/raid1/www/Hosts/bankrupt/CAR_Public/211004.mbx
C L A S S A C T I O N R E P O R T E R
Monday, October 4, 2021, Vol. 23, No. 192
Headlines
3M COMPANY: AFFF Products Contain Toxic Chemicals, Alvarado Claims
3M COMPANY: Deck Suit Alleges Complications From AFFF Products
3M COMPANY: Exposed Military Men to Toxic Chemicals, Walton Says
3M COMPANY: Faces Mills Suit Over Harmful Effects of AFFF Products
3M COMPANY: Haldeman Sues Over Injury Sustained From AFFF Products
3M COMPANY: Manis Suit Alleges Complications From AFFF Products
3M COMPANY: McDaniel Alleges Toxic Exposure From AFFF Products
ABIOMED INC: New York Court Dismisses Villare Securities Class Suit
ACE PARKING: Mkoma Wage-and-Hour Suit Removed to S.D. California
ADECCO INC: Risher Granted Leave to File Fourth Amended TCPA Suit
ANASTASIA BEVERLY: Mason Files ADA Suit in C.D. California
ANDEAVOR LOGISTICS: 8th Cir. Reverses Dismissal of Chase Suit
AT&T MOBILITY: Vianu Class Cert. Filing Due Feb. 23, 2022
AXIOM MATERIALS: Denial of Arbitration in Arcos Suit Affirmed
BANK OF NEW YORK: Averts Crypto Fraud Conspiracy Class Action
BECTON DICKINSON: Discusses Dismissal of Securities Class Suit
BLACK HORSE: Court Ruling in BIPA Class Action Lawsuit Discussed
BLACK HORSE: Ill. App. Answers Certified Question in Tims Suit
BOSTON BEER: Kessler Topaz Reminds of November 15 Deadline
BOSTON BEER: Kirby McInerney Reminds of November 15 Deadline
BOSTON PRIVATE: Faces Securities Suit Over SVB Merger Deal
BRAVO ARKOMA: Court Enters Amended Specialized Scheduling Order
BUFFETT SENIOR: Ziegler Seeks Final OK of Class Action Settlement
CATHAY PACIFIC: WeirFoulds LLP Attorneys Discuss Court Ruling
Cervantes Files FLSA Suit in S.D. New York
CHIPOTLE MEXICAN: Pramme Sues Over Deceptive Representations
COCA-COLA: Court Ruling on Suit Over Mislabeled Products Discussed
COOK COUNTY, IL: Court Denies Bid to Certify Class in Simpson Suit
CORECIVIC OF TENNESSEE: Falline Files FLSA Suit in D. Nevada
COSTA DEL MAR: Final Approval of Settlement in Smith Partly OK'd
DEUTSCHE BANK: Motion to Dismiss in Spoofing Class Action Denied
DRIVELINE RETAIL: Wins Summary Judgment Bid vs McGlenn
EQT CORP: Mineral Rights Owners Can't File Lawsuit, Court Rules
EVOLUS INC: Rosen Law Appointed as Lead Counsel in Securities Suit
FEDERATION INTERNATIONALE: Shields Cert. Reply Extended to Oct. 5
FPC ALDERSON: Barker Suit Seeks to Certify Class of Inmates
FPC ALDERSON: Belcher Suit Seeks to Certify Class of Inmates
FPC ALDERSON: Moore Suit Seeks to Certify Class of Inmates
FPC ALDERSON: Sysio Suit Seeks to Certify Class of Inmates
FRESH VENTURE: EEOC Sues Over Sexual Harassment in the Workplace
FRONTIER AIRLINES: Colorado Court Tosses Consolidated Class Suit
FS PALO ALTO EMPLOYMENT: Johnson Seeks Unpaid Wages, Reimbursements
GENERAC HOLDINGS: Kessler Topaz Reminds of October 19 Deadline
GENERAC HOLDINGS: Pomerantz Law Firm Reminds of Oct. 19 Deadline
GENERAC POWER: Wins Summary Judgment Bid in Craftwood TCPA Suit
GENERAL MOTORS: Court Dismisses Sproles Suit With Leave to Amend
GERBER PRODUCTS: Baby Food Suit Moved From New Jersey to Virginia
GERBER PRODUCTS: Dempsey Hits Nondisclosure of Toxins in Baby Food
GIGACQUISITIONS2 LLC: Laidlaw Sues Over Uphealth/Cloudbreak Mergers
HARVEST HOSPITALITIES: Duke Granted Leave to Narrow Wage Complaint
HDI GLOBAL: Florida Court Dismisses Atma Beauty Insurance Suit
HETERO USA: Court Rules on Bids to Seal in Bystolic Antitrust Suit
HF FOODS: California Court Tosses Mendoza Class Suit With Prejudice
HORIZON HEALTHCARE: Champey ERISA Suit Removed to D. New Jersey
IEC CORP: FCC's Bid to Compel Arbitration in Britt Suit Granted
INTER-CON SECURITY: Wins Bid to Dismiss Beltran's Labor Claims
JOHN C. HEATH: Doyle Files TCPA Suit in D. New Jersey
JOSEPH'S/CANDLER: Betz Sues Over Failure to Protect PII and PHI
JUICIFY INC: Shanahan TCPA Suit Moved From Nebraska to Illinois
JUUL LABS: Baldwinsville Sues Over E-Cigarette Campaign to Youth
JUUL LABS: Causes Youth E-Cigarette Crisis, Tuscumbia City Says
JUUL LABS: E-Cigarette Ads Target Youth, Montgomery Suit Claims
JUUL LABS: E-Cigarette Ads Target Youth, Williams Bay Suit Claims
JUUL LABS: Elizabethton Sues Over E-Cigarette Campaign to Youth
JUUL LABS: Faces Lakeview School Suit Over Youth E-Cigarette Crisis
JUUL LABS: Faces Plain Local Suit Over Youth E-Cigarette Crisis
JUUL LABS: Faces Williamston Suit Over Youth Health Crisis in Mich.
JUUL LABS: Gratiot-Isabella Sues Over Youth's E-Cigarette Crisis
JUUL LABS: Kenosha School Sues Over E-Cigarette Campