisdiction; and (2) this Court lacks jurisdiction over this
matter pursuant to the Rooker-Feldman doctrine. On Feb. 16, 2021,
the Defendants filed an opposition to the Motion to Remand. On Feb.
22, 2021, the Plaintiff filed a reply in support of the Motion to
Remand. On Feb. 26, 2021, the Defendants filed a Motion for Leave
to File a Sur-Reply in Opposition to the Motion to Remand, which,
on March 30, 2021, the Court granted.
Decision
District Judge Brian R. Martinotti notes that in seeking to remand,
the Plaintiff does not contest the Complaint meets the CAFA's
jurisdictional requirements; rather, the Plaintiff challenges the
Defendants' removal on timeliness grounds. The Plaintiff submits
the Defendants' tardy removal--15 months after receipt of the
Plaintiff's Complaint--plainly exceeded the 30-day requirement of
28 U.S.C. Sections 1446(b)(1) and (b)(3).
The Defendants, by contrast, take the position that the Plaintiff's
Complaint failed to sufficiently alert them to federal CAFA
jurisdiction. The Defendants claim they only learned this action
satisfied the CAFA requirements through their own independent
investigation into the Plaintiff's allegations, and submit they
promptly removed this action upon receipt of independently
uncovered jurisdictional facts.
A review of the Plaintiff's class action Complaint reveals that it
fails to describe a basis for federal jurisdiction, Judge
Martinotti finds. Indeed, the Court already determined the
Defendants had not met its burden of showing the amount in
controversy to be greater than $75,000, as "required" by Section
1332 and for that reason remanded the case to state court.
Judge Martinotti holds that the Plaintiff's Complaint fails to
provide the Defendants with facts demonstrating federal
jurisdiction under CAFA. Therefore, the Court concludes that the
30-day removal clocks of 28 U.S.C. Section 1446(b)(1) and (3) have
not been triggered by the Complaint.
Therefore, for these reasons, the Court finds the Defendants'
removal timely.
The Court briefly turns to the Plaintiff's contention that this
Court lacks jurisdiction over this matter pursuant to the
Rooker-Feldman doctrine so that a remand is warranted. According to
the Plaintiff, his "Complaint in the subject action clearly seeks
relief from state-court judgments, thus barring federal courts'
jurisdiction and review of those judgments."
Judge Martinotti holds that the Rooker-Feldman doctrine does not
apply here.
Rooker-Feldman seeks to avoid the lower federal courts from
conducting appellate review of state court judgments. But here, the
Court is unable to ascertain injuries caused by state court
judgments, Judge Martinotti notes. Indeed, for the injury prong to
apply, the Complaint must actually complain of injury produced by a
state-court judgment and not simply ratified, acquiesced in, or
left unpunished by it.
The Plaintiff identifies no specific state court judgment, Judge
Martinotti finds. In fact, the Plaintiff concedes he is not a state
court loser (no judgment was entered against him). As such, the
Court finds Rooker-Feldman inapplicable.
Conclusion
For the reasons set forth, the Court finds the Defendants' removal
timely. The Plaintiff's Motion to Remand the action to Superior
Court of New Jersey, Essex County, is denied. An appropriate order
follows.
A full-text copy of the Court's Opinion dated Aug. 30, 2021, is
available at https://tinyurl.com/4nxfpxz4 from Leagle.com.
PROCTER & GAMBLE: Court Dismisses McGinity Suit With Leave to Amend
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In the case, SEAN McGINITY, Plaintiff v. THE PROCTER & GAMBLE
COMPANY, Defendant, Case No. 4:20-cv-08164-YGR (N.D. Cal.), Judge
Yvonne Gonzalez Rogers of the U.S. District Court for the Northern
District of California grants P&G's motion to dismiss.
Background
Plaintiff McGinity bring the class action complaint against
Defendant Procter P&G alleging that P&G fraudulently represented
that the ingredients in its "PANTENE PRO-V NATUREFUSION" shampoos
and conditioners were from nature or otherwise natural. The
Plaintiff brings three causes of action: (1) violation of the
California Consumer Legal Remedies Act ("CLRA"), California Civil
Code Section 1761(d); (2) violation of the California False
Advertising Law ("FAL"), California Business and Professions Code
Section 17500, et seq.; and (3) violation of the California Unfair
Competition Law ("UCL"), California Business and Professions Code
Section 17200, et seq.
On June 19, 2019, the Plaintiff purchased P&G's products at a
Safeway grocery store in Santa Rosa, California. P&G markets,
advertises, and sells its present formulations of its products in
packaging which includes the label "NATURE FUSION" with an
accompanying image of an avocado on a green leaf. The Plaintiff
alleges that P&G representations on its packaging represents that
the products are natural, meaning that they are absent of any
synthetic and non-natural ingredients.
The Plaintiff purchased the products, for which he paid a premium,
because he wanted to buy personal care products that were natural.
Had the Plaintiff known at the time that the products were not
natural but were instead made with synthetic ingredients, he would
not have purchased the products. He now seeks to enjoin P&G's false
and misleading practices and to recover damages and restitution on
behalf of the class under applicable state laws.
Analysis
The reasonable consumer test governs deception-based claims under
the UCL, FAL, and CLRA, which looks at whether members of the
public are likely to be deceived by the conduct. This requires more
than a mere possibility that a defendant's label on its products
"might conceivably be understood by some few consumers viewing it
in an unreasonable manner." Instead, the reasonable consumer test
requires "that a significant portion of the general consuming
public or of targeted consumers, acting reasonably in the
circumstances, could be misled." Consideration of whether a
complaint sufficiently alleges that a reasonable consumer would be
deceived by the Defendant's representation is appropriate at the
motion to dismiss stage.
The Plaintiff's complaint alleges that P&G's use of the word
"Nature" and the accompanying imagery of an avocado, a vitamin, and
a leaf deceives consumers into believing that the products are from
nature or otherwise natural. He contends that a reasonable consumer
would not deem the products natural if they knew that they
contained synthetic or non-natural ingredients. The crux of the
Plaintiff's allegations is that P&G's labeling is deceptive because
it causes reasonable consumers to believe that P&G's products do
not contain synthetic or non-natural ingredients.
Judge Rogers finds that thbe Plaintiff has not sufficiently alleged
how a reasonable consumer would be deceived into believing that the
products did not contain any synthetic ingredients given the
express inclusion of such ingredients on the products packaging.
Accordingly, she finds that the Plaintiff has failed to
sufficiently state a claim under the CLRA, FAL, and the UCL for
deceptive and/or misleading practices.
Moreover, Judge Rogers holds that P&G's lack of use of the word
"Natural" in its labeling and packaging is significant. She says,
the Plaintiff relies on a handful of cases finding that other
defendants' use of the word "Natural" in labeling actionable under
various consumer protection statutes. In citing those cases, the
Plaintiff asks the Court to consider the Plaintiff's use of the
word "Nature" as synonymous with the word "Natural." The facts of
those cases are different and therefore do not persuade the Court
that an extension in this case is appropriate. In the case, the
Plaintiff has not alleged, nor does the Judge thinks the Plaintiff
could, that shampoos and conditioners occur in nature, and are
therefore a byproduct of natural conditions. Thus, the Judge finds
that the Plaintiff's argument does not persuade.
Conclusion
For the foregoing reasons, and in an abundance of caution, Judge
Rogers grants P&G's motion to dismiss with leave to amend. The
Plaintiff will file an amended complaint within 21 days from the
date of the Order. P&G will respond within 21 days from the
Plaintiff's filing. To the extent P&G files a motion to dismiss, it
will not assert any grounds which could have been asserted in the
instant motion. The Order terminates Docket Number 19.
A full-text copy of the Court's Aug. 31, 2021 Order is available at
https://tinyurl.com/2humedfd from Leagle.com.
QUEENSLAND: Wins Appeal in 2011 Floods Class Action Lawsuit
-----------------------------------------------------------
Talissa Siganto, writing for ABC News, reports that state-owned dam
operator Seqwater has won an appeal against a landmark ruling on
the 2011 Queensland floods.
In 2019, the Supreme Court in New South Wales found the Queensland
government, Sunwater and Seqwater, had acted negligently and had
contributed to the disaster.
It was ruled engineers had failed to follow their own flood
mitigation manual, leading them to release large volumes of water
at the height of the flood, damaging more properties.
A judge ordered more than 6,500 victims whose homes or businesses
were damaged were entitled to almost $900 million in compensation.
Two of the defendants agreed to pay their share of the settlement
but Seqwater -- which was found liable for 50 per cent -- appealed
against the decision on a number of grounds.
During a hearing in May, Seqwater argued engineers had acted
appropriately and the decisions about water releases were
suitable.
In a published judgment on Sept. 7, three NSW Court of Appeal
judges ruled the engineers "acted by way of consensus" and
"ultimately" followed the strategy determined by the senior flood
operations engineer and were not in breach of the Civil Liability
Act.
"Failure by Seqwater's flood engineers to depart from that strategy
was not proven to be in breach," the judges found.
"Even if their conduct departed from the manual, that did not of
itself entail a breach of that standard."
Seqwater CEO Neil Brennan said the 2011 flood event was "one of the
most extreme weather events ever experienced in our region".
He said Seqwater was acutely aware of the impact on the community.
"Our focus continues to be providing safe and secure water supply
for south-east Queensland," he said.
'Kick in the guts'
Ipswich councillor and Goodna flood victim Paul Tully slammed the
unexpected decision as a "kick in the guts" to many
still-struggling flood victims.
"This decision defies commonsense and logic given that SunWater and
the state government have already accepted they were jointly liable
for the flood," Mr Tully said.
"We now have the bizarre situation where the state government and
SunWater have agreed to pay $440 million as their assessed 50 per
cent liability, while Seqwater has squirmed out of its
responsibility on a legal technicality."
Mr Tully accused Seqwater of legal delaying tactics over 10 years
"lacking one iota of justice, common decency or fair play".
"In the past decade, many flood victims have passed away, marriages
have failed and people have suffered mental breakdowns as a result
of the legal delays."
Class action law firm Maurice Blackburn, which represented
claimants, said it would carefully review the "disappointing"
judgement, before deciding whether to launch a High Court appeal.
It said the settlement reached with the Queensland Government and
Sunwater remained in place.
'Not proven to be in breach'
The judgment also rejected the initial judge's determination that
losses had been caused by the "cumulative effect" of several
breaches by the flood engineers.
"That approach was artificial . . . and assumed that each flood
engineer could and should exercise independent judgment," the
judges found.
"The flood engineers acted in a collaborative manner . . . all were
liable for each breach.
"The fact that a particular engineer was on duty at a particular
time was not a critical factor."
'Rainfall predictions being uncertain'
In a judgment summary, the Court of Appeal rejected the original
legal challenge that engineers were negligent for not taking into
consideration forecast heavy rain when deciding to release water.
"Contrary to the finding reached by the trial judge, the Court of
Appeal held that the manual did not provide for continued releases
once the dam had fallen to full supply level," the summary said.
The judgment summary also said the Court of Appeal held there had
been "no negligence" in ceasing to release water prior to the peak
of the floods.
"As the manual did not allow reopening of the radial gates of
Wivenhoe Dam until the water level reached 67.25m, which did not
happen until 6 January," the summary said.
The Court of Appeal also rejected the major legal challenge that
"engineers had consistently underestimated the likelihood
inundation" between the January 6 and January 10 when torrential
rain fell and large releases were made.
"The court accepted that, at least with hindsight, it was clear
that the engineers underestimated the volume of rain which was to
fall in the dam catchments and remained for too long in strategies
designed to avoid submerging the downstream bridges.
"However, rainfall predictions being uncertain as to volumes,
location and timing, the engineers did not breach the applicable
standard of care." [GN]
RAPID FINANCIAL: Loses Bid to Arbitrate Claims in Watkins Suit
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The U.S. District Court for the District of Nevada denied the
Defendants' motion to compel arbitration of the Plaintiff's claims
in the lawsuit styled CHRISTOPHER WATKINS, Plaintiff v. RAPID
FINANCIAL SOLUTIONS, INC, d/b/a ACCESS FREEDOM CARDS, et al.,
Defendants, Case No. 3:20-cv-00509-MMD-WGC (D. Nev.).
The case is a class action lawsuit brought by Plaintiff Christopher
Watkins, a former inmate under the custody of the Nevada Department
of Corrections ("NDOC"), who received the return of his money upon
his release in the form of a prepaid debit card and funds
respectively issued and managed by Defendants Rapid Financial
Solutions, Inc. and Axiom Bank N.A. The Plaintiff alleges that the
forced use of these cards on inmates--commonly referred to as
"prison release cards"--is in violation of both federal and state
laws.
Background
Plaintiff Christopher Watkins was an inmate in the custody of the
NDOC and housed at the Stewart Conservation Camp ("SCC"). While in
custody, Plaintiff was voluntarily employed as a firefighter and
earned $1.00 per hour; $0.10 of his hourly earnings were
transferred to his prison trust account. The Plaintiff's family
members additionally deposited money into the account.
Ten days prior to his release, the Plaintiff met with his case
worker who instructed him to sign documentation that would close
out his trust account. The case worker notified the Plaintiff that
an approximate $400 in his account would be loaded onto an Access
Freedom Card ("release card" or "card"). The Plaintiff declares
that he was "not told what it was that he was signing and was not
given an option not to sign" and "not given an option to receive
his money by any other means." He was not given a brochure or any
documentation regarding the Access Freedom Card until after his
release. Moreover, the case worker informed him that the release
card was activated and would be given to him on the date of his
release.
On April 6, 2020, the NDOC credited $431.20 onto the release card.
The Plaintiff activated the release card on April 7, 2020. Shortly
thereafter on April 10, 2020, the Plaintiff was charged a weekly
account maintenance fee of $1.50.
On April 13, 2020, the Plaintiff was released from NDOC custody and
was dropped off at a 7-Eleven convenient store down the street from
the prison facility. He received an Access Freedom Card issued by
Rapid with his pre-loaded account funds, which were maintained by
Axiom. Rapid affixes its card to a tri-folded Cardholder Agreement.
The Plaintiff found that the card was not activated, and had to
call the number in the card.
Discussion
The Plaintiff opposes arbitration and, in support of his position,
explicitly cites Reichert v. Keefe Commissary Network, LLC, Case
No. C17-5848RBL, 2018 WL 2018452 (W.D. Wash. May 1, 2018), a
similar dispute in which Rapid is a defendant. Specifically, the
Plaintiff argues that the Motion should be denied based on
offensive nonmutual issue preclusion, and that there was no mutual
assent or consideration with respect to the Cardholder Agreement.
Because the issue of mutual assent is dispositive, the Court will
only address the parties' arguments in relation to that issue and
will not reach the consideration argument, Chief District Judge
Miranda M. Du states.
To enforce an arbitration agreement, the Court must determine (1)
whether the parties agreed to arbitrate their disputes, and (2) if
the claims in dispute are within the scope of the arbitration
agreement.
In their Motion, the Defendants assert that the arbitration clause
of the Cardholder Agreement is enforceable because the Plaintiff
had activated and voluntarily used the release card. The Defendants
further assert that the Plaintiff had the option of rejecting the
release card by calling Rapid and requesting a check for the full
balance on the card.
The Plaintiff counters that while inmates are in custody, they are
unable to exercise any free will to consent or assent to a
contract, such as the Cardholder Agreement.
The Court is persuaded by the evidence that there was no mutual
assent to the Agreement based on activation, nevertheless an
adhesion contract was formed but the contract is unconscionable
and, therefore, unenforceable. The Court, therefore, agrees with
the Plaintiff but addresses the Defendants' arguments in turn.
The Defendants argue that the Plaintiff's telephone call to Rapid
to activate the release card constitutes acceptance of the
Cardholder Agreement. The Court disagrees.
Judge Du opines that there is no evidence to support that the
Plaintiff was in possession of the Cardholder Agreement when the
card was activated on April 7, 2020. Thus, the Defendants'
assertion that the Agreement and release card provided detailed
information about the contract to the Plaintiff does not warrant
consideration as that information was not in his possession when he
activated the card on April 7, 2020.
Despite the Defendants' assertion that there was a "meeting of the
minds" because the Defendants proffering a written contract
accepted via activation, the Court finds differently because the
Plaintiff was unaware of the essential terms nor in possession of
the Agreement to inform him otherwise at the time of activation. As
such, there was no meeting of the minds and no mutual assent, Judge
Du finds.
While the Court agrees with the Defendants that the Plaintiff
accepted and used the card, the resulting adhesion contract is
unenforceable as it is both procedurally and substantively
unconscionable, Judge Du holds. She adds that the Agreement is an
unconscionable adhesion contract. Accordingly, the Court declines
to enforce it.
The Defendants also argue that the Plaintiff's failure to cancel
the release card and request a check is an objective manifestation
of assent. Because the Court finds that the Plaintiff had entered
an unconscionable adhesion contract upon receiving the card, the
Defendants' argument is moot. Upon his release, had the Plaintiff
used the phone to call Rapid to cancel the card and request a
check, the Plaintiff would have already "accepted" and been bound
by the terms of the Cardholder Agreement.
Accordingly, whether the Plaintiff assented to the Agreement by
failing to reject the release card is immaterial, Judge Du points
out.
Conclusion
The Court notes that the parties made several arguments and cited
to several cases not discussed here. The Court has reviewed these
arguments and cases and determines that they do not warrant
discussion as they do not affect the outcome of the Motion before
the Court.
It is, therefore, ordered that the Defendants' motion to compel
arbitration is denied.
A full-text copy of the Court's Order dated Aug. 30, 2021, is
available at https://tinyurl.com/yz47kzb8 from Leagle.com.
REKOR SYSTEMS: Continues to Defend Miller Putative Class Suit
--------------------------------------------------------------
Rekor Systems, 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 putative shareholder class action lawsuit captioned Miller
v. Rekor Systems, Inc. et al.
In June 2021, a putative shareholder class action lawsuit
(captioned Miller v. Rekor Systems, Inc. et al.) was filed in in
the United States District Court for the District of Maryland,
naming as defendants Rekor Systems, Inc. and certain of its
officers.
It alleges violations of Sections 10(b) and 20(a) and Rule 10b-5 of
the Securities Exchange Act of 1934 related to Rekor's automatic
license plate recognition technology and uninsured vehicle
enforcement diversion related business and seeks damages on behalf
of shareowners who acquired Rekor stock between April 12, 2019 and
May 25, 2021.
Rekor said, "We have received service and believe that this lawsuit
is without merit and plan to vigorously defend against it."
Rekor Systems, Inc. is a leader in the emerging market to provide
support services for intelligent infrastructure and intelligent
roadways, land have developed a suite of products and services
using AI and other recent technological advances to provide
innovative solutions. The company is based in Columbia, Maryland.
RENT RECOVERY: Transmits Consumers' Data to Third Party, Olave Says
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MILTON OLAVE, individually and on behalf of all others similarly
situated, Plaintiff v. RENT RECOVERY SOLUTIONS, LLC, Defendant,
Case No. CACE-21-017224 (Fla. Cir. Ct., 17th Jud. Cir., Broward
Cty., September 13, 2021) is a class action against the Defendant
for violations of the Florida Consumer Collection Practices Act and
the Fair Debt Collection Practices Act.
The case arises from the Defendant's alleged unlawful practice of
transmitting the personal information of the Plaintiff and
similarly situated consumers to a third-party in connection with
the collection of consumer debts.
Rent Recovery Solutions, LLC is a debt collector doing business in
Florida. [BN]
The Plaintiff is represented by:
Jibrael S. Hindi, Esq.
Thomas J. Patti, Esq.
THE LAW OFFICES OF JIBRAEL S. HINDI
110 SE 6th Street, Suite 1744
Fort Lauderdale, FL 33301
Telephone: (954) 907-1136
E-mail: jibrael@jibraellaw.com
tom@jibraellaw.com
RIVER PALMS: Nursing Home Residents' Families File Class Action
---------------------------------------------------------------
WDSU News reports that a class-action lawsuit has been filed on
behalf of families whose loved ones were evacuated to a warehouse
in Tangipahoa Parish and left in deplorable conditions.
The lawsuit was filed on Sept. 6 against Bob Dean, the owner of
seven facilities at the center of an investigation.
The lawsuit was filed in Jefferson Parish by Nancy Anderson, on
behalf of her mother-in-law, Mrs. Leona Anderson; Joy Manguno, on
behalf of her husband, Joseph T. Manguno; Jayme Songy, as curator
for Malvina Songy; and Janice Verdin, as a responsible party for
Catherine Roussell, according to the lawsuit.
The seven nursing homes evacuated more than 800 residents to
Waterbury Cos. warehouse in Tangipahoa Parish ahead of Hurricane
Ida, and had their licenses revoked, the Louisiana Department of
Health announced on Sept. 7. The facilities' Medicaid provider
agreements have also been terminated, the agency said.
The seven nursing homes are:
-- River Palms Nursing and Rehab, Orleans Parish
-- South Lafourche Nursing and Rehab, Lafourche Parish
-- Maison Orleans Healthcare Center, Orleans Parish
-- Park Place Healthcare Nursing Home, Jefferson Parish
-- West Jefferson Health Care Center, Jefferson Parish
-- Maison De Ville Nursing Home, Terrebonne Parish
-- Maison Deville Nursing Home of Harvey, Jefferson Parish
The announcement comes after seven nursing homes residents taken to
the Waterbury Cos. warehouse died. State health officials were
turned away when they went to inspect the facility the day after
the storm, having received reports that conditions inside had
worsened.
The lawsuit alleges that Dean denied the defendants their dignity,
accusing him of abuse.
The lawsuit seeks damages and a jury trial. [GN]
ROBERT D. GOLDFARB: Bid for Settlement Approval in Ferguson Denied
------------------------------------------------------------------
District Judge Andrew L. Carter, Jr., of the U.S. District Court
for the Southern District of New York denies the motion for
preliminary approval of the class action settlement in the lawsuit
entitled MICHAEL L. FERGUSON, ET AL., Plaintiffs v. ROBERT D.
GOLDFARB, Defendant, Case No. 20-cv-7092 (ALC) (S.D.N.Y.).
Pursuant to the memorandum and order in related Case No.
17-cv-6685, the motion for preliminary approval of the class action
settlement is denied.
A full-text copy of the Court's Order dated Aug. 30, 2021, is
available at https://tinyurl.com/69kkuze2 from Leagle.com.
ROBINHOOD MARKETS: Text Messages Related Suits Underway
-------------------------------------------------------
Robinhood Markets, 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 company and its
subsidiary Robinhood Financial LLC (RHF) continues to defend
putative class suits related to the transmission of commercial
electronic text messages to Washington State in violation of
Washington State law.
On October 29, 2019, a putative class action was filed by Isaac
Gordon against Robinhood Financial LLC (RHF) and the company (RHM)
in the Superior Court for the State of Washington, County of
Spokane.
The complaint alleged that RHF and RHM initiated or assisted in the
transmission of commercial electronic text messages to Washington
State residents without their consent in violation of Washington
State law. The action was removed to the Eastern District of
Washington. On January 25, 2021, the court granted the plaintiff's
motion for class certification.
On June 25, 2021, RHF filed a motion to decertify the class and
disqualify class counsel. On July 27, 2021, the court granted RHF's
motion to decertify the class, denied the motion to disqualify
class counsel, and remanded the case to state court.
On August 9, 2021, a new, substantially similar putative class
action was filed by Cooper Moore against RHF in the U.S. District
Court for the Northern District of California.
Robinhood Markets, Inc. is an American financial services company
headquartered in Menlo Park, California, known for pioneering
commission-free trades of stocks and exchange-traded funds via a
mobile app introduced in March 2015.
ROMEO POWER: California Wage & Hour Class Suit Still Stayed
-----------------------------------------------------------
Romeo Power, 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 wage-and-hour
putative class action suit filed in Los Angeles Superior Court,
remains stayed.
In October 2020, a wage-and-hour class action was filed in Los
Angeles Superior Court on behalf of all current and former
non-exempt employees in California from October 2016 to present.
The allegations include meal and rest period violations and various
related claims.
The case is currently stayed pending mediation, which was continued
to October 2021.
Romeo Power said, "We intend to defend ourselves against these
claims and the possible range of loss, if any, cannot currently be
estimated."
Romeo Power, Inc. are the creators of the world's most energy-dense
battery packs. Top engineers and designers from SpaceX, Tesla,
Samsung, Apple, and Amazon, started Romeo Power Technology in 2015
with the belief that safe and reliable energy is crucial to the
advancement of human health and economic development. The company
is based in Vernon, California.
ROMEO POWER: Consolidated Nichols-Toner Suit Underway
-----------------------------------------------------
Romeo Power, 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 company continues to
defend a consolidated class action suit initiated by Travis Nichols
and Victor J. Toner.
On April 16, 2021, plaintiff Travis Nichols filed a class action
complaint against Romeo, in the U.S. District Court for the
Southern District of New York. The Nichols Complaint alleges that
defendants made false and misleading statements regarding the
supply of battery cells, which are components of Romeo's products,
and the Company's ability to meet customer demand and achieve its
revenue forecast for 2021.
On May 6, 2021, plaintiff Victor J. Toner filed a second class
action complaint against Romeo, in the U.S. District Court for the
Southern District of New York. The allegations in the Toner
Complaint are substantially similar to the allegations in the
Nichols Complaint.
The relief sought by both plaintiffs includes money damages,
reimbursement of expenses, and equitable relief.
On July 15, 2021, the Court consolidated the two pending cases and
appointed a lead plaintiff. The lead plaintiff must file a
consolidated amended complaint on or before September 15, 2021.
Romeo Power SAID, "We have not yet responded to the lawsuit, but we
intend to defend ourselves vigorously against these claims. This
litigation is at preliminary stages and the outcome of any complex
legal proceeding is inherently unpredictable and subject to
significant uncertainties. Based upon information presently known
to management, we are not currently able to estimate the outcome of
this proceeding or a possible range of loss, if any."
Romeo Power, Inc. are creators of the world's most energy-dense
battery packs. Top engineers and designers from SpaceX, Tesla,
Samsung, Apple, and Amazon, started Romeo Power Technology in 2015
with the belief that safe and reliable energy is crucial to the
advancement of human health and economic development. The company
is based in Vernon, California.
SCWORX CORP: Mediation in Suit Over COVID-19 Rapid Test Kit Ongoing
-------------------------------------------------------------------
SCWorx Corp. 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 a non-binding mediation is ongoing
in the consolidated securities class action suit related to the
company's April 13, 2020 press release with respect to the sale of
COVID-19 rapid test kits.
On April 29, 2020, a securities class action case was filed in the
United States District Court for the Southern District of New York
against the company and its former CEO. The action is captioned
Daniel Yannes, individually and on behalf of all others similarly
situated, Plaintiff vs. SCWorx Corp. and Marc S. Schessel,
Defendants.
On May 27, 2020, a second securities class was filed in the United
States District Court for the Southern District of New York against
the company and its former CEO. The action is captioned Caitlin
Leeburn, individually and on behalf of all others similarly
situated, Plaintiff v. SCWorx Corp. and Marc S. Schessel,
Defendants.
On June 23, 2020, a third securities class was filed in the United
States District Court for the Southern District of New York against
the company and its former CEO. The action is captioned Jonathan
Charles Leonard, individually and on behalf of all others similarly
situated, Plaintiff v. SCWorx Corp. and Marc S. Schessel,
Defendants.
All three lawsuits allege that the company and its former CEO
misled investors in connection with the company's April 13, 2020
press release with respect to the sale of COVID-19 rapid test kits.
The plaintiffs in these actions are seeking unspecified monetary
damages. These three class actions were consolidated on September
18, 2020 and Daniel Yannes was designated lead plaintiff. A
consolidated Amended Complaint ("CAC") was filed on October 19,
2020.
The Defendants filed a motion to dismiss the CAC on November 18,
2020, and the briefing on that motion was complete on January 8,
2021.
By Memorandum Opinion and Order dated June 21, 2021, Judge Koeltl
denied Defendants' motion to dismiss. Defendants' entered into a
scheduling order and filed their respective Answers to the CAC on
July 27, 2021.
The parties have agreed to non-binding mediation which is scheduled
to occur on August 23, 2021.
SCWorx Corp. is a provider of data content and services related to
the repair, normalization and interoperability of information for
healthcare providers, as well as big data analytics for the
healthcare industry. The Company is based in New York, New York.
SMALLCAKES STEELE: Hathaway Wins Collective Action Certification
----------------------------------------------------------------
In the class action lawsuit captioned as ANGELA HATHAWAY v.
SMALLCAKES STEELE CREEK, LLC; IAN BOWLEG; SMALLCAKES BALLANTYNE,
LLC; and AYANNA BOWLEG, Case No. 3:21-CV-00290-FDW-DSC (W.D.N.C.),
the Hon. Judge Frank D. Whitney entered an order granting
Plaintiff's motion for collective action certification on the
following terms:
-- The case shall proceed with respect to the Fair Labor
Standards Act (FLSA) claims as a collective action under
29 U.S.C. section 216(b);
-- For purposes of Plaintiff's FLSA claim, the collective is
defined as follows:
"All current and former non-exempt hourly tipped employees
who are or were employed by Smallcakes Steele Creek, LLC,
Smallcakes Ballantyne, LLC, Ian Bowleg and/or Ayanna
Bowleg beginning June 16, 2018 to the present;"
-- Pursuant to Fed. R. Civ. P. 23(g), the Plaintiff's counsel
shall serve as counsel for the collective; and
-- The Defendant shall provide Named Plaintiff's counsel the
last known names, addresses, dates of employment, and
email addresses of potential opt-in plaintiffs in a
computer readable format of all putative collective
members who worked for Defendant at any time from June 16,
2018, to present."
When Plaintiff confronted the Defendants Ian and Ayanna Bowleg
about her concerns, the Defendants allegedly told Plaintiff that
she, and other hourly tipped employees, would be paid a
discretionary bonus in lieu of the credit card tips. At least one
employee is alleged to have not received a discretionary bonus. The
Plaintiff further alleges Defendants Ian and Ayanna Bowleg
threatened to -- and did -- retaliate against Plaintiff if
Plaintiff continued to "push the issue of tip withholding." Such
retaliatory actions allegedly included removing the tip jar from
the counter and cutting Plaintiff's hours from "20 hours per week
to five hours per week," the Court says.
A copy of the Court's order dated Sept. 7, 2021 is available from
PacerMonitor.com at https://bit.ly/3974FKq at no extra charge.[CC]
SOULBOUND STUDIOS: "Chronicles of Elyria" Class Action Can Proceed
------------------------------------------------------------------
Bree Royce, writing for Massively Overpowered, reports that we now
return you to the Chronicles of Elyria legal drama in progress.
When we last left the story, the lawsuit levied against developer
Soulbound Studios and Xsolla had been partially transferred from
California to Washington. Xsolla had been accused of refusing to
grant refunds for per its own terms of use, but the judge sent the
Xsolla side of the suit to non-class arbitration in California
under the terms of Xsolla's original TOS, while transferring the
Soulbound slice of the suit to the Western District of Washington.
So onward we go. McCathern Law, which represents the plaintiffs
here, has explained to the group that the class action is
proceeding in Washington and that the California courts are indeed
compelling the Xsolla leg of the suit in arbitration as expected --
but that won't proceed until the Soulbound suit is done. The
attorneys say they want to "flood Xsolla with hundreds of demands
to arbitrate," but of course, none of this is free. Here's the
attorney comms as posted in the class action Discord:
"District Court in the central district of California ruled that
due to the choice of law clause in Soulbound's EULA contract the
class action may proceed but, will have to proceed in district
court in the western district of Washington. I already have made my
appearance in court there and we are moving forward against
Soulbound in the class action.
"District Court in the central district of California granted
Xsolla's motion to compel arbitration. This means that the named
Plaintiff, James Falls, claims will need to be arbitrated. However,
the Court ruled to stay (put on hold) Mr. Falls' arbitration until
the Soulbound class action is concluded. The court did not rule on
whether the entire class needs to be arbitrated.
"NEXT STEPS: I want to flood Xsolla with hundreds of demands to
arbitrate. As such, please check discord next week because no later
than Friday Sept. 10, 2021, I will post a fee agreement with my
firm that I hope each of you will consider signing. This will allow
my team to put as much pressure on Xsolla as we can while still
litigating the class action against Souldbound."
Readers will recall that in 2020, Soulbound Studios ran out of
cash, laid off the team, and ended development of Chronicles of
Elyria, only to pivot a month later and insist the game was still
in production with volunteer staff. Backers took it to court with a
class action lawsuit against both Soulbound and payment processor
Xsolla. The drama has only heated up in 2021, as Soulbound began
testing spinoff game Kingdoms of Elyria under an NDA perceived as
dodgy; Soulbound did amend that NDA but then locked down the Reddit
over alleged "death threats" and announced plans for crypto land
trades. [GN]
SPARTAN CONCRETE: Loctar Seeks to Certify Rule 23 Class
-------------------------------------------------------
In the class action lawsuit captioned as John St. Rose, Monrose
Loctar, and Derrick James, individually and on behalf of all others
similarly situated, v. Spartan Concrete Products, LLC, and Warren
Mosler, Case No. : 3:19-cv-00117-RAM-RM (D.V.I.), the Plaintiff
Monrose Loctar ask the Court to enter an order:
1. certifying a class pursuant to Rule 23(b)(3) of the
Federal Rules of Civil Procedure; and
2. appointing him as class Representative; and
3. appointing his counsel be named class counsel.
A copy of the Plaintiff's motion to certify class dated Sept. 9,
2021 is available from PacerMonitor.com at https://bit.ly/3EffWXG
at no extra charge.[CC]
The Plaintiffs are represented by:
C. Jacob Gower, Esq.
Korey A. Nelson, Esq.
C. Jacob Gower, Esq.
BURNS CHAREST LLP
365 Canal Street, Suite 1170
New Orleans, LA 70130
Telephone: (504) 799-2845
Facsimile: (504) 881-1765
E-mail: knelson@burnscharest.com
jgower@burnscharest.com
- and -
J. Russell B. Pate, Esq.
THE PATE LAW FIRM
P.O. Box 370
Christiansted, V.I. 00821-0370
Telephone: (340) 777-7283
Facsimile: (888) 889-1132
E-mail: pate@sunlawvi.com
SunLawVI@gmail.com
- and -
Warren T. Burns, Esq.
Daniel H. Charest, Esq.
BURNS CHAREST LLP
900 Jackson Street, Suite 500
Dallas, TX 75202
Telephone: (469) 904-4550
Facsimile: (469) 444-5002
E-mail: wburns@burnscharest.com
dcharest@burnscharest.com
The Counsel to defendant Heavy Materials, LLC & former-defendant
U.S. Concrete Inc., are:
Scot F. McChain, Esq.
Mark W. Eckard, Esq.
McCHAIN HAMM ECKARD, LLP
5030 Anchor Way, Suite 13
Christiansted, St. Croix, VI 00820
E-mail: scot@mcchainlaw.com
meckard@usvi.law
- and -
Yohana Manning, Esq.
MANNING LEGAL SERVICES PC
53A Company St., 2 nd Floor
Christiansted, VI 00820
E-mail; yohana05@gmail.com
- and -
Ronald W. Breaux, Esq.
Benjamin Goodman, Esq.
HAYNES BOONE
2323 Victory Ave., Ste. 700
Dallas, TX 75219
E-mail: ron.breaux@haynesboone.com
benjamin.goodman@haynesboone.com
The Counsel to defendant Spartan Concrete, LLC & former-defendant
Warren Mosler, are:
Christopher A. Kroblin, Esq.
Marjorie Whalen, Esq.
KELLERHALS FERBUSON KROBLIN PLLC
Royal Palms Professional Bldg.
9053 Estate Thomas, Suite 101
St. Thomas, VI 00802-3602
E-mail: ckroblin@kellfer.com
mwhalen@kellfer.com
SPECTRUM PHARMA: Robbins Geller Reminds of November 1 Deadline
--------------------------------------------------------------
Robbins Geller Rudman & Dowd LLP on Sept. 7 disclosed that
purchasers and acquirers of Spectrum Pharmaceuticals, Inc. (NASDAQ:
SPPI) securities between December 27, 2018 and August 5, 2021,
inclusive (the "Class Period") have until November 1, 2021 to seek
appointment as lead plaintiff in the Spectrum Pharmaceuticals class
action lawsuit. The Spectrum Pharmaceuticals class action lawsuit
charges Spectrum Pharmaceuticals and certain of its top executives
with violations of the Securities Exchange Act of 1934. The
Spectrum Pharmaceuticals class action lawsuit (Luo v. Spectrum
Pharmaceuticals, Inc., No. 2:21-cv-01612) was commenced on August
31, 2021 and is pending in the District of Nevada.
If you wish to serve as lead plaintiff of the Spectrum
Pharmaceuticals class action lawsuit, please provide your
information by clicking here. You can also contact attorney J.C.
Sanchez of Robbins Geller by calling 800/449-4900 or via e-mail at
jsanchez@rgrdlaw.com. Lead plaintiff motions for the Spectrum
Pharmaceutical class action lawsuit must be filed with the court no
later than November 1, 2021.
CASE ALLEGATIONS: Spectrum Pharmaceuticals is a biopharmaceutical
company whose products under development include, among others,
ROLONTIS (eflapegrastim), a novel long-acting granulocyte
colony-stimulating factor for chemotherapy-induced neutropenia. In
December 2018, Spectrum Pharmaceuticals submitted a Biologics
License Application ("BLA") to the U.S. Food and Drug
Administration ("FDA") for ROLONTIS as a treatment for
chemotherapy-induced neutropenia (the "ROLONTIS BLA").
The Spectrum Pharmaceuticals class action lawsuit alleges that,
throughout the Class Period, defendants made false and misleading
statements and failed to disclose that: (i) the ROLONTIS
manufacturing facility maintained deficient controls and/or
procedures; (ii) the foregoing deficiencies decreased the
likelihood that the FDA would approve the ROLONTIS BLA in its
current form; (iii) Spectrum Pharmaceuticals had therefore
materially overstated the ROLONTIS BLA's approval prospects; and
(iv) as a result, Spectrum Pharmaceuticals' public statements were
materially false and misleading at all relevant times.
On August 6, 2021, Spectrum Pharmaceuticals announced receipt of a
Complete Response Letter ("CRL") from the FDA regarding the
ROLONTIS BLA. The CRL cited deficiencies related to manufacturing
and indicated that a reinspection of Spectrum Pharmaceuticals'
manufacturing facility will be necessary. On this news, Spectrum
Pharmaceuticals' stock price fell more than 21%, damaging
investors.
THE LEAD PLAINTIFF PROCESS: The Private Securities Litigation
Reform Act of 1995 permits any investor who purchased Spectrum
Pharmaceuticals securities during the Class Period to seek
appointment as lead plaintiff in the Spectrum Pharmaceuticals class
action lawsuit. A lead plaintiff is generally the movant with the
greatest financial interest in the relief sought by the putative
class who is also typical and adequate of the putative class. A
lead plaintiff acts on behalf of all other class members in
directing the Spectrum Pharmaceuticals class action lawsuit. The
lead plaintiff can select a law firm of its choice to litigate the
Spectrum Pharmaceuticals class action lawsuit. An investor's
ability to share in any potential future recovery of the Spectrum
Pharmaceuticals class action lawsuit is not dependent upon serving
as lead plaintiff.
ABOUT ROBBINS GELLER RUDMAN & DOWD LLP: With 200 lawyers in 9
offices nationwide, Robbins Geller Rudman & Dowd LLP is the largest
U.S. law firm representing investors in securities class actions.
Robbins Geller attorneys have obtained many of the largest
shareholder recoveries in history, including the largest securities
class action recovery ever - $7.2 billion - in In re Enron Corp.
Sec. Litig. The 2020 ISS Securities Class Action Services Top 50
Report ranked Robbins Geller first for recovering $1.6 billion for
investors last year, more than double the amount recovered by any
other securities plaintiffs' firm. Please visit
http://www.rgrdlaw.comfor more information.
Attorney advertising.
Past results do not guarantee future outcomes.
Services may be performed by attorneys in any of our offices.
Contact:
Robbins Geller Rudman & Dowd LLP
655 W. Broadway, San Diego, CA 92101
J.C. Sanchez, 800-449-4900
jsanchez@rgrdlaw.com [GN]
STATE FARM: Judge Denies Policyholders' Class Certification Bid
---------------------------------------------------------------
Greg Land, writing for NU Property Casualty 360, reports that Judge
Clay Land of the U.S. District Court for the Middle District of
Georgia denied class action certification to more than 600,000
State Farm insurance policyholders over claims that the insurer had
undervalued replacement and repair costs for accident-damaged
vehicles for years.
Land wrote that a 20-year-old court decision aimed at providing a
formula for evaluating the value of a vehicle's lost value -- which
also allows for an insured to challenge such an estimate, if need
be -- seemed to settle the issue. [GN]
STEAK N SHAKE: Ohio Court Denies Bid to Transfer Harding Suit
-------------------------------------------------------------
The U.S. District Court for the Northern District of Ohio denies
the Defendant's motion to transfer the lawsuit captioned EMILY
HARDING, on behalf of herself and others similarly situated,
Plaintiff v. STEAK N. SHAKE, INC., Defendant, Case No.
1:21-cv-01212 (N.D. Ohio).
Plaintiff Emily Harding sues Defendant Steak N Shake, Inc., for
violating the Fair Labor Standards Act and the Ohio Minimum Fair
Wage Standards Act. Harding seeks to represent herself and others
similarly situated in a Fair Labor Standards Act collective action
and a class action.
Defendant Steak N Shake moves to transfer venue to the Southern
District of Indiana, arguing it would be a more convenient and
judicially efficient venue. Steak N Shake also moves to stay
proceedings pending resolution of its transfer motion. Plaintiff
Harding opposes.
District Judge James S. Gwin holds that Defendant Steak N Shake
fails to establish that the relevant private and public interests
strongly favor transferring venue to the Southern District of
Indiana.
Plaintiff Harding's collective and class actions can include only
Ohio employees. This Court would not have personal jurisdiction
over the Defendant, an Indiana corporation, for non-Ohio employees'
claims. The Plaintiff, seemingly acknowledging this point, has
moved to amend her complaint to limit the scope to Ohioans and
withdrawn the consent forms for all non-Ohio employees. Judge Gwin
finds that the Plaintiff's interest in selecting the forum does not
favor transfer.
Next, Steak N Shake argues the Southern District of Indiana is no
more inconvenient than the Northern District of Ohio and may be
more convenient for some potential plaintiffs. But the Defendant's
burden is not merely to show that transfer would not burden parties
and witnesses. Instead, the Defendant must establish that a
different venue would almost certainly be better, Judge Gwin
opines. He holds that the Defendant does not do so. Convenience for
the parties and witnesses does not favor transfer.
Finally, Steak N Shake argues transfer to the Southern District of
Indiana would avoid "piecemeal" litigation as non-Ohio employees
could join in a suit there, but not here. While that may be so, the
Court is not persuaded that facilitating a nationwide collective
action, without more, warrants transfer. At most, the interest of
judicial economy slightly favors transfer.
Conclusion
Because Defendant Steak N Shake has not shown that the balance of
interests strongly favors transfer, the Court denies the
Defendant's motions to transfer and stay proceedings.
Likewise, the Court denies as moot the Defendant's motion to stay
proceedings.
A full-text copy of the Court's Opinion & Order dated Aug. 30,
2021, is available at https://tinyurl.com/t87628t9 from
Leagle.com.
SUGAR CREEK: Cordell Seeks to Certify FLSA Collective Action
------------------------------------------------------------
In the class action lawsuit captioned as SARA CORDELL, on behalf of
herself and others similarly situated, v. SUGAR CREEK PACKING CO.,
Case No. 2:21-cv-00755-ALM-KAJ (S.D. Ohio), the Plaintiff asks the
Court pursuant to section 216(b) of the Fair Labor Standards Act
(FLSA), to enter an order:
a. Conditionally certifying this case as a collective action
under the FLSA against Sugar Creek Packing Co. on behalf
of Plaintiff and others similarly situated;
b. Directing that notice be sent by United States mail and
email to the following class:
"All former and current hourly employees of Sugar Creek
Packing Co. who worked 40 or more hours in any workweek
from February 22, 2018 to the present, were involved in
the manufacturing, processing, packaging, or handling of
food products, and who engaged in handwashing, donning and
doffing of sanitary gear, or related travel during an
unpaid meal break."
c. Directing the parties to confer and submit within 14 days
a proposed Notice informing such putative class members of
the pendency of this collective action and permitting them
to opt into the case by signing and submitting a Consent
to Join Form;
d. Directing Defendant to provide, in importable format, such
as Excel, and within 14 days, the identity of putative
class members, including their full names, dates of
employment, last known home addresses, and personal email
addresses (to the extent that Defendant has them);
e. Directing that Notice, in the form approved by the Court,
be sent to putative class members by mail and email within
30 days; and
f. Directing that duplicate copies of the Notice may be sent
in the event new, updated, or corrected mailing addresses
or email addresses are found for any putative class
member.
SugarCreek manufactures brandworthy food solutions for the nation's
largest and best known brands.
A copy of the Plaintiff's motion to certify class dated Sept. 7,
2021 is available from PacerMonitor.com at https://bit.ly/3tHGn39
at no extra charge.[CC]
The Plaintiff is represented by:
Jeffrey J. Moyle, Esq.
Robi J. Baishnab, Esq.
NILGES DRAHER LLC
1360 E. 9th Street, Suite 808
Cleveland, OH 44114
Telephone: (216) 230-2955
Facsimile: (330) 754-1430
E-mail: jmoyle@ohlaborlaw.com
rbaishnab@ohlaborlaw.com
- and -
Hans A. Nilges, Esq.
Shannon M. Draher, Esq.
7266 Portage Street, N.W., Suite D
Massillon, OH 44646
Telephone: (330) 470-4428
Facsimile: (330) 754-1430
E-mail: hans@ohlaborlaw.com
sdraher@ohlaborlaw.com
SUNCOKE ENERGY: Third Circuit Affirms Dismissal of Cohn Class Suit
------------------------------------------------------------------
In the case, MICHAEL COHN, Individually and on behalf of All Others
Similarly Situated, Appellant v. SUNCOKE ENERGY PARTNERS, L.P.;
SUNCOKE ENERGY, INC.; MICHAEL G. RIPPEY; ALVIN BLEDSOE; P. MICHAEL
HARDESTY; JOHN W. SOMERHALDER, II; FAY WEST; KATHERINE T. GATES;
MARTHA CARNES; JOHN W. ROWE; PETER B. HAMILTON; JAMES E. SWEETNAM;
SUSAN R. LANDAHL; ROBERT A. PEISER; SUNCOKE ENERGY PARTNERS GP LLC,
Case No. 20-3069 (3d Cir.), the U.S. Court of Appeals for the Third
Circuit affirms the District Court's order granting the Defendants'
motion to dismiss.
Background
Securities transactions are highly regulated. Mergers require
particular attention so as to maintain public confidence.
Allegations of impropriety must be assessed and addressed. The
securities class action lawsuit arises out of a stock-for-unit
merger transaction wherein SunCoke Energy, Inc. ("SunCoke")
acquired all outstanding units of the target entity, SunCoke Energy
Partners, L.P. ("SXCP"). Public unitholders of the target entity
challenged the transaction, asserting that the organizational
mechanism designed to protect against conflicts of interest was
fatally ineffective in this instance, rendering the merger
illegitimate.
Mr. Cohn was a unitholder of SXCP. In 2019, SXCP was acquired by
SunCoke. Prior to the merger, SXCP traded independently of SunCoke
on the New York Stock Exchange. The merger involved SXCP's sole
General Partner, SunCoke Energy Partners, G.P. LLC ("SXCP GP"),
which was 100% owned by SunCoke through SunCoke's wholly owned
subsidiary Sun Coal & Coke LLC ("SC&C"). SC&C was SXCP's
Organizational Limited Partner. SC&C was also the record-holder and
beneficial owner of 61.7% of SXCP's outstanding common units, which
it had the right to vote.
SXCP was governed by a Limited Partnership Agreement ("LPA"), to
which SXCP, SXCP GP, and SC&C were all signatories. The LPA defines
"Special Approval" as "approval by a majority of the members of the
Conflicts Committee," which is in turn defined as a committee of
the Board of Directors comprising at least two independent
directors, none of whom is an officer or employee of SXCP GP or its
affiliates or holds any ownership interest therein.
Pursuant to a merger agreement announced Feb. 5, 2019, SunCoke
acquired all outstanding common units of SXCP not already owned by
SunCoke in a stock-for-unit transaction. The merger was approved by
SXCP's Board of Directors and a majority of the members of the
Conflicts Committee, as well as holders of a majority of the
outstanding SunCoke common shares and SXCP common units. Through
SC&C, SunCoke alone indirectly owned a sufficient percentage of the
SXCP common units to approve the transaction on behalf of SXCP
common unitholders.
Several SXCP unitholders challenged the merger, and those suits
were consolidated in the action. The operative Consolidated Class
Action Complaint ("Complaint") alleges violations of Sections 14(a)
and 20(a) of the Securities Exchange Act of 1934 and rules
promulgated thereunder, as well as violations of Delaware state
law.
The District Court granted the Defendants' motion to dismiss,
finding that the Exchange Act claims necessarily failed because the
Plaintiff did not plead transaction causation, and the state law
claims necessarily failed because the Defendants' compliance with
Section 7.9(c)'s safe harbor provision insulated them from suit.
Mr. Cohn timely appealed. The Third Circuit's review of the
District Court's decision granting the motion to dismiss is
plenary.
Discussion
A. Exchange Act Claims
1. Section 14(a)
Counts I and II of the Complaint, allege violations of Section
14(a) of the Exchange Act, 15 U.S.C. Section 78n(a), and two rules
and regulations promulgated thereunder: 17 C.F.R. Section 244.100
and Rule 14a-9, respectively. Section 14(a) provides that it will
be unlawful "to solicit any proxy or consent or authorization in
respect of any security" in contravention of the rules and
regulations promulgated by the Securities and Exchange Commission.
To prevail on a Section 14(a) claim, a plaintiff must show "a
causal relationship between the violation and the injury for which
he seeks redress," which requires proof that "the proxy
solicitation itself, rather than the particular defect in the
solicitation materials, was an essential link in the accomplishment
of the transaction." In other words, the solicitation must form the
causal link between "a directors' proposal and the votes legally
required to authorize the action proposed."
The Third Circuit opines that the Complaint fails to establish the
requisite nexus. As the District Court correctly found, the Third
Circuit determines that Section 7.9(c) is merely an elective safe
harbor provision that, when utilized, provides a shield against
liability for breach of contract, fiduciary duty, or other duty or
obligation. Its own terms make clear that it is not a prerequisite
to the consummation of a merger, and this conclusion is bolstered
by the absence of any reference to the Special Approval process in
Article XIV.
It may be that the Appellees would have opted not to finalize the
merger absent Special Approval in light of the potential exposure
to legal liability. However, this hypothetical has no more traction
here than its analog did in Scattergood, where we applied "Virginia
Bankshares' bar on nonvoting causation theories" to find that the
defendant's "legal power to effectuate a freeze-out merger"
precluded a showing of transaction causation. The critical fact is
that SunCoke, through SC&C, controlled a majority of the
outstanding common units, and therefore had "the votes legally
required to authorize the action proposed."
Hence, the District Court correctly held that the Appellant failed
to plead transaction causation here because the minority
unitholders' "votes were not needed to authorize the merger."
2. Section 20(a)
Count III of the Complaint alleges violations of Section 20(a) of
the Exchange Act, which provides for liability of controlling
persons who aid and abet violations of the Exchange Act. 15 U.S.C.
Section 78t(a). A violation of the Exchange Act is a predicate for
derivative liability under Section 20(a), so Appellant's failure to
plead any such violation is fatal to this claim.
B. State Law Claims
Counts IV and V of the Complaint allege that the SXCP GP's Board
members breached their duty of good faith and fair dealing and
their fiduciary duty. Counts VI and VII allege that SXCP GP and its
Board members are liable for breach of contract. Finally, Count
VIII of the Complaint alleges that SunCoke and its Board members
are liable for aiding and abetting breach of contract.
The District Court found that these claims were barred because the
Special Approval process entitled the Defendants "to the protection
of the partnership agreement's safe harbor provision." The Third
Circuit agrees.
The Appellant argues that Section 7.9(c) does not shield the
Appellees from suit because the Conflicts Committee failed to
comply with its requirements, rendering the Special Approval
process defective.
The Third Circuit opines that the Appellant fails to identify any
contractual term that is absent from the LPA, could not have been
anticipated when the LPA was negotiated, and is necessary to
protect the reasonably expected fruits of the bargain.
Consequently, no violation of the implied covenant of good faith
and fair dealing has been pleaded, and Appellees are entitled to
the full protections of the LPA's safe harbor provision. The
Appellant's remaining state law claims, therefore, fail.
Conclusion
For the foregoing reasons, the Third Circuit affirms.
A full-text copy of the Court's Aug. 31, 2021 Opinion is available
at https://tinyurl.com/7tfe8svv from Leagle.com.
SYNEOS HEALTH: E.D. North Carolina Tosses Vaitkuviene Fraud Suit
----------------------------------------------------------------
The U.S. District Court for the Eastern District of North Carolina,
Western Division, grants the Defendants' motion to dismiss the
lawsuit entitled EGLE VAITKUVIENE, Individually and on Behalf of
All Others Similarly Situated, Plaintiff v. SYNEOS HEALTH, INC.,
ALISTAIR MacDONALD, GREGORY S. RUSH, MICHAEL A. BELL, ROBERT
BRECKON, DAVID F. BURGSTAHLER, LINDA S. HARTY, RICHARD N. KENDER;
WILLIAM E. KLITGAARD; KENNETH F. MEYERS, MATTHEW E. MONAGHAN, DAVID
Y. NORTON, AND ERIC P. PACQUES, Defendants, Case No. 5:18-CV-29-FL
(E.D.N.C.).
The putative securities fraud class action is before the Court upon
the Defendants' motion to dismiss, pursuant to Federal Rules of
Civil Procedure 12(b)(1) and 12(b)(6), and the Lead Plaintiffs'
motion to strike. Pursuant to 28 U.S.C. Section 636(b)(1)(A) and
(B), United States Magistrate Judge Kimberly A. Swank, entered an
order and memorandum and recommendation ("M&R"), granting in part
and denying in part the motion to strike, and recommending that the
Defendants' motion to dismiss be denied. The Defendants filed
objections, and the Lead Plaintiffs responded thereto.
Statement of the Case
Plaintiff Egle Vaitkuviene commenced this action on Jan. 25, 2018,
alleging Defendant Syneos, and its officers Defendants Alistair
MacDonald and Gregory S. Rush, violated the Securities Exchange Act
of 1934 ("Exchange Act"), Sections 10(b) and 20(a), and applicable
regulations by making fraudulent misrepresentations and omissions
to investors in connection with a merger between Defendant Syneos
and inVentiv Health, Inc.
On May 29, 2018, the Court appointed San Antonio Fire & Police
Pension Fund and the El Paso Firemen & Policemen's Pension Fund as
Lead Plaintiffs and approved the Lead Plaintiffs' selection of
counsel. The Lead plaintiffs filed the operative amended complaint
on July 30, 2018, asserting claims for: 1) violations of Section
10(b) of the Exchange Act and Securities and Exchange Commission
("SEC") Rule 10b-5 against defendants Syneos, MacDonald, Rush, and
Michael A. Bell, the CEO of inVentiv prior to the merger, ("count
one"); 2) control person liability under Section 20(a) of the
Exchange Act, predicated on the alleged Section 10(b) violations,
against Defendants MacDonald, Rush, and Bell ("count two"); 3)
violations of Section 14(a) of the Exchange Act and SEC Rule 14a-9
against Defendants Syneos, MacDonald, Rush, Bell, as well as
Defendant Syneos's board of directors, including Robert Breckon,
David F. Burgstahler, Linda S. Harty, Richard N. Kender, William E.
Klitgaard, Kenneth F. Meyers, Matthew E. Monaghan, David Y. Norton,
and Eric P. Paques ("count three"); and 4) control person liability
under Section 20(a) of the Exchange Act, predicated on alleged
Section 14(a) violations, against Defendants Syneos, MacDonald,
Rush, Bell, Breckon, Burgstahler, Harty, Kender, Klitgaard,
Monaghan, Norton, and Eric P. Paques ("count four").
The Lead Plaintiffs seek to certify a class action on behalf of all
purchasers of Defendant Syneos's common stock between May 10, 2017,
and Nov. 8, 2017, ("class period") and all persons or entities that
held defendant Syneos's common stock as of June 29, 2017. The Lead
Plaintiffs also seek damages, costs, attorneys' fees and other
relief.
On Sept. 20, 2018, the Defendants filed the instant motion to
dismiss for failure to state a claim. The Defendants argue that the
Lead Plaintiffs fail to plead an actionable misstatement or
omission, fail to allege facts which raise a strong inference of
scienter, and have failed to plead loss causation. In support of
the motion, the Defendants rely upon several exhibits, including
press releases, SEC filings, transcripts of investor calls, and
investor presentations. Reference is made to the Defendants' index
of exhibits submitted for the court's consideration.
The Lead Plaintiffs responded in opposition, and the Defendants
replied. In the meantime, the Lead Plaintiffs filed the instant
motion to strike certain exhibits filed in support of motion to
dismiss, or in the alternative, to convert the motion to dismiss to
a motion for summary judgment. The Defendants responded in
opposition on Nov. 21, 2018, and the Lead Plaintiffs replied Dec.
5, 2018.
The motions were referred to the Magistrate Judge on Dec. 11, 2018.
A few months later, related case Murakami v. Syneos Health, Inc.,
3:19-CV-7377, was instituted against Defendant Syneos in the U.S.
District Court for the District of New Jersey. Upon notice that the
Lead Plaintiffs moved to intervene and transfer Murakami to this
Court, the Magistrate Judge stayed the instant action pending
further litigation in Murakami. On June 2, 2020, the parties filed
joint notice, indicating that Murakami was dismissed, with no
appeal being filed.
On Aug. 7, 2020, the Magistrate Judge lifted the stay and entered
an order and M&R granting in part and denying in part the Lead
Plaintiffs' motion to strike, and recommending that that the
Defendants' motion to dismiss be denied. The Defendants filed
objections to the M&R on Sept. 4, 2020, and the Lead Plaintiffs
responded thereto on Oct. 2, 2020. The Defendants filed notice of
suggestion of subsequently controlling authority on Feb. 24, 2021,
citing to the case In re Triangle Cap. Corp. Sec. Litig., 988 F.3d
743, 751 (4th Cir. 2021).
Motion to Strike
The Defendants object to the Magistrate Judge's exclusion of Forms
4 filed with the SEC by Defendants Macdonald and Rush ("exhibits 18
through 32"), attached to the Defendants' motion to dismiss. The
SEC Forms 4 reflects Defendants Macdonald's and Rush's stock
transactions. The amended complaint refers to these transactions in
explicit detail, providing the exact number of shares sold, the
price of those shares, and the dates on which the transactions
occurred.
The Defendants contend that the Forms 4 were the Lead Plaintiffs'
exclusive source for such allegations, and lead plaintiffs do not
suggest otherwise. Moreover, the Lead Plaintiffs' scienter theory
relies heavily on these transactions. Finally, the Lead Plaintiffs
do not dispute that the Form 4s attached to the motion to dismiss
are the same Forms 4 that Defendants Macdonald and Rush filed with
the SEC. Therefore, the Court may consider the Forms 4.
The Lead plaintiffs argue, nonetheless, that the court must exclude
the Forms 4, relying upon Zak v. Chelsea Therapeutics Int'l, Ltd.,
780 F.3d 597, 606-07 (4th Cir. 2015). In Zak, the United States
Court of Appeals for the Fourth Circuit held that the district
court improperly considered Forms 4 that were attached to motion to
dismiss.
District Judge Louise W. Flanagan finds that Zak is instructively
distinguishable, however, because the complaint in that case did
not include any allegations about stock sales. Accordingly, in Zak,
the Forms 4 were not an integral part of the complaint.
Judge Flanagan opines that in contrast, the Lead Plaintiffs have
placed Defendants Rush's and Macdonald's stock sales in issue, and
they rely heavily on those sales to support their scienter theory.
Under such circumstances, courts routinely consider Forms 4
attached to motions to dismiss.
Accordingly, the Court denies that part of the Lead Plaintiffs'
motion seeking to strike exhibits 18 through 32, and affirms the
Magistrate Judge's ruling on motion to strike in remaining part.
Motion to Dismiss
To survive a motion to dismiss under Rule 12(b)(6), a complaint
must contain sufficient factual matter, accepted as true, to state
a claim to relief that is plausible on its face (Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009), quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)). Factual allegations must be enough to raise
a right to relief above the speculative level. In evaluating
whether a claim is stated, the court accepts all well-pled facts as
true and construes these facts in the light most favorable to the
plaintiff, but does not consider legal conclusions, elements of a
cause of action, bare assertions devoid of further factual
enhancement, unwarranted inferences, unreasonable conclusions, or
arguments.
The Magistrate Judge determined that the Lead Plaintiffs
sufficiently alleged the foregoing elements. The Defendants object
to the Magistrate Judge's determination, arguing that the Lead
Plaintiffs have not pleaded a strong inference of scienter, among
other elements.
The Lead Plaintiffs argue that, prior to Defendant Syneos's merger
with inVentiv, the Defendants knew inVentiv's commercial segment
was highly dependent on obtaining contracts with 100-plus sales
team pharmaceutical companies, that only two such contracts were
available for bid as of May, June, and July 2017, and inVentiv
failed to secure either of those contracts.
The Lead Plaintiffs adds that the Defendants withheld this
information in order to obtain shareholder approval of the merger,
and instead told shareholders that the key metric for growth was
the number of new drug approvals by the Federal Drug Administration
("FDA"). Once the shareholders approved the merger, the Lead
Plaintiffs assert that the Defendants benefited from their alleged
omissions by selling their stock at an inflated price and only then
revealed the purported true key metric--the 100-plus sales team
contracts.
Judge Flanagan finds that the Lead Plaintiffs' allegations fail to
support this scienter theory. The Lead Plaintiffs rely heavily on
the notion that the Defendants knew, prior to the merger, that the
key metric for inVentiv's commercial success was its ability to
obtain contracts with 100-plus sales team pharmaceutical companies.
While relevant to the Court's holistic analysis, the Defendants'
access to information, alone, does not establish scienter, Judge
Flanagan points out.
Judge Flanagan also finds, among other things, that the Lead
Plaintiffs have not pleaded such allegations with sufficient
particularity. Specifically, the Lead Plaintiffs do not allege when
the Defendants learned that 100-plus sales teams were the key
metric, who informed them, how confident the source was in this
metric, or whether the source informed the Defendants how many
100-plus sales team contracts were required for commercial
success.
In fact, the only instance where the Lead Plaintiffs allege any
specific connection between the Defendants and the phrase "100-plus
sales team" is during the Defendants' post-merger Nov. 9, 2017
conference call with shareholders, Judge Flanagan notes.
In sum, weighing the competing inferences, the Lead Plaintiffs'
allegations of fraud are not cogent and compelling compared to the
alternative explanation--that the Defendants, genuinely optimistic
about the growth prospects of a merger, in an industry driven by
end-year sales, conveyed such optimism to shareholders in the
middle of 2017; then, when year-end revenues did not rise to
expected levels, defendants revised their earlier projections to
take into account developments in the commercial sector following
the complex integration of two companies.
Accordingly, Judge Flanagan holds that the Lead Plaintiffs have not
met their heightened burden under the PSLRA to plead scienter, and
the Defendants' motion to dismiss is granted in this part. The Lead
Plaintiffs' Section 10(b) claims are dismissed without prejudice.
Where the Court dismisses without prejudice the Lead Plaintiffs'
Section 10(b) claims, it also dismisses without prejudice their
Section 20(a) claims against Defendants Bell, Rush, and Macdonald.
The Magistrate Judge determined that the Lead Plaintiffs
sufficiently alleged material misrepresentations and omissions in
proxy materials. The Lead Plaintiffs allege that the Defendants
made statements in proxy materials projecting that the merger would
result in high single-digit accretion in 2018 and double-digit
accretion in 2019; forecasting inVentiv's net service revenue
growth, adjusted EBITDA growth, and predicting a return to
historical growth in 2018; indicating that the commercial business
was well positioned for growth due to the increase in drug
approvals; stating that drug approvals were a "huge leading
indicator" for modeling what the commercial business looks like
going forward; and indicating that they were confident in the
prospect of double digit growth.
Considering the total mix of information available to the
reasonable investor, including the extensive and specific
cautionary language provided by the Defendants, the alleged
misrepresentations and omissions were not materially misleading,
Judge Flanagan holds. She explains that the warnings were extensive
and tailored specifically to the statements challenged by the Lead
Plaintiffs.
In light of these cautionary statements, the Court finds that a
reasonable investor would not have viewed the total mix of
information significantly altered if the alleged omission regarding
100-plus sales team contracts had been disclosed. Accordingly, the
Court grants the Defendants' motion to dismiss in this part, and
the Lead Plaintiffs' Section 14(a) claims are dismissed without
prejudice. The Defendants' motion to dismiss is also granted in
part, and the Lead Plaintiffs' Section 20(a) claims are dismissed
without prejudice.
Conclusion
Based on the foregoing, the Court adopts in part and rejects in
part the M&R, as set forth here. The Lead Plaintiffs' motion to
strike is granted in part and denied in part. The Defendants'
motion to dismiss is granted, and the Lead Plaintiffs' amended
complaint is dismissed without prejudice.
The Lead Plaintiffs are allowed opportunity to file a motion to
amend their amended complaint within 21 days of the date of this
order. In the event the Lead Plaintiffs do not do so, without
further order of the Court, the Clerk will enter judgment in favor
of the Defendants on the basis of this order, and close the case.
A full-text copy of the Court's Order dated Aug. 30, 2021, is
available at https://tinyurl.com/ty8bs7uv from Leagle.com.
SYSCO SACRAMENTO: Fite Sues Over Wage-and-Hour Violations in Cal.
-----------------------------------------------------------------
GLENN FITE, individually and on behalf of all others similarly
situated, Plaintiff v. SYSCO SACRAMENTO, INC., and DOES 1-50,
inclusive, Defendants, Case No. 2:21-at-00853 (E.D. Cal., September
10, 2021) is a class action against the Defendants for violations
of the California Labor Code and the Unfair Competition Law
including failure to pay minimum and overtime wages, failure to
keep accurate time records, failure to provide lawful meal or rest
breaks, failure to pay all wages due upon termination, and failure
to provide accurate itemized wage statements.
The Plaintiff worked for the Defendants as a non-exempt employee to
perform distribution duties in and around northern California.
Sysco Sacramento, Inc. is a food products supplier located in
Pleasant Grove, California, with its principal place of business in
Houston, Texas. [BN]
The Plaintiff is represented by:
Stan S. Mallison, Esq.
Hector R. Martinez, Esq.
Daniel C. Keller, Esq.
MALLISON & MARTINEZ
1939 Harrison Street, Suite 730
Oakland, CA 94612-3547
Telephone: (510) 832-9999
Facsimile: (510) 832-1101
Email: StanM@TheMMLawFirm.com
HectorM@TheMMLawFirm.com
DKeller@TheMMLawFirm.com
T-MOBILE USA: Partial Bids to Dismiss in Craigville Suit Granted
----------------------------------------------------------------
In the case, CRAIGVILLE TELEPHONE CO. d/b/a ADAMS WELLS INTERNET
TELECOM TV and CONSOLIDATED TELEPHONE CO. d/b/a CTC, individually
and on Behalf of similarly situated companies, Plaintiffs v.
T-MOBILE USA INC., and INTELIQUENT, INC., Defendants, Case No. 19 C
7190 (N.D. Ill.), Judge John Z. Lee of the U.S. District Court for
the Northern District of Illinois, Eastern Division, granted the
Defendants' motions to dismiss the same counts of the Plaintiffs'
second amended class action complaint with prejudice.
Background
In the putative class action, the Plaintiffs, local telephone
companies Craigville Telephone Co. and Consolidated Telephone Co.
allege that the Defendants, T-Mobile and Inteliquent, engaged in a
scheme to perpetuate call connection issues for calls originating
from cell phones and terminating to landline telephones located in
certain rural areas, which they covered up by inserting false ring
tones on the caller's end.
The Plaintiffs are "local exchange carriers" (or LECs) that are
responsible for routing phone calls directly to the called party
for calls "terminating to a traditional landline telephone."
T-Mobile is a "mobile carrier" that transmits calls originating
from a cell phone to nearby wireless towers. Inteliquent is an
"intermediate provider," on which mobile carriers like T-Mobile
rely, to route calls between wireless towers and LECs.
As the last step in the call process, LECs typically incur higher
costs to build and maintain their networks than other
telecommunication carriers. To help LECs recover these expenses,
the Federal Communications Commission ("the FCC") has introduced a
system of intercarrier compensation requiring mobile carriers and
intermediate providers to pay "access charges" to LECs for each
call that they complete.
In 2012, the FCC issued a declaratory ruling to address a "pattern
of call completion and service quality problems on long distance
calls to certain rural areas," where mobile carriers and
intermediate providers typically incurred the highest access
charges. The FCC ruled that it was a violation of the
Communications Act, 47 U.S.C. Section 201(b), to fail to correct
such problems, as well as to use "false ring tones" to mask
prolonged call set-up times. False ring tones occur "when an
originating or intermediate provider prematurely triggers audible
ring tones to the caller before the call setup request has actually
reached the terminating provider, leading the calling party to
believe that the called party's phone is ringing when in fact it is
not." The FCC codified this prohibition on the use of false ring
tones in 2013.
In 2016, T-Mobile acknowledged in a consent decree that it had
violated this prohibition by continuing to use false ring tones and
failing to "correct problems with its Intermediate Providers'
delivery of calls to consumers in certain rural areas." Based
largely on this admission, the Plaintiffs allege that the
Defendants, in an effort to minimize their costs, engaged in a
scheme to perpetuate these call completion problems and covered
them up with false ring tones and other call-blocking practices.
Like its predecessor, the second amended complaint raises eight
counts. Count I alleges that T-Mobile violated 47 U.S.C. Section
201(b) by inserting false ring tones. Count II alleges that both
Defendants violated Section 201(b) by failing to ensure delivery of
calls. Count III alleges that Defendants violated another provision
of the Communications Act, 47 U.S.C. Section 202(a), by
perpetuating low quality service to rural localities. Counts IV and
V allege that Defendants' false ring tone scheme violated the
Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18
U.S.C. Section 1962(c) and (d), respectively. Count VI alleges
tortious interference with a prospective economic advantage under
Illinois common law against T-Mobile. Count VII alleges that
Defendants violated Illinois' Consumer Fraud and Deceptive Business
Practices Act, 815 Ill. Comp. Stat. 505/1, et seq. And Count VIII
alleges that the Defendants engaged in a civil conspiracy.
The Court's prior opinion dismissed Counts IV through VII with
regard to T-Mobile and Counts II through V and VII with regard to
Inteliquent under Rule 12(b)(6) of the Federal Rules of Civil
Procedure, while giving the Plaintiffs a chance to replead them.
Now that the Plaintiffs have done so, the Defendants each move to
dismiss them under Rule 12(b)(6) anew and with prejudice.
Analysis
A. T-Mobile's Motion to Dismiss
1. Counts IV and V
The Court previously dismissed Counts IV and V because the first
amended complaint did not plausibly allege that T-Mobile used false
ring tones with the requisite "intent to defraud" Plaintiffs of
access charges. Specifically, the Court found it unreasonable to
infer that T-Mobile conducted the alleged false ring tone scheme
for the purpose of inducing callers to hang up the phone before the
call setup request had reached the terminating provider, thereby
depriving Plaintiffs of access charges.
In asserting that the second amended corrects this deficiency, the
Plaintiffs rely largely on the FCC's findings that, because false
ring tones make the calling party believe that "the phone is
ringing at the called party's premises when it is not," the caller
"may often hang up" as a result, "thinking nobody is available to
receive the call."
Even accepting this is so, Judge Lee opines that the Plaintiffs
fail to sufficiently allege that T-Mobile intended the false ring
tones to accomplish this result. Nor did the FCC find that T-Mobile
had inserted false rings tones in order to induce callers to hang
up. In the same vein, the FCC recognized that the use of false ring
tones is "a symptom" of the underlying call completion problems
that T-Mobile had failed to fix as of 2016. The new complaint fails
to allege facts from which it would be reasonable to infer that the
intent of T-Mobile's false ringing scheme was to fraudulently
deprive Plaintiffs of access charges.
Thus, because the Plaintiffs do not plausibly allege that T-Mobile
engaged in predicate acts of wire fraud, Count IV fails to state a
claim under Section 1962(c). For the same reason, Count V fails to
state a claim under Section 1962(d) "based on the same facts." Both
counts are dismissed with prejudice.
2. Count VI
A similar deficiency dooms Count VI, which alleges that T-Mobile
tortiously interfered with the Plaintiffs' prospective economic
advantage, Judge Lee finds. To state such a claim under Illinois
law, "a plaintiff must allege (1) a reasonable expectancy of
entering into a valid business relationship, (2) the defendant's
knowledge of the expectancy, (3) an intentional and unjustified
interference by the defendant that induced or caused a breach or
termination of the expectancy, and (4) damage to the plaintiff
resulting from the defendant's interference." To establish the
third element, the plaintiff "must allege facts which demonstrate
that the defendants acted with the purpose of injuring the
plaintiff's expectancies."
Just as the Plaintiffs fail to establish that T-Mobile acted with
intent to defraud them of access charges, so too do they fail to
demonstrate that T-Mobile acted with intent to injure their
expectancies of receiving access charges. As noted, the Plaintiffs
continue to allege that T-Mobile's interferences with those
expectancies, which arose from its persistent failure to fix call
completion problems, "were attributable to its desire to minimize
its costs rather than any desire to harm the Plaintiffs." Because
this benign purpose of preventing "a drain on profits," Judge Lee
holds it is still the only one that may reasonably be inferred from
T-Mobile's alleged scheme, Count VI fails to state a claim of
tortious interference and is dismissed with prejudice.
3. Count VII
Lastly, Count VII alleges that the Defendants violated Illinois's
Consumer Fraud and Deceptive Business Practices Act ("ICFA"). As
the Court previously noted, the ICFA generally "does not apply to
fraudulent transactions which take place outside Illinois." As a
result, a non-resident plaintiff may only invoke the ICFA if "the
circumstances that relate to the disputed transaction occured
primarily and substantially in Illinois." And because the first
amended complaint alleged only that the fraudulent scheme "was
disseminated from" Illinois, which "is insufficient to establish
the necessary connections to Illinois," the Court dismissed Count
VII.
Judge Lee holds that the second amended complaint fares no better
with respect to Count VII than its predecessor. Simply put, the
allegations on which the Plaintiffs rely, none of which is
materially different from those in their first amended complaint,
all relate to the Defendants' alleged dissemination of the
challenged scheme. As a result, the Judge concludes that the
Plaintiffs have no cause of action under the ICFA and dismisses
Count VII with prejudice.
B. Inteliquent's Motion to Dismiss
Turning to Inteliquent's motion to dismiss, it again raises the
same arguments with regard to Counts IV through V and VII as
T-Mobile. Since these arguments are equally availing here, the
Court dismisses these counts to as Inteliquent with prejudice as
well.
That leaves Counts II and III as to Inteliquent. Last time around,
the Court dismissed these counts because the duty to fix call
completion problems imposed by the 2012 Ruling apply only to
"covered providers," whereas the regulations state that
intermediate providers "do not serve as a covered provider in the
context of originating or terminating a given call." This time
around, the Plaintiffs attempt to avert this outcome in two ways.
First, they suggest that the Court previously erred in reading the
2018 Order to clarify that this duty does not apply to all
carriers. Judge Lee finds it incorrect. He does not find plausible
the Plaintiffs' new allegations that Inteliquent also served as a
carrier, given that the 2012 Ruling distinguished between carriers
and intermediate providers, and T-Mobile admittedly served as the
carrier.
Second, the Plaintiffs argue that Inteliquent is both an
intermediate provider and a covered provider with respect to the
T-Mobile calls. This view is equally unpersuasive, Judge Lee holds.
He says, contrary to the Plaintiffs' assertion, covered providers
and intermediate providers are mutually exclusive terms as the
regulations currently define them. Along the same lines, the
allegations on which Plaintiffs rely to show that Inteliquent was a
covered provider do not suggest that it made the initial
long-distance call path choice for any "of T-Mobile's traffic."
Accordingly, Counts II and III fail to allege violations of the
Communications Act by Inteliquent and are dismissed with prejudice
as to it.
Conclusion
For these reasons, Judge Lee granted the Defendants' partial
motions to dismiss. Counts IV through VII of the second amended
class action complaint are dismissed with prejudice as to both
Defendants, while Counts II and III are dismissed with prejudice as
to Inteliquent.
A full-text copy of the Court's Aug. 31, 2021 Memorandum Opinion &
Order is available at https://tinyurl.com/cxtthfn4 from
Leagle.com.
T-MOBILE USA: Wellman Sues Over Failure to Secure Customers' Info
-----------------------------------------------------------------
RICHARD WELLMAN, on behalf of himself and all others similarly
situated, Plaintiff v. T-MOBILE USA, INC., Defendant, Case No.
2:21-cv-01250 (W.D. Wash., September 13, 2021) is a class action
against the Defendant for negligence, negligence per se, gross
negligence, invasion of privacy, breach of implied contract, breach
of implied covenant of good faith and fair dealing, unjust
enrichment, declaratory and injunctive relief, and violations of
California Unfair Competition Law, the California Consumers Legal
Remedies Act, the California Consumer Privacy Act, the Washington
Data Breach Notice Act, and the Washington Consumer Protection
Act.
According to the complaint, the Defendant failed to maintain
adequate data security to secure the personally identifiable
information of the Plaintiff and similarly situated customers which
resulted to a data breach. Moreover, the Defendant failed to
provide adequate notice to the Plaintiff and other members of the
Class that their PII had been accessed and compromised. As a result
of the Defendant's alleged misconduct, the Plaintiff and Class
members now face a substantially increased risk of identity theft.
T-Mobile USA, Inc. is a provider of wireless services in the United
States, with its principal place of business located at 3618
Factoria Boulevard SE, Bellevue, Washington. [BN]
The Plaintiff is represented by:
Roger M. Townsend, Esq.
BRESKIN JOHNSON & TOWNSEND PLLC
1000 Second Avenue, Suite 3670
Seattle, WA 98104
Telephone: (206) 652-8660
Facsimile: (206) 652-8290
E-mail: rtownsend@bjtlegal.com
- and –
Francis A. Bottini, Jr., Esq.
Albert Y. Chang, Esq.
Yury A. Kolesnikov, Esq.
Nicholaus H. Woltering, Esq.
BOTTINI & BOTTINI, INC.
7817 Ivanhoe Avenue, Suite 102
La Jolla, CA 92037
Telephone: (858) 914-2001
Facsimile: (858) 914-2002
E-mail: fbottini@bottinilaw.com
achang@bottinilaw.com
ykolesnikov@bottinilaw.com
nwoltering@bottinilaw.com
TINDER INC: Kim Appeals Ruling in Civil Rights Suit
---------------------------------------------------
Plaintiff Lisa Kim filed an appeal from a court ruling entered in
the lawsuit styled LISA KIM, individually on behalf of herself and
all others similarly situated, Plaintiff v. TINDER, INC., a
Delaware corporation; MATCH GROUP, LLC, a Delaware limited
liability company; MATCH GROUP, INC., a Delaware corporation; and
DOES 1 through 10, inclusive, and each of them, Defendants, Case
No. 2-18-cv-03093-JFW-AS, in the U.S. District Court for the
Central District of California, Los Angeles.
The appellate case is captioned as Lisa Kim v. Tinder, Inc., et
al., Case No. 21-55951, in the United States Court of Appeals for
the Ninth Circuit, filed on Sep. 2, 2021.
As reported in the Class Action Reporter on Aug. 30, 2021, the U.S.
Court of Appeals for the Ninth Circuit issued an Opinion (a)
reversing the district court's approval of a pre-certification
class settlement; and
(b) vacating judgment and attorneys' fees award and remanding the
case to the district court for further
proceedings consistent with the Opinion.
Beginning in 2015, the dating app Tinder began offering reduced
pricing for those under 30, later changed to those under 29. In
2017, plaintiff Lisa Kim purchased a premium version of the Tinder
app, but because she was already in her thirties, she paid more for
her monthly subscription than those in their twenties. Kim brought
suit against Tinder in federal district court pursuant to the Class
Action Fairness Act of 2005 ("CAFA") for violations of California's
Unruh Civil Rights Act and its unfair competition statute. Over
Kim's opposition, Tinder successfully compelled arbitration. After
a daylong mediation session with a retired judge, Kim and Tinder
reached a settlement, before class certification, that applied to a
putative class.
Specifically, the settlement class included all California-based
Tinder users who were at least 29 years old when they subscribed to
Tinder's premium services and were charged a higher price than
younger subscribers. As part of the settlement, Tinder agreed to
eliminate age-based pricing in California for new subscribers.
Class members who maintained or reactivated their Tinder accounts
would automatically receive 50 "Super Likes" for which Tinder would
ordinarily have charged $50. Finally, class members who submitted a
valid claim form would also receive their choice of $25 in cash, 25
Super Likes, or a one-month free subscription to the premium Tinder
service previously purchased.
Class members Rich Allison and Steve Frye, whose attorneys
represent the lead plaintiff in a competing age-discrimination
class action against Tinder in California state court, were among
six class members who objected to the proposed settlement. These
two objectors, in particular, argued that Tinder offered too paltry
a cash payout, as well as Super Likes that premium subscribers did
not need and subscriptions that former subscribers did not want,
all in exchange for releasing valuable claims that had only been
strengthened by recent victories in related California actions.
Rejecting these objections, the district court certified the class
for settlement purposes, granted final approval of the proposed
settlement, and awarded Kim a $5,000 incentive payment and her
counsel $1.2 million in attorneys' fees. Allison and Frye now
appeal.
The Ninth Circuit concluded that the district court did not subject
the settlement agreement to a "a higher standard of fairness and a
more probing inquiry than may normally be required under Rule
23(e)." Further, the district court abused its discretion by
awarding attorneys' fees with reference to an unsupported
estimation of the value of injunctive relief and a wholly inflated
assessment of benefit to the class. Accordingly, the Ninth Circuit
reversed the district court's approval of the settlement, vacated
the judgment and attorneys' fees award, and remanded for the
district court to conduct the "more probing inquiry" that a
pre-certification class settlement demands.
The briefing schedule in the Appellate Case states that:
-- Appellant Lisa Kim Mediation Questionnaire was due on Sep. 9,
2021;
-- Transcript shall be ordered by Sep. 30, 2021;
-- Transcript is due on October 28, 2021;
-- Appellant Lisa Kim opening brief is due on December 8, 2021;
-- Appellees Match Group, Inc., Match Group, LLC and Tinder,
Inc. answering brief is due on Jan. 10, 2022; and
-- Appellant's optional reply brief is due 21 days after service
of the answering brief.[BN]
Plaintiff-Appellant LISA KIM, individually and on behalf of all
others similarly situated, is represented by:
Adrian Bacon, Esq.
LAW OFFICES OF TODD FRIEDMAN PC
21550 Oxnard Street, Suite 780
Woodland Hills, CA 91367
Telephone: (877) 206-4741
E-mail: abacon@attorneysforconsumers.com
- and -
Todd M. Friedman, Esq.
Thomas Edward Wheeler, Esq.
LAW OFFICES OF TODD M. FRIEDMAN
21031 Ventura Boulevard, Suite 340
Woodland Hills, CA 91364
Telephone: (323) 306-4234
E-mail: tfriedman@attorneysforconsumers.com
Defendants-Appellees TINDER, INC., a Delaware corporation; MATCH
GROUP, LLC, a Delaware limited liability company; and MATCH GROUP,
INC., a Delaware corporation, are represented by:
Donald Brown, Esq.
MANATT, PHELPS & PHILLIPS, LLP
2049 Century Park, E Suite 1700
Los Angeles, CA 90067
Telephone: (310) 312-4318
E-mail: dbrown@manatt.com
- and -
Robert H. Platt, Esq.
MANATT, PHELPS & PHILLIPS, LLP
11355 West Olympic Boulevard
Los Angeles, CA 90064
Telephone: (310) 312-4221
E-mail: rplatt@manatt.com
TRAINING LICENSING: Kuhnast Suit Alleges Unauthorized Sales Calls
-----------------------------------------------------------------
RICHARD KUHNAST, on behalf of himself and all others similarly
situated, Plaintiff v. TRAINING LICENSING CENTER LLC, Defendant,
Case No. 134338516 (Fla. Cir. Ct., 11th Jud. Cir., Miami-Dade Cty.,
September 10, 2021) is a class action against the Defendant for
violation of the Florida Telephone Solicitation Act.
The case arises from the Defendant's practice of engaging in
telephonic sales calls to consumers, including the Plaintiff,
without having secured prior express written consent. The
Defendant's telephonic sales calls have caused the Plaintiff and
Class members harm, including violations of their statutory rights,
statutory damages, annoyance, nuisance, and invasion of their
privacy.
Training Licensing Center LLC is a training center with its
headquarters in Miami, Florida. [BN]
The Plaintiff is represented by:
Ignacio Hiraldo, Esq.
IJH LAW
1200 Brickell Ave., Suite 1950
Miami, FL 33131
Telephone: (786) 496-4469
E-mail: IJhiraldo@IJhlaw.com
- and –
Michael Eisenband, Esq.
EISENBAND LAW, P.A.
515 E. Las Olas Boulevard, Suite 120
Ft. Lauderdale, FL 33301
Telephone: (954) 533-4092
E-mail: MEisenband@Eisenbandlaw.com
UNITED STATES: Bid to Reconsider in Castellar v. Mayorkas Denied
----------------------------------------------------------------
The U.S. District Court for the Southern District of California
denies the Plaintiffs' motion for reconsideration in the lawsuit
captioned JOSE ORLANDO CANCINO CASTELLAR, et al., Plaintiffs v.
ALEJANDRO MAYORKAS, et al., Defendants, Case No.
17-cv-00491-BAS-AHG (S.D. Cal.).
Defendant Alejandro Nicholas Mayorkas is the secretary of the
Department of Homeland Security ("DHS").
In this motion for reconsideration, the Plaintiffs ask the Court to
reinstate their Fourth Amendment claims in light of Gonzalez v.
U.S. Immigr. & Customs Enf't, 975 F.3d 788 (9th Cir. 2020), and
Dep't of Homeland Sec. v. Regents of Univ. of Cal., 140 S.Ct. 1891
(2020). The Court is asked to decide whether the two cases
constitute an intervening change in controlling law that requires
altering the Court's prior rulings.
In the prior rulings, the Court found that: (1) 8 U.S.C. Section
1252(b)(9) bars jurisdiction over the Plaintiffs' Fourth Amendment
claim challenging continued detention beyond 48 hours without a
determination of probable cause by a neutral decisionmaker, and (2)
8 U.S.C. Section 1252(g) bars jurisdiction over Plaintiff
Gonzalez's Fourth Amendment claim because he was initially placed
into mandatory detention as a result of an expedited removal
proceeding.
Relevant Background
The Plaintiffs filed the putative class action complaint and habeas
petition, alleging that the Defendants have a "policy and practice
of detaining individuals for extended periods without promptly
presenting them for an initial hearing before an immigration judge
or promptly seeking judicial review of probable cause for
detention." Each Plaintiff was taken into custody by various
immigration enforcement agencies and detained pursuant to the
Defendants' alleged policy. The Plaintiffs alleged that "many
individuals" who have claims to relief from removal "routinely
languish in detention for two months or longer before they see a
judge" because of the Defendants' alleged policy.
The Complaint challenged the Defendants' conduct as violating (1)
detained individuals' Fifth Amendment procedural and substantive
due process rights by causing detention without prompt presentment,
(2) their Fourth Amendment rights to a prompt judicial
determination of whether probable cause justifies their detention,
and (3) the Administrative Procedure Act ("APA"). The Plaintiffs
requested declaratory relief, an injunction, and the issuance of a
writ of habeas "commanding the release of Plaintiff-Petitioners and
class members from detention" to the extent their right to prompt
presentment and probable cause determination was violated.
The Defendants moved to dismiss for lack of jurisdiction pursuant
to Rule 12(b)(1) of the Federal Rules of Civil Procedure and for
failure to state a claim pursuant to Rule 12(b)(6).
On Feb. 8, 2018, the Court granted the Defendants' motion to
dismiss for lack of jurisdiction. The Court determined that it
lacks jurisdiction over Plaintiff Gonzalez's Fourth Amendment
probable cause claim pursuant to 8 U.S.C. Section 1252(g) because
he was initially placed into mandatory detention as a result of
expedited removal proceedings. The Court further determined that 8
U.S.C. Sections 1252(a)(5) and 1252(b)(9) deprive it of
jurisdiction over Cancino's and Hernandez's Fourth Amendment claims
and all Plaintiffs' Fifth Amendment claims because those claims
arise from removal proceedings.
The Court concluded that the statutory provisions require the
Plaintiffs to raise these claims in in a petition for review
("PFR"). Lastly, the Court determined that the Plaintiffs' request
for habeas relief did not prevent the channeling of their claims.
The Court dismissed the Complaint, but granted the Plaintiffs'
leave to amend to assert claims over which the Court may properly
exercise jurisdiction.
On Feb. 27, 2018, the Supreme Court decided Jennings v. Rodriguez,
138 S.Ct. 830 (2018). The Plaintiffs moved for reconsideration of
the Order's Section 1252(b)(9) conclusions. The Court applied
Jennings by asking whether the legal questions raised by the
Plaintiffs' claims arose from the removal proceedings within the
scope of Section 1252(b)(9).
As to Plaintiffs' Fourth Amendment claims, the Court identified the
following legal question: whether, after 48 hours of arrest and
before an initial master calendar hearing, a detainee should be
provided an independent probable cause determination of the
detainee's removability. Because the probable cause determination
requested by the Plaintiffs would not concern any purely custodial
matters such as flight risk but only scrutinize the individual's
removability, the Court concluded that the Plaintiffs' Fourth
Amendment claims raised legal questions that arose from an action
taken or proceeding brought to remove an alien and are, thus,
barred under Section 1252(b)(9).
As to the Fifth Amendment claims, the Court found that the
Plaintiffs raised the following legal question: whether the
government violates the Fifth Amendment by detaining individuals
without promptly presenting them before a judge. Because the
resolution of that question would require examining only the
"separate conduct" of immigration officials that causes a delay of
the process by which the removability is determined and not the
detainee's removability itself, the Court concluded that the Fifth
Amendment claims were outside the scope of Section 1252(b)(9).
Accordingly, the Court reinstated the Plaintiffs' Fifth Amendment
claims but not the Fourth Amendment claims.
The Defendants renewed the motion to dismiss the Complaint. The
Court granted the motion in part and denied it in part. The Court
dismissed Plaintiff Gonzalez's procedural due process claim and all
Plaintiffs' Section 706(1) APA claims but declined to dismiss other
Plaintiffs' procedural due process claims and all Plaintiffs'
substantive due process claims.
On June 18, 2020, the Supreme Court decided Dep't of Homeland Sec.
v. Regents of the Univ. of California, 140 S.Ct. 1891 (2020), and
on Sept. 11, 2020, the Ninth Circuit decided Gonzalez v. U.S.
Immigr. & Customs Enf't, 975 F.3d 788 (9th Cir. 2020).
The Plaintiffs move for reconsideration of the Court's prior
rulings dismissing the Plaintiffs' Fourth Amendment claims for lack
of subject matter jurisdiction. The Court held an oral argument.
Analysis
A. Section 1252(b)(9)
District Judge Cynthia Bashant notes that judicial review of all
questions of law and fact, including interpretation and application
of constitutional and statutory provisions, arising from any action
taken or proceeding brought to remove an alien from the United
States under this subchapter, Section 1252(b)(9), will be available
only in judicial review of a final order under this section.
The question is whether Gonzalez constitutes an intervening change
in controlling law that provides a valid reason for the Court to
reverse its prior conclusion that Section 1252(b)(9) bars
jurisdiction over the Plaintiffs' Fourth Amendment claims. The
Court finds that it does not.
1. The Ninth Circuit's Ruling in Gonzalez
Gonzalez was an action challenging Immigration and Customs
Enforcement (ICE)'s use of immigration detainers, brought by a
class representative who was a United States citizen booked on
state law criminal charges by the Los Angeles Police Department. An
ICE agent erroneously determined that the plaintiff was removeable
and issued an immigration detainer against him, requesting up to
five more days in jail after when the plaintiff could be released
from the county's custody on state criminal charges, so that ICE
could take him into custody. While the detainer remained pending,
the plaintiff sued the government to challenge the legality of the
detainer.
2. Whether Gonzalez Constitutes a Change in Controlling Law
The Plaintiffs argue Gonzalez constitutes an intervening change in
controlling law that requires reversing this Court's prior
application of Section 1252(b)(9) to the Plaintiffs' Fourth
Amendment claims.
Here, Judge Bashant holds that Gonzalez is not clearly
irreconcilable with the Court's application of Section 1252(b)(9),
nor does it create a significant shift that requires this Court to
change its analysis.
Accordingly, the Court does not find that Gonzalez constitutes an
intervening change in controlling authority. The Plaintiffs have
not otherwise shown that the Court has committed clear error or
made a decision that is manifestly unjust. Therefore, the Court
affirms its earlier ruling that Section 1252(b)(9) bars the
Plaintiffs' Fourth Amendment claims.
B. Section 1252(g)
Section 1252(g) provides that "no court shall have jurisdiction to
hear any cause or claim by or on behalf of any alien arising from
the decision or action by the Attorney General to commence
proceedings, adjudicate cases, or execute removal orders against
any alien under this chapter."
The Plaintiffs argue the Supreme Court's Regents decision
constitutes an intervening change in controlling law that requires
a reversal of this Court's Section 1252(g) conclusion. According to
the Plaintiffs, the Supreme Court clarified in Regents that Section
1252(g) "deprives courts of jurisdiction over a narrow set of
claims involving challenges to three discretionary decisions by
DHS."
However, Judge Bashant notes, the proposition that Section 1252(g)
should be applied narrowly to bar only claims that arise from the
decision or action by the Attorney General to commence proceedings,
adjudicate cases, or execute removal orders is not a new
interpretation of Section 1252(g). The Supreme Court and the Ninth
Circuit has so interpreted the provision for a long time, see Reno
v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471, 482 (1999), et
al.
This Court considered those precedents and concluded that Plaintiff
Gonzalez's Fourth Amendment claim falls under the narrow scope of
jurisdictional bar under Section 1252(g) because his claim arose
from the decision to commence expedited removal proceedings.
The Plaintiffs do not argue, and the Court does not find, that
Regents created a significant shift in the law, much less made
Sissoko v. Rocha, 509 F.3d 947 (9th Cir. 2007) ("Sissoko III")
clearly irreconcilable with the Regents decision. The Court finds
no reason to alter its application of Sissoko III to Plaintiff
Gonzalez's Fourth Amendment claim.
Therefore, the Court denies the Plaintiffs' request to reverse the
dismissal of Plaintiff Gonzalez's Fourth Amendment claim under
Section 1252(g).
Conclusion
The Court denies the Plaintiffs' motion for reconsideration.
A full-text copy of the Court's Order dated Aug. 30, 2021, is
available at https://tinyurl.com/4p9vyk from Leagle.com.
UNITED STATES: Court Dismisses Several Defendants From Hill Suit
----------------------------------------------------------------
In the lawsuit captioned RONDELL HILL, Plaintiff v. UNITED STATES
OF AMERICA, et al., Defendants, Case No. 21-03872 (KM) (D.N.J.),
the U.S. District Court for the District of New Jersey dismisses
with prejudice several Defendants named in the Plaintiff's amended
complaint.
Pro se Plaintiff Rondell Hill, a pretrial detainee at Essex County
Correctional Facility (ECCF), originally filed a complaint against
the United States on March 8, 2021, alleging various civil rights
violations related to restrictions imposed during the Covid-19
pandemic.
District Judge Kevin McNulty previously granted the Plaintiff in
forma pauperis ("IFP") status and leave to file an amended
complaint. The Plaintiff has now filed an amended complaint adding
various defendants: federal (the Marshal's Service, this Court,
Chief Judge Wolfson, the Department of Justice), and state
(Governor Murphy, Essex County, Director Ortiz, Warden Cirillo),
plus a state contractor (CFG Medical Services).
The Plaintiff also requests class certification, appointment of pro
bono counsel, and injunctive relief.
Having screened the Amended Complaint pursuant to 28 U.S.C. Section
1915(e)(2)(B), Judge McNulty will dismiss it for several reasons.
Discussion
The amended complaint, like the initial complaint, asserts civil
rights claims against the United States. The United States,
however, is not subject to suit for constitutional torts, including
these civil rights claims, and is entitled to absolute sovereign
immunity in this matter, Judge McNulty holds. The Plaintiff's civil
rights claims against the United States must, therefore, be
dismissed.
Likewise, many of the other named Defendants are also immune from
suit, Judge McNulty finds. Federal departments and agencies, such
as the Department of Justice and the United States Marshals
Service, are immune from suit in civil rights matters. Accordingly,
the Plaintiff's claims against the United States, Judge Wolfson,
this Court, the United States Marshals Service, and the United
States Department of Justice are dismissed.
The Plaintiff also contends, among other things, that this Court's
standing order violated his speedy trial rights and challenges the
pre-trial conditions of confinement, including "severe isolation,"
lack of family and attorney visitation, and limited medical care.
As discussed, Judge McNulty notes, the Plaintiff does not, for the
most part, specify which Defendants committed which violation, or
support his allegations of conspiracy with factual allegations.
Perhaps most problematically, the Plaintiff does not specify how
his own rights were violated, as opposed to making general
allegations of restrictive conditions of confinement imposed on
detainees in general.
As to the remaining named Defendants--Governor Murphy, Essex
County, Director Ortiz, Warden Cirillo, and CFG Medical
Services--the Plaintiff fails to plead adequate facts which would
indicate personal involvement in the alleged wrongs, Judge McNulty
holds.
Judge McNulty also finds that the Plaintiff does not plead the
Defendants' specific acts, other than to note that Governor Murphy
issued certain unspecified emergency orders (presumably those
related to COVID-19), and that Director Ortiz issued unspecified
"emergency declarations." The Plaintiff does not identify the
orders he challenges, state how they caused the specific rights
violations he wishes to challenge, or specify how any decisions,
policies, practices, or other actions by Defendants caused him
harm.
The Plaintiff has, therefore, failed to plead a cognizable claim
for relief based on civil rights violations as to any of the
remaining Defendants, and the Plaintiff's claims against them must,
therefore, be dismissed.
Similarly, the Plaintiff's bald assertion of a "conspiracy" among
the Defendants to deny him his rights does not preserve his
complaint, Judge McNulty holds. As the Plaintiff has failed to
plead facts giving rise to a plausible inference of actual
agreement or concerted action, he has failed to plead a conspiracy.
Any claims based on alleged conspiracy will, therefore, be
dismissed without prejudice against the remaining, non-immune
Defendants.
In addition to standard civil rights claims, the Plaintiff alleges
claims under two other federal statutes--the federal Civil
Racketeer Influenced and Corrupt Organizations Act (RICO) statute,
and the Religious Land Use and Institutionalized Persons Act
(RLUIPA).
To the extent the Plaintiff asserts Civil RICO claims, he has
failed to allege many of the elements of such a
claim--particularly, the essential elements of conduct of an
enterprise through a pattern of racketeering activity, Judge
McNulty finds. He has likewise failed to plead cognizable RICO
losses--civil RICO may only be used to recover "concrete financial
loss" in the form of an injury to property or business; personal
injury or emotional harm are not proper bases for a RICO claim. All
of the Plaintiff's claims allege constitutional violations related
to personal injury, including prolonged pre-trial detention, and
are unrelated to the kind of losses addressed by RICO. The RICO
claim is, therefore, dismissed.
Likewise, the complaint fails to state a claim under RLUIPA, Judge
McNulty finds. To state a claim under that statute, the Plaintiff
must plead facts showing that the Defendants burdened his personal
sincerely held religious beliefs and exercise thereof.
Again, the Plaintiff's lack of specific allegations undermines the
Amended Complaint, Judge McNulty notes. The Plaintiff pleads no
facts regarding his own religious beliefs or tenets, or any
interference with his form of worship. Instead he merely notes
generally that certain jail restrictions have hindered certain
forms of worship. The Plaintiff's RLUIPA claim is, therefore,
dismissed without prejudice.
The Plaintiff also asserts a speedy trial claim, and seeks jail
time credit as a remedy. Judge McNulty explains that a civil rights
claim, however, may not be used to challenge the fact or length of
a prisoner's detention. Any claim challenging the fact or length of
a prisoner's detention must be raised either via a motion in the
criminal case or a habeas corpus petition.
Finally, the Plaintiff seeks to assert a claim under the New Jersey
Civil Rights Act (NJCRA). Judge McNulty states that he will not
exercise supplemental jurisdiction over this state law claim.
Conclusion
For these reasons, the claims in the Amended Complaint against the
United States, this Court, United States Department of Justice,
United States Marshals Service, and Judge Wolfson are dismissed
with prejudice, because the Court finds that their defects would
not be remedied by further amendment.
The claims against the remaining Defendants are dismissed without
prejudice. The Plaintiff's applications for the appointment of
counsel, injunctive relief, and class certification are denied
without prejudice because no claims remain. An appropriate order
follows.
A full-text copy of the Court's Opinion dated Aug. 30, 2021, is
available at https://tinyurl.com/2tf49xzh from Leagle.com.
UNITED STATES: District of Oregon Denies Hunter's Bids for TROs
---------------------------------------------------------------
The U.S. District Court for the District of Oregon, Eugene
Division, denies the Plaintiffs' motions for temporary restraining
orders in the lawsuit captioned ELIZABETH HUNTER, et al.,
Plaintiffs v. U.S. DEPARTMENT OF EDUCATION, et al., Defendants,
Case No. 6:21-cv-00474-AA (D. Or.).
The Plaintiffs bring the putative class action against the United
States Department of Education ("Department") and Suzanne Goldberg,
Acting Assistant Secretary for Civil Rights of the Department,
challenging the Defendants' application of the religious exemption
included in Title IX of the Education Amendments of 1972 to sexual
and gender minority ("LGBTQ+") students, who attend private
religious colleges and universities that receive federal funding.
They assert claims for violations of the First and Fifth
Amendments, the Administrative Procedure Act ("APA"), and the
Religious Freedom Restoration Act ("RFRA").
Now before the Court is the Plaintiffs' motion for a temporary
restraining order ("TRO"). The matter has been fully briefed since
Aug. 17, 2021. The Plaintiffs also recently filed a motion to amend
their requested TRO. Although the Defendants' time to respond has
not yet expired, the Court has determined that both matters are
suitable for resolution now and without a hearing.
Background
The Department is the federal agency with primary responsibility
for administrative enforcement of Title IX. The Department's
regulations implementing Title IX are set forth at 34 C.F.R. Part
106. These regulations contain a provision implementing the
religious exemption, 34 C.F.R. Section 106.12, which outlines the
procedures institutions must follow to assert such an exemption.
The Plaintiffs are 40 LGBTQ+ people who applied to, attended, or
currently attend religious colleges and universities that receive
federal funding. They allege that their schools have discriminated
against them by, among other things, subjecting them to discipline
(including expulsion), rejecting their applications for admission,
and rescinding their admissions because of their sexual orientation
or gender identity. The Plaintiffs seek to represent a class of
"LGBTQ+ students who attend taxpayer-funded religious colleges and
universities that openly discriminate against them in both policy
and practice."
The Plaintiffs allege that the Defendants facilitate and encourage
their schools' discrimination by failing to enforce Title IX
against the schools based on the Defendants' application of the
religious exemption. The Plaintiffs assert that the religious
exemption, as applied to the proposed class, violates the First,
Fifth, and Fourteenth Amendments and RFRA. The Plaintiffs also
allege that the Defendants' August and November 2020 amendments to
34 C.F.R. Section 106.12(b) and (c), respectively, are arbitrary
and capricious, in violation of the APA.
In March 2021, 33 Plaintiffs filed this action. On June 7, 2021,
seven new Plaintiffs joined the original 33 in filing a First
Amended Complaint ("FAC"). Thirty-five Plaintiffs filed Title IX
complaints with the Department's Office for Civil Rights ("OCR")
between June 23, 2021, and Aug. 2, 2021.
On Aug. 5, 2021, the Plaintiffs filed a Motion for a Temporary
Restraining Order and Order to Show Cause Why Preliminary
Injunction Should Not Enter, alleging that their complaints "are in
danger of being dismissed at any moment" based on the religious
exemption and related administrative regulations. The Defendants
filed their response opposing the motion on Aug. 13, 2021. The
Plaintiffs filed their reply on Aug. 17, 2021.
On Aug. 25, 2021, the Plaintiffs filed a Motion to Amend Temporary
Restraining Order and Order to Show Cause Why Preliminary
Injunction Should Not Enter, seeking to amend their requested
preliminary injunctive relief and alleging that 11 Plaintiffs have
returned to campus or will do so soon, that hostility towards the
Plaintiffs and other LGBTQ+ students have escalated at many of the
Plaintiffs' schools, and that the Defendants are "stonewalling" the
Plaintiffs' administrative complaints.
Plaintiffs' Motion to Amend
Although the Defendants' time to respond to the Plaintiffs' Motion
to Amend has not expired, the Court grants the motion because the
Plaintiffs rely on the "legal and factual arguments contained in
Plaintiffs' Original Motion" and the Plaintiffs have not shown that
they are entitled to the additional relief sought in this motion.
Thus, District Judge Ann Aiken notes, granting the motion does not
change the outcome of the Plaintiffs' request for preliminary
injunctive relief.
The additional relief that the Plaintiffs request in their Motion
to Amend presents a textbook case of a "mandatory injunction," a
form of preliminary injunctive relief that is "particularly
disfavored," Judge Aiken holds, citing Marlyn Nutraceuticals, Inc.
v. Mucos Pharma GmbH & Co., 571 F.3d 873, 879 (9th Cir. 2009).
The Plaintiffs ask the Court to order the Defendants to (1)
investigate the schools attended by the Plaintiffs for compliance
with the sexual orientation and gender identity requirements of
Title IX and its implementing regulations, begin negotiations
seeking voluntary compliance from noncompliant schools, and, if
need be, initiate enforcement proceedings against schools that
remain noncompliant; and (2) rescind or void previously granted
Title IX religious exemption requests, many of which have been in
place for decades. These are clearly affirmative steps, aimed at
altering the existing status quo between the parties.
Upon review of the record, the Court cannot find that the
Plaintiffs have shown a likelihood of success on the merits of
their Fifth Amendment, Establishment Clause, APA, or RFRA claims,
let alone that the law and facts clearly favor their position. The
parties dispute whether the Plaintiffs have standing, whether their
claims are ripe, and whether their non-APA claims state a claim as
a matter of law.
Based on the arguments and evidence currently before the Court, the
Defendants' jurisdictional arguments are not clearly meritless and,
at best, the Plaintiffs have shown serious questions going to the
merits of their claims, Judge Aiken finds.
Plaintiffs' Initial TRO Motion
The Plaintiffs' initial motion also appears, at least in part, to
seek a mandatory injunction, in that the requested injunction would
require OCR to investigate administrative complaints it would
otherwise dismiss under the religious exemption. Even if the Court
were to consider the Plaintiffs' initial TRO request as seeking
nothing more than a stay OCR's administrative review of the
complaints, it is not clear that such an order would preserve the
status quo, Judge Aiken holds.
But even assuming, for the purposes of this motion, that this
narrow formulation of the Plaintiffs' motion seeks a prohibitory
injunction, the Plaintiffs' motion fails because they have not
shown a likelihood of irreparable harm or that the balance of the
equities or public interest favor the injunction, Judge Aiken
opines.
The Plaintiffs argue that they can satisfy the irreparable harm
requirement because their constitutional rights are clearly
threatened and are being impaired at this moment and because of the
broad range of harms they suffer at school. But the Defendants
allegedly cause this harm by failing to enforce Title IX's
protections against the Plaintiffs' schools because of the
Defendants' allegedly unconstitutional application of the religious
exemption.
Judge Aiken observes that at this stage it is far from clear that
the Defendants' conduct violates the Plaintiffs' constitutional
rights. And, more immediately, in this TRO motion, the Plaintiffs
specifically seek to prevent irreparable harm caused by the
Defendants' use of the religious exemption to dismiss plaintiffs'
Title IX administrative complaints.
Despite the Plaintiffs' assertion that the complaints are at risk
of being dismissed "any day now," there is little evidence of when
OCR might reach a determination on each Plaintiffs' complaint,
Judge Aiken says.
As of Aug. 17, 2021, the Plaintiffs received acknowledgment of 23
of their complaints and 12 complaints had not been acknowledged by
regional offices.
Although it is possible OCR might dismiss some of the complaints
under the religious exemption, the Court cannot, at this stage,
find that OCR is likely to do so, as opposed to dismissing on any
other grounds provided in the Case Processing Manual.
Finally, to prevail on their motion, the Plaintiffs must show that
the balance of the equities tip in their favor and that an
injunction is in the public interest. The Plaintiffs argue that the
equities sharply favor them because the harm they will suffer are
immense and irreparable, and a preliminary injunction crafted by
this Court is their only viable remedy.
The Defendants respond that the injunction would harm the public
interest by enjoining the long-standing religious exemption based
on speculative harm alleged by the Plaintiffs.
As explained, the Plaintiffs have not shown that dismissal of their
complaints on religious exemption grounds is imminent or that the
Defendants have violated their constitutional rights, Judge Aiken
holds. And, although an investigation of the Plaintiffs' complaints
could eventually reduce the discrimination and other harms the
Plaintiffs' and other LGBTQ+ students face at their schools, it is
not clear from the record that the Plaintiffs' requested relief
would result in immediate protection from the risk of physical,
emotional, and psychological harm they seek to prevent through this
motion, Judge Aiken points out.
On this record, the Court cannot find that the balance of the
equities and public interest favor the Plaintiffs.
Conclusion
For these reasons, the Plaintiffs' Motion to Amend their TRO is
granted but their initial and amended request for a TRO are denied.
As the Court mentioned to the parties, the hearing, which had been
scheduled as oral argument on the Plaintiff's TRO Motion, will
instead be treated as a status conference to discuss whether and
how the Plaintiffs wish to proceed on their request for a
preliminary injunction and other matters pending in the action.
A full-text copy of the Court's Opinion and Order dated Aug. 30,
2021, is available at https://tinyurl.com/5ep9cbu6 from
Leagle.com.
UNITED STATES: Mooney Can Intervene in Harris-Reese Class Suit
--------------------------------------------------------------
In the case, TIMMEKA HARRIS-REESE, Individually and as Parent and
Next Friend of Z.R., and DOUGLAS M. REESE, JR., Individually and as
Parent and Next Friend of Z.R., Plaintiffs v. UNITED STATES OF
AMERICA, Defendant, Civil Action No. TDC-19-1971 (D. Md.), Judge
Theodore D. Chuang of the U.S. District Court for the District of
Maryland granted the Motion to Intervene filed by Donald L. Mooney
Enterprises, LLC.
Background
Plaintiffs Timmeka Harris-Reese and Douglas M. Reese, Jr., filed
suit against the Defendant, the United States of America, asserting
claims under the Federal Tort Claims Act ("FTCA"), 28 U.S.C.
Sections 1346, 2671-80 (2018), based on allegedly negligent medical
treatment during surgery performed on their minor child Z.R. at the
Walter Reed National Military Medical Center ("WRNMMC") in
Bethesda, Maryland.
In the Complaint, the Plaintiffs assert negligence by the
anesthesiologists who participated in surgery on Z.R., including
Dr. Christine Gerbstadt. As relevant in the case, Dr. Gerbstadt
worked at WRNMMC pursuant to a contract between her company, The
Anesthesia Experts, Inc., and Mooney, a company which recommends
interested and qualified doctors to United States Department of
Defense facilities pursuant to a federal procurement contract.
On July 24, 2020, the Government filed a Third Parry Complaint
against Dr. Gerbstadt, The Anesthesia Experts, Inc., and Mooney,
asserting claims for contribution and indemnification, which it
later amended. On Dec. 11, 2020, Mooney filed a Motion to Dismiss
the Amended Third-Party Complaint, asserting that the Court did not
have jurisdiction over the Government's contribution and
indemnification claims because those claims stemmed from a
government contract, and the Contract Disputes Act ("CDA"), 41
U.S.C. Sections 7101-09 (2018), gives the U.S. Court of Federal
Claims exclusive jurisdiction over the resolution of any dispute
relating to a federal government contract.
In that motion, Mooney stated that if it succeeded in securing
dismissal as a Third-Party Defendant, it would nevertheless seek to
intervene in the underlying FTCA suit to protect its interests.
Before resolution of that motion, on April 16, 2021, the Government
voluntarily dismissed without prejudice its Amended Third-Party
Complaint. After filing a May 27, 2021 Notice of Intent to File a
Motion to Intervene, Mooney filed the present Motion to Intervene
on June 3, 2021.
Analysis
In its Motion, Mooney seeks to intervene as of right pursuant to
Federal Rule of Civil Procedure 24(a)(2) or, in the alternative,
for permissive intervention pursuant to Rule 24(b). Mooney argues
that intervention is necessary to allow it to protect its
interests, in particular, to counter assertions by the Plaintiffs
or the Government that any negligence was the responsibility of Dr.
Gerbstadt, and that she was not acting in the scope of federal
employment at the relevant times, as required for liability under
the FTCA. The Government argues that intervention is improper
because the Court has no jurisdiction over Mooney's claims in light
of the CDA and that the relevant factors for intervention do not
favor Mooney. The Plaintiffs take no position on the Motion.
I. Jurisdiction
As an initial matter, the Government, adopting a version of the
arguments advanced by Mooney in its Motion to Dismiss the Amended
Third-Party Complaint, contends that Mooney cannot intervene in the
action because the Court lacks jurisdiction over Mooney, its
"claims and defenses," and "procurement contract related matters"
because those issues fall within the exclusive jurisdiction of the
United States Court of Federal Claims.
The Government, however, fails to recognize that Mooney is
differently situated than it was as a Third-Party Defendant, Judge
Chuang opines. The Judge finds that Mooney has clarified that it
does not seek to intervene to assert any claims against the
Government arising from its procurement contract, nor does it seek
to have the Court adjudicate the Government's indemnification and
contribution claims originally asserted in the Amended Third-Party
Complaint, or to place at issue the scope and meaning of the terms
of the contract between Mooney and the Government.
Although the Government further argues that Mooney must "establish
an independent basis for subject matter jurisdiction" in order to
intervene, that broad principle, aimed at preventing intervenors
from destroying diversity jurisdiction or advancing state law
claims over which there is no federal jurisdiction, does not apply
where, as in the case, the Court already has federal question
jurisdiction over the case, and Mooney does not seek to advance any
new claims.
Judge Chuang thus finds that to the extent that Mooney seeks to
intervene solely to protect its interests as to the pending tort
claim, there is no jurisdictional bar to intervention.
II. Intervention
Mooney seeks intervention as of right under Federal Rule of Civil
Procedure 24(a)(2) or, alternatively, permissive intervention under
Rule 24(b).
A party may intervene as of right when it "claims an interest
relating to the property or transaction that is the subject of the
action, and is so situated that disposing of the action may as a
practical matter impair or impede the movant's ability to protect
its interest, unless existing parties adequately represent that
interest." The United States Court of Appeals for the Fourth
Circuit has interpreted this language to require a party seeking to
intervene as of right to meet four requirements: "(1) the
application to intervene must be timely; (2) the applicant must
have an interest in the subject matter of the underlying action;
(3) the denial of the motion to intervene would impair or impede
the applicant's ability to protect its interest; and (4) the
applicant's interest is not adequately represented by the existing
parties to the litigation."
There is no dispute that the second factor is satisfied. The
dispute relates to the first, third, and fourth factors. As to the
first factor, where Mooney does not seek to alter the course of
discovery, and it sought intervention soon after it was dismissed
as a Third-Party Defendant, Judge Chuang finds that the Motion to
Intervene was timely. As to the third factor, Mooney has a
protectable interest that would be impaired by the denial of
intervention. Turning to the fourth factor, in light of such
shifting alignment of interests, Mooney's interests are not
adequately represented. With all four requirements established,
Judge Chuang finds that Mooney is entitled to intervention as of
right.
Alternatively, Judge Chuang finds that Mooney has satisfied the
elements of permissive intervention. Permissive intervention is
warranted where the movant "has a claim or defense that shares with
the main action a common question of law or fact" and where
intervention will not "unduly delay or prejudice the adjudication
of the original parties' rights." Mooney's defenses against future
claims include that there was no medical negligence in the
treatment of Z.R., and that even if there were such negligence, it
was not by Dr. Gerbstadt. Where these questions, particularly
whether Dr. Gerbstadt acted negligently, are squarely at issue in
the present case, the requirement of a common question of law or
fact is satisfied. As discussed above, where Mooney does not seek
to extend discovery, intervention would not result in undue delay
or prejudice. The Judge will therefore grant permissive
intervention as well.
Because he finds that both intervention as of right and permissive
intervention are warranted, Judge Chuang will grant the Motion to
Intervene.
III. Rule 24(c)
Lastly, the Government argues that Mooney's Motion to Intervene
should be denied for failure to comply with the requirement that a
motion to intervene be "accompanied by a pleading that sets out the
claim or defense for which intervention is sought." Despite the
language of Rule 24(c), intervention may be appropriate in
circumstances when the intervenor does not seek to litigate a new
legal claim or defense.
Mooney seeks to enter the case to defend against claims that Dr.
Gerbstadt engaged in negligence, a posture that injects no new
claims into the case, and its positions are clearly established in
the briefs on the present and previous motions. JUdge Chunag
therefore concludes that Mooney's failure to file a pleading with
its Motion is a non-prejudicial technical defect that does not
warrant denial of the Motion for failure to strictly comply with
Rule 24(c).
Conclusion
For the foregoing reasons, Judge Chuang granted Mooney's Motion to
Intervene. A separate Order will be issued.
A full-text copy of the Court's Aug. 31, 2021 Memorandum Opinion is
available at https://tinyurl.com/bekx68ss from Leagle.com.
URS MIDWEST: Stipulation to Extend Class Cert Deadlines OK'd
------------------------------------------------------------
In the class action lawsuit captioned as ISRAEL RODRIGUEZ,
individually, and on behalf of other members of the general public
similarly situated, and as an aggrieved employee pursuant to the
Private Attorneys General Act (PAGA), v. URS MIDWEST, INC., a
Delaware corporation; UNITED ROAD SERVICES, INC., a Delaware
corporation; and DOES 1 through 10, inclusive, Case No.
5:20-cv-02365-JWH-SP (C.D. Cal.), the Hon. Judge John W. Holcomb
entered an order granting the joint stipulation to extend class
certification deadlines as follows:
Event Existing New
Deadline Deadline
-- Deadline to File Plaintiff's Oct. 8, 2021 Jan. 7, 2022
Motion for Class Certification
-- Defendant's Opposition to Dec. 13,2021 March 11, 2022
Class Certification
Motion
-- Plaintiff's Reply re Class Dec. 17,2021 March 25, 2022
Certification
-- Hearing on Class Nov. 12,2021 Feb. 11, 2022
Certification Motion
URS is part of the Freight Transportation Arrangement Industry.
A copy of the Court's order dated Sept. 7, 2021 is available from
PacerMonitor.com at https://bit.ly/3C7s7np at no extra charge.[CC]
VESTAR INC: Faces United Suit Over Unpaid Construction Materials
----------------------------------------------------------------
UNITED POLY CORPORATION, on behalf of itself and all others
similarly situated, Plaintiff v. VESTAR INC. and JOHN R. MAGUIRE,
and JOHN OR JANE DOES 1-10 and others similarly situated,
Defendants, Case No. 720407/2021 (N.Y. Sup. Ct., Queens Cty.,
September 10, 2021) is a class action against the Defendants for
breach of contract, account stated, quantum meruit for goods and
services supplied, sums due on a personal guarantee, and diversion
of trust funds.
The case arises from Defendant Vestar's alleged failure to pay the
Plaintiff in accordance with their construction materials contract
and the personal guarantee by Defendant Maguire, a sum of
$30,902.88, plus interest as of the dates of the respective
deliveries, and/or invoice dates.
United Poly Corporation is a supplier of construction materials,
with its principal place of business located at 48 Lehigh Avenue,
Paterson, New Jersey.
Vestar Inc. is a contractor based in Astoia, New York. [BN]
The Plaintiff is represented by:
Peter M. Kutil, Esq.
KING & KING, LLP
Sanborn Map Building
629 Fifth Avenue
Pelham, NY 10803
Telephone: (914)380-5970
E-mail: pkutil@king-king-law.com
VIEW INC: Wolf Haldenstein Reminds of October 18 Deadline
---------------------------------------------------------
Wolf Haldenstein Adler Freeman & Herz LLP on Sept. 7 disclosed that
a federal securities class action lawsuit has been filed in the
United States District Court for the Northern District of
California on behalf of those who acquired View, Inc. ("View" or
the "Company") (NASDAQ: VIEW) f/k/a CF Finance Acquisition Corp. II
("CF II") securities during the period between November 30, 2020
and August 16, 2021, inclusive (the "Class Period").
All investors who purchased View, Inc. and incurred losses are
urged to contact the firm immediately at classmember@whafh.com or
(800) 575-0735 or (212) 545-4774. You may obtain additional
information concerning the action or join the case on our website,
www.whafh.com.
If you have incurred losses in the shares of View, Inc., you may,
no later than October 18, 2021, request that the Court appoint you
lead plaintiff of the proposed class. Please contact Wolf
Haldenstein to learn more about your rights as an investor in View,
Inc.
On March 8, 2021, CF II, a special purpose acquisition company
(SPAC), and View, combined via a business combination with View as
the surviving public entity.
On August 16, 2021, after the market closed, View announced that it
"began an independent investigation concerning the adequacy of the
company's previously disclosed warranty accrual."
On this news, the Company's share price declined by $1.26 per
share, or approximately 24%, from $5.18 per share to close at $3.92
per share on August 17, 2021.
Wolf Haldenstein has extensive experience in the prosecution of
securities class actions and derivative litigation in state and
federal trial and appellate courts across the country. The firm has
attorneys in various practice areas; and offices in New York,
Chicago and San Diego. The reputation and expertise of this firm in
shareholder and other class litigation has been repeatedly
recognized by the courts, which have appointed it to major
positions in complex securities multi-district and consolidated
litigation.
If you wish to discuss this action or have any questions regarding
your rights and interests in this case, please immediately contact
Wolf Haldenstein by telephone at (800) 575-0735, via e-mail at
classmember@whafh.com, or visit our website at www.whafh.com.
Contact:
Wolf Haldenstein Adler Freeman & Herz LLP
Patrick Donovan, Esq.
Gregory Stone, Director of Case and Financial Analysis
Email: gstone@whafh.com, donovan@whafh.com or
classmember@whafh.com
Tel: (800) 575-0735 or (212) 545-4774
http://www.whafh.com[GN]
WALGREENS BOOTS: California Court Tosses Smith Discrimination Suit
------------------------------------------------------------------
In the lawsuit captioned SUSAN SMITH, Plaintiff v. WALGREENS BOOTS
ALLIANCE, INC., et al., Defendants, Case No. 20-cv-05451-CRB (N.D.
Cal.), the U.S. District Court for the Northern District of
California grants the Defendants' motions to dismiss without
prejudice.
Plaintiff Susan Smith filed a putative class action alleging that
Defendants Costco and Walgreens implemented opioid prescription
fulfillment policies that discriminate against disabled persons.
The Court dismissed the First Amended Complaint ("FAC") without
prejudice. The Plaintiff has now filed a Second Amended Complaint
("SAC"). The Defendants have moved to dismiss the SAC.
Background
Plaintiff Susan Smith brought the FAC on behalf of a putative class
of chronic pain patients, persons in palliative or nursing home
care, and individuals suffering from sickle cell anemia or
undergoing cancer treatment. The Plaintiff alleged that Defendants
Walgreens Boots Alliance, Inc. ("WBA"), WAGDCO, LLC (colletively,
"Walgreens"), Costco Wholesale Corp., and Does 1-10 maintained
prescription drug policies that discriminated against the class on
the basis of disability in violation of federal and California
law.
The Plaintiff's allegations are set against the backdrop of the
ongoing opioid and chronic pain epidemics. In connection with the
opioid epidemic, manufacturers, distributers, and dispensers in the
opioid supply chain, including the Defendants, are facing
litigation alleging that they violated state and federal laws and
that, as a result, excessive numbers of opioid pills entered the
market, contributing to the opioid crisis. At the same time,
medical professionals have increasingly recognized that many
Americans live with chronic pain that reduces their quality of life
and that, in certain instances, has been undertreated, resulting in
avoidable suffering and a chronic pain epidemic.
Against this backdrop, the Plaintiff alleged that the Defendants'
pharmacies improperly adopted Center for Disease Control ("CDC")
and American Medical Association ("AMA") public health guidelines
that were directed toward clinicians and physicians, not
pharmacists. The Defendants allegedly adopted these
guidelines--which in effect burden or prevent patients from filling
opioid prescriptions at the Defendants' pharmacies--to protect
themselves from additional opioid-related lawsuits.
The Plaintiff alleged that Costco and Walgreens implemented
distinct policies based on the public health guidelines. Costco
allegedly adopted a blanket policy that prohibited the fulfillment
of opioid prescriptions. Walgreens, on the other hand, allegedly
adopted a more multi-faceted policy that involved (i)
"blacklisting" certain persons with opioid prescriptions, (ii)
imposing "dose and duration" limits, (iii) requiring bundling with
non-opioid medications, and (iv) requiring "comprehensive medical
records."
The Plaintiff, who is disabled within the meaning of federal law,
alleged that these policies discriminated against disabled persons
by preventing them from filling medically necessary opioid
prescriptions at the Defendants' pharmacies. The Plaintiff sought
to represent a putative class of persons injured by the policies.
The Defendants moved to dismiss the FAC on the ground that the
Plaintiff failed to state a claim on which relief could be
granted.
Order Dismissing FAC
The Court granted the Defendants' motions to dismiss the FAC,
holding that the Plaintiff failed to state a claim for disability
discrimination under federal or state law. As an initial matter,
the Court held that the Plaintiff failed to establish that alleged
polices apply solely or disproportionately to disabled persons.
In this regard, the Plaintiff argued that the Defendants' alleged
policies apply to persons with chronic or acute pain and that such
persons are disabled within the meaning of federal law. The Court
rejected these arguments because the Plaintiff failed to plausibly
allege that persons with chronic or acute pain are exclusively or
overwhelmingly disabled.
Accordingly, the Court held that "the class consists of disabled
and nondisabled persons at best, and Defendants' policies apply to
both non-disabled persons and the putative class alike."
The Court held, among other things, that the Plaintiff failed to
state a claim based on a reasonable accommodation theory.
Specifically, the Plaintiff failed to establish that (1) the
alleged policies prevent disabled persons from having a "like
experience" as similarly situated non-disabled persons and (2)
"Defendants' alleged policies are unreasonable in any sense of the
word." The Court granted Walgreens' motion to dismiss.
SAC Allegations
The allegations in the SAC broadly mirror the allegations in the
FAC. The Plaintiff contends that following several lawsuits
alleging that the Defendants contributed to the opioid pandemic,
the Defendants implemented overly restrictive opioid prescription
fulfillment policies and practices that discriminate against
disabled persons.
The policies that the Plaintiff alleges Walgreens and Costco
adopted are the same or substantially the same. For both, the
Plaintiff alleges that when a patient presents an opioid
prescription that exceeds either the dose or duration threshold,
Walgreens or Costco "through its Opioid Dispensing Policy, and
related Practices, Procedures and Training, pressures and/or
instructs, expressly or implicitly, its pharmacists to not fill
such prescriptions and/or fill them at lesser amounts which do not
exceed the CDC Guideline dose and duration thresholds."
District Judge Charles R. Breyer notes that neither alleged policy
necessarily prohibits the Defendants from filling opioid
prescriptions exceeding the dose and duration thresholds. Instead,
each policy "actively discourages and burdens the process of
filling of prescriptions exceeding the Guidelines dosage or
duration thresholds, either at all or as written."
The Plaintiff alleges that the "active discouragement" manifests
itself in various ways. In each case, the Plaintiff alleges that
the pharmacist was acting pursuant to the alleged policy to
discourage her from filling her opioid prescription.
The Plaintiff alleges that the Defendants' policies have harmed her
by subjecting her to unnecessary travel and expenses, stress, and
anguish stemming from the uncertainty and difficulties that she
faces when filling her legitimate opioid prescription. She further
contends that the alleged policies disproportionately apply to
persons who are disabled under federal law. In this regard, the
Plaintiff alleges that "disabled persons are more likely to require
opioid prescriptions which exceed the dose and duration thresholds
than non-disabled persons."
Based on her allegations, the Plaintiff asserts claims under Title
III of the Americans with Disabilities Act ("ADA"), Section 504 of
the Rehabilitation Act, Section 1557 of the Affordable Care Act
("ACA"), and California's Unruh Civil Rights Act.
She brings her claims on behalf of a putative class consisting of:
All persons residing in the United States suffering from a
disabling medical condition for which they were and are
issued valid prescriptions for opioid medication by a
licensed medical provider as part of medical treatment
during the period of March 15, 2016 to the present to treat
(i) high impact chronic pain, defined as pain lasting 3 or
more months, from any cause and accompanied by at least one
major activity restriction, (ii) pain associated with a
cancer diagnosis or treatment or (iii) pain associated with
palliative or nursing home care and were unable to have, or
experienced difficulty in having, such prescriptions filled
as written, at any pharmacy owned, controlled and/or
operated by the Defendants in the United States.
Both Walgreens and Costco have moved to dismiss the SAC for failure
to state a claim. Walgreens also moves to dismiss for lack of
jurisdiction.
Discussion
Judge Breyer finds that the SAC fails to state a claim for two
independent reasons. First, the SAC fails to plausibly allege that
either Defendant maintained the alleged dose and duration policy.
Second, all of the Plaintiff's claims rest on the same
premise--that the Defendants' policies either exclusively or
disproportionately discriminate against disabled persons. But the
Plaintiff has not adequately alleged that the policies treat
disabled persons any differently than similarly situated
non-disabled persons. She, thus, fails to state claims for
disability discrimination.
Judge Breyer explains that the Plaintiff has not plausibly pled
that the alleged policies were the reason for the mistreatment she
allegedly experienced at the Defendants' pharmacies. To start, the
Plaintiff does not allege that the policies prohibit the Defendants
from filling prescriptions for opioid medications. Rather, the
Plaintiff alleges that the policies "pressure or instruct"
pharmacists to actively discourage and burden the process of
filling of prescriptions exceeding the Guideline dosage or duration
thresholds.
Yet, the Plaintiff provides no specifics as to how the alleged
policies "pressure or instruct" pharmacists in practice, Judge
Breyer notes. Nor has the Plaintiff herself viewed either of the
alleged polices or obtained any specific details about the contents
of the alleged policies.
The Court, thus, concludes that the Plaintiff has not alleged
sufficient facts to support the inference that either Defendant
maintained the alleged policies. Dismissal is warranted for this
reason alone, Judge Breyer points out.
Discriminatory Effect
Even assuming that the Plaintiff adequately alleged that the
Defendants maintained the dose and duration policies, the
Plaintiff's claims still fail because she has not adequately
alleged that the policies treat disabled persons any differently
than non-disabled persons, Judge Breyer holds. She, thus, fails to
state claims for disability discrimination.
Judge Breyer notes that the Plaintiff fails to allege sufficient
facts to support the assertion that all or most persons with
prescriptions exceeding the dose and duration thresholds are
disabled under federal law. The fundamental flaw here is the
absence of specifics: the Plaintiff provides no specific reasons
why it is plausible that persons with prescriptions exceeding the
dose and duration thresholds are necessarily disabled.
Plaintiff also argues that whether the alleged policies apply
exclusively or overwhelmingly to disabled persons is "an argument
over what the evidence ultimately might or might not prove out."
At the motion to dismiss stage, the Plaintiff must plausibly plead
facts sufficient to support a claim for relief, and based on the
SAC's allegations, the Plaintiff has failed to plausibly allege
that the Defendants' alleged policies exclusively or
disproportionately affect disabled persons, Judge Breyer opines.
Accordingly, the policies will be treated as applying to both
disabled and non-disabled persons alike.
Judge Breyer finds that the Plaintiff fails to state a claim based
on lack of meaningful access. He opines that the policies alleged
here cannot have an "exclusionary effect" on the Plaintiff and the
putative class because they apply to everyone with a prescription
exceeding the dose and duration thresholds, whether disabled or
not.
The Plaintiff also fails to show that the Defendants' policies
deprive disabled persons from having a "like experience" as
non-disabled persons, Judge Breyer holds. To the contrary, all
persons with prescriptions exceeding the dose and duration
thresholds are subject to the same treatment, whether disabled or
not. The Plaintiff also fails to allege that the requested
modifications are reasonable.
The Plaintiff seeks a modification so that "valid opioid
prescriptions for legitimate medical treatment exceeding the dosage
and/or duration thresholds in the CDC Guideline will be filled as
written." This proposed accommodation is so vague as to be
effectively unworkable, and it suffers from other deficiencies as
well, Judge Breyer holds. The Plaintiff, thus, fails to state a
claim under a reasonable accommodation theory.
Conclusion
For these reasons, the Court grants the Defendants' motions to
dismiss. Because it is not a certainty that the Plaintiff cannot
allege facts sufficient to support her claims, the Court grants the
Plaintiff leave to amend her complaint. If she chooses to do so,
the Plaintiff must file her amended complaint within 30 days of
this Order.
A full-text copy of the Court's Order dated Aug. 30, 2021, is
available at https://tinyurl.com/zpyh2s3r from Leagle.com.
WALMART INC: Sued for Selling Discontinued J&J Brand Baby Powder
----------------------------------------------------------------
Abraham Jewett, writing for Top Class Actions, reports that Lead
plaintiff Jennifer Houseman Corbett says Walmart is still selling
baby powder that J&J stopped manufacturing in May 2020 after
handing out billions of dollars over thousands of claims the
talc-based product also contains cancer-causing asbestos.
Corbett wants to represent a New York Class of consumers who
purchased J&J Baby Powder at a Walmart in New York or who had the
product delivered into the state from a Walmart online store.
Consumer Finds Discontinued Baby Powder at Walmart, Claims Lawsuit
Corbett says in her lawsuit she bought J&J Baby Powder from Walmart
with the assumption it was a safe cosmetics product and was given
no warning or disclaimer by the store that would lead her to
believe otherwise.
J&J Baby Powder contains talc, which, when mined, has been shown to
be contaminated with asbestos, a highly toxic carcinogen linked to
mesothelioma as well as a variety of other cancers affecting major
organs and parts of the human body.
The World Health Organization says there is no safe level of
exposure to asbestos, according to the class action lawsuit.
"Despite the wealth of scientific research revealing the
carcinogenic effects of asbestos and thousands of lawsuits against
the Product's manufacturer elucidating its hazards, Defendant
continued to market the Product as safe for consumer use," states
the Walmart baby powder class action.
Corbett alleges Walmart is guilty of fraud, negligent
representation, and unjust enrichment, as well as in violation of
New York General Business Law and the Magnuson Moss Warranty Act.
Plaintiff is demanding a jury trial and requesting relief in the
form of monetary, statutory, and/or punitive damages for herself
and all Class Members.
Walmart is currently facing another class action lawsuit filed by a
customer in Arkansas who alleges the company sells baby food
containing unsafe levels of toxic heavy metals. [GN]
WASHINGTON HEALTH: Lynch Seeks Certification of Class Action
------------------------------------------------------------
In the class action lawsuit captioned as DAVID LYNCH, a wartime
veteran and individual, v. WASHINGTON HEALTH CARE AUTHORITY, a
Washington governmental agency, and SUE BIRCH, both individually
and in her capacity as director of the Washington Health Care
Authority, Case No. 3:21-cv-05138-BHS (W.D. Wash.), the Plaintiff
asks the Court to certify this class action in accordance with Fed.
R. Civ. P. 23 for purposes of adjudicating non-APA claims including
liability on federal and state claims, declaratory and injunctive
relief, establishment and awarding of damages, and engaging in
class settlement negotiations.
The Plaintiff proposed two class definitions:
1. All current and past Washington State Medicaid recipients
who had their UME benefits from the U.S. Dept. of Veterans
Affairs taken or reduced because of defendants'
application of WAC 182-513-1340 or other rule or policy
that treats UME benefits as a third-party resource and
increases Medicaid participation costs pro tanto, except
if a recipient has already requested an adjudicative
proceeding challenging the rule or policy and received
relief.
2. All current and past Washington State Medicaid recipients
who had their AA benefits from the U.S. Dept. of Veterans
Affairs taken or reduced because of defendants'
application of WAC 182-513-1340 or other rule or policy
that treats AA benefits as a third-party resource and
increases Medicaid participation costs pro tanto, except
if a recipient has already requested an adjudicative
proceeding challenging the rule or policy and received
relief.
This case impacts the lives of vulnerable veterans in our society
who suffer from chronic illnesses and mental and physical
disabilities and rely on essential benefits from Medicaid and the
VA so they can live in their homes and not be forced into a nursing
home or other more expensive assisted living settings. But Medicaid
does not pay for all medical needs of veterans who qualify.
Veterans can apply to the VA for UME pension benefits to cover
unusual medical expenses not covered by Medicaid or for AA pension
benefits to pay for aid & attendance costs outside of what Medicaid
covers. These VA benefits ensure that veteran medical needs are met
for such non-Medicaid items as dental implants and weekend in-home
care attendants (when Medicaid only provides attendants during
weekdays) who perform the many complex, time-consuming, and
involved personal care tasks for the most chronically ill, disabled
veterans in our society since, in many cases, care must be provided
around the clock.
The case involves a Washington Health Care Authority (HCA) rule,
WAC 182-513-1340 (titled "Determining Excluded Income for Long-term
Care (LTC) Services") (hereafter "Third-party Resource Rule"), that
violates Medicaid and other laws by treating all Unusual Medical
Expenses (UME) and Aid & Attendance (AA) pension benefits offered
to veterans by the U.S. Dept. of Veterans Affairs (VA) for
non-Medicaid services as a third-party resource that increases a
veteran’s Medicaid participation costs pro tanto.
A copy of the Plaintiff's motion to certify class dated Sept. 9,
2021 is available from PacerMonitor.com at https://bit.ly/2YP99DD
at no extra charge.[CC]
The Attorneys for Plaintiff U.S. Veteran David Lynch and a Putative
Class of Veterans Receiving Unusual Medical Expense and Aid and
Attendance Benefits through the U.S. Department of Veterans Affairs
are:
Gregory A. McBroom, Esq.
Matthew J. Smith, Esq.
SMITH MCBROOM, PLLC
WESTSIDE INVESTMENTS: Pastore Sues Over Unsolicited Messages Ads
----------------------------------------------------------------
ERICA PASTORE, individually and on behalf of all others similarly
situated, Plaintiff v. WESTSIDE INVESTMENTS, INC. d/b/a MARINA DEL
REY TOYOTA, a California corporation, Defendant, Case No.
2:21-cv-07111 (C.D. Cal., September 2, 2021) is a class action
complaint brought against the Defendant for its alleged violations
of the Telephone Consumer Protection Act.
According to the complaint, the Defendant sent a prerecorded voice
message to the Plaintiff's cellular telephone number ending in 9581
on or about April 19, 2021. The Defendant's prerecorded voice
purportedly constituted telemarketing/advertising because they
promote its business, goods and services by offering her a gift
card if she performed her next automobile service with the
Defendant. The Plaintiff never provided the Defendant with her
express written consent to be contacted by prerecorded message, the
suit says.
As a result of the Defendant's alleged unsolicited prerecorded
messages have caused the Plaintiff and other similarly situated
individuals additional harm in the form of invasion of privacy,
aggravation, annoyance, intrusion on seclusion, trespass, and
conversion, as well as inconvenienced and disruption to their daily
life. Thus, on behalf of herself and other similarly situated
individuals, the Plaintiff brings this complaint seeking actual and
statutory damages, an injunction requiring the Defendant to cease
all unsolicited call activity and prohibiting the Defendant from
using prerecorded messages without obtaining consent to the called
party.
Westside Investments, Inc. d/b/a Marina Del Rey Toyota provides
automobile services. [BN]
The Plaintiff is represented by:
William Litvak, Esq.
DAPEER ROSENBLIT LITVAK, LLP
11500 W. Olympic Blvd., Suite 550
Los Angeles, CA 90064
Tel: (310) 477-5575
E-mail: wlitvak@drllaw.com
- and –
Michael Eisenband, Esq.
EISENBAND LAW, P.A.
515 E. Las Olas Blvd., Suite 120
Ft. Lauderdale, FL 33301
Tel: (954) 533-4092
E-mail: MEisenband@Eisenbandlaw.com
WSGP GAS PRODUCING: Hoog Suit Transferred to E.D. Oklahoma
----------------------------------------------------------
The case styled as Kevin Hoog, on behalf of himself and all others
similarly situated v. WSGP Gas Producing, LLC, Trinity Operating
(USG), LLC, including affiliated predecessors and affiliated
successors, Defendants & Movants, Case No. 1:21-mc-00756, was
transferred from the U.S. District Court for the Western District
of Texas to the U.S. District Court for the Eastern District of
Oklahoma on Sept. 1, 2021.
The District Court Clerk assigned Case No. 6:21-cv-00268-RAW to the
proceeding.
The nature of suit is stated as Other Contract for Breach of
Contract.
WSGP Gas Producing LLC explores and develops oil and gas
properties.[BN]
The Defendants & Movants are represented by:
Michael D. Morfey, Esq.
HUNTON ANDREWS KURTH, LLP (Houston)
600 Travis St, Ste 4200
Houston, TX 77002
Phone: (713) 220-4163
Email: michaelmorfey@huntonak.com
- and -
Michele R. Blythe, Esq.
NEXTERA ENERGY RESOURCES, LLC
700 Universe Blvd
June Beach, FL 33408-2683
Phone: (561) 691-7207
Fax: (561) 691-7103
Email: Michele.Blythe@nexteraenergy.com
YALLA GROUP: Frank R. Cruz Reminds of October 12 Deadline
---------------------------------------------------------
The Law Offices of Frank R. Cruz on Sept. 7 disclosed that a class
action lawsuit has been filed on behalf of persons and entities
that purchased or otherwise acquired Yalla Group Limited ("Yalla"
or the "Company") (NYSE: YALA) American Depository Shares ("ADSs"
or "shares") between September 30, 2020 and August 9, 2021,
inclusive (the "Class Period"). Yalla investors have until October
12, 2021 to file a lead plaintiff motion.
On May 19, 2021, Swan Street Research published a report alleging,
among other things, that Yalla inflated its financial metrics,
including its user data and its revenue, and characterized Yalla's
financial statements as "not credible."
On this news, the Company's share price fell $1.31, or 7%, to close
at $17.01 per share on May 19, 2021.
Then, on May 20, 2021, The Bear Cave published a report and Gotham
City Research tweeted that it was shorting Yalla.
On this news, the Company's share price fell 6% to close at $15.96
per share on May 20, 2021.
Then, on August 9, 2021, after the market closed, Yalla announced
its second quarter 2021 financial results, reporting revenue of
$66.62 million, which fell below analysts' expectations.
On this news, the Company's share price fell approximately 19% to
close at $10.99 per share on August 10, 2021.
The complaint filed in this class action alleges that throughout
the Class Period, Defendants did: (1) deceive the investing public,
including Plaintiff and the other members of the Class, as alleged
herein; (2) artificially inflate and maintain the market price of
Yalla ADSs; and (3) cause Plaintiff and the other members of the
Class to purchase, or otherwise acquire, Yalla ADSs and options at
artificially inflated prices and (4) as a result, Defendants'
positive statements about the Company's business, operations, and
prospects were materially misleading and/or lacked a reasonable
basis at all relevant times.
If you purchased Yalla ADSs during the Class Period, you may move
the Court no later than October 12, 2021 to ask the Court to
appoint you as lead plaintiff. To be a member of the Class 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.
If you purchased Yalla ADSs, have information or would like to
learn more about these claims, or have any questions concerning
this announcement or your rights or interests with respect to these
matters, please contact Frank R. Cruz, of The Law Offices of Frank
R. Cruz, 1999 Avenue of the Stars, Suite 1100, Los Angeles,
California 90067 at 310-914-5007, by email to
info@frankcruzlaw.com, or visit our website at
www.frankcruzlaw.com. If you inquire by email please include your
mailing address, telephone number, and number of shares purchased.
This press release may be considered Attorney Advertising in some
jurisdictions under the applicable law and ethical rules.
Contacts:
The Law Offices of Frank R. Cruz, Los Angeles
Frank R. Cruz, 310-914-5007
fcruz@frankcruzlaw.com
www.frankcruzlaw.com [GN]
ZYMERGEN INC: Shankar Putative Securities Class Suit Underway
-------------------------------------------------------------
Zymergen 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 putative securities class action suit entitled, Shankar v.
Zymergen Inc. et al., Case No. 3:21-cv-06028-JCS.
On August 4, 2021, the Company, certain of the Company's current
and former officers and directors, and the underwriters of the
Company's initial public offering (IPO) were named as defendants in
a putative securities class action filed on behalf of purchasers of
the Company's common stock pursuant to or traceable to the
registration statement for its IPO.
The action is pending in the United States District Court for the
Northern District of California and is captioned Shankar v.
Zymergen Inc. et al., Case No. 3:21-cv-06028-JCS.
The action alleges violations of Sections 11 and 15 of the
Securities Act of 1933 in connection with the Company's IPO and
seeks damages in an unspecified amount, attorneys' fees, and other
remedies.
The Company intends to defend vigorously against such allegations.
Zymergen Inc. partners with Nature to design, develop and
commercialize bio-based breakthrough products that can deliver
value to customers in a broad range of industries. The company is
based in Emeryville, California.
[*] Osler Hoskin Attorneys Discuss Class Action Waivers
-------------------------------------------------------
Sonia Bjorkquist, Esq., and Stephen Armstrong, Esq., of Osler,
Hoskin & Harcourt LLP, in an article for Mondaq, report that a
class action waiver is a contractual term -- usually found in a
contract between an individual and a company -- that stipulates
that the individual will not participate in a class proceeding
against the company and instead commits to resolving disputes on an
individual basis. Such terms mitigate a company's risk of exposure
to class proceedings, which can be very costly to defend, even when
a claim lacks merit.
As we have previously stated, the enforcement of a class action
waiver is essentially a matter of contract. However, the
enforcement of contracts may be affected by various statutes and
common law doctrines. For disputes arising out of "consumer
agreements," the Ontario Consumer Protection Act, 2002, section
8(1), renders class action waivers unenforceable. Outside of the
consumer context, however, the enforceability of class action
waivers at common law is an unsettled matter of some controversy.
Recent court treatment of class action waivers
We previously observed that the Supreme Court of Canada sidestepped
this issue in Seidel v. TELUS Communications Inc. The Court held
that provincial consumer protection legislation rendered a
pre-dispute arbitration clause void. The accompanying class action
waiver was also invalidated because the contract was drafted so as
to make the class action waiver dependent on the arbitration
provision.1
Recently, the B.C. Court of Appeal revisited this issue in Pearce
v. 4 Pillars Consulting Group Inc. The Court concluded that a class
action waiver between debt advisors and their clients was
unenforceable due to the unconscionability doctrine and the public
policy doctrine.2
In its unconscionability analysis, the Court found an inequality of
bargaining power on the basis that the clients of the debt advisors
were financially distressed and the agreement containing the class
action waiver was a standard form contract that offered no
opportunity for negotiation.3 The plain-language drafting of the
waiver and a common practice of explaining the contract to clients
before signing was not sufficient to overcome this imbalance.4
Rounding out the inquiry, the Court found that the substance of the
class action waiver was improvident because it denied the class
members access to justice, as alternative procedures would be
prohibitively costly.5
The Court continued, in obiter, to explain how, in its view, class
action waivers are also contrary to the public policy doctrine. It
has long been held that an agreement to oust the jurisdiction of
the superior courts is contrary to public policy and is therefore
void. In the Court's view, class action waivers contravene this
policy — despite the fact that they do not actually oust court
jurisdiction -- because they have the practical effect of
precluding access to justice.6 The Court effectively recast the
policy against ousters of court jurisdiction into a free-standing
policy against agreements that inhibit access to justice.
Even more recently, in a decision certifying a class proceeding,
the Ontario Superior Court of Justice observed that the class
members "have reasonably strong arguments" that a class action
waiver is unenforceable due to the unconscionability doctrine and
the public policy doctrine.7 The Court cited, neutrally, to the
B.C. Court of Appeal's decision in Pearce, discussed above.
However, the Court declined to rule definitively on the issue at
the certification stage, as it felt the issue had to be determined
at trial. The decision was covered more fully in a previous blog
post, "The ride isn't over: Uber v. Heller certified as a class
action."
Takeaway
Thus, despite these recent developments, there remains significant
uncertainty concerning the enforceability of class action waivers
at common law. The B.C. Court of Appeal relied on the
unconscionability doctrine for its decision, which is a fact- and
context-specific doctrine. Its comments about the public policy
doctrine were non-binding obiter dicta. The ambiguous status of
class action waivers is likely to persist until Canada's highest
court weighs in on the issue.
Footnotes
1. Seidel v. TELUS Communications Inc., 2011 SCC 15, at paras
44-45.
2. Pearce v. 4 Pillars Consulting Group Inc., 2021 BCCA 198, at
paras 247, 279.
3. Pearce v. 4 Pillars Consulting Group Inc., 2021 BCCA 198, at
paras 225-226 and 236.
4. Pearce v. 4 Pillars Consulting Group Inc., 2021 BCCA 198, at
paras 227-235.
5. Pearce v. 4 Pillars Consulting Group Inc., 2021 BCCA 198, at
paras 244 and 246.
6. Pearce v. 4 Pillars Consulting Group Inc., 2021 BCCA 198, at
para 248.
7. Heller v. Uber Technologies Inc., 2021 ONSC 5518, at para
128.[GN]
Asbestos Litigation
ASBESTOS UPDATE: GMS Inc.'s Subsidiaries Faces Exposure Claims
--------------------------------------------------------------
GMS Inc.'s subsidiaries have been the subject of claims related to
alleged exposure to asbestos-containing products they distributed
prior to 1979, according to the Company's Form 10-Q filing with the
U.S. Securities and Exchange Commission.
The Company states, "As a distributor of building materials, we
face an inherent risk of exposure to product liability claims in
the event that the use of the products we have distributed in the
past or may in the future distribute is alleged to have resulted in
economic loss, personal injury or property damage or violated
environmental, health or safety or other laws. Such product
liability claims have included and may in the future include
allegations of defects in manufacturing, defects in design, a
failure to warn of dangers inherent in the product, negligence,
strict liability or a breach of warranties. Since 2002 and as of
July 31, 2021, approximately 1,025 asbestos-related personal injury
lawsuits have been filed and we vigorously defend against them. Of
these, 980 have been dismissed without any payment by us, 35 are
pending and only 10 have been settled, which settlements have not
materially impacted our financial condition or operating results."
A full-text copy of the Form 10-Q is available at
https://bit.ly/395XNgB
*********
S U B S C R I P T I O N I N F O R M A T I O N
Class Action Reporter is a daily newsletter, co-published by
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USA, and Beard Group, Inc., Washington, D.C., USA. Rousel Elaine T.
Fernandez, Joy A. Agravante, Psyche A. Castillon, Julie Anne L.
Toledo, Christopher G. Patalinghug, and Peter A. Chapman, Editors.
Copyright 2021. All rights reserved. ISSN 1525-2272.
This material is copyrighted and any commercial use, resale or
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Information contained herein is obtained from sources believed to
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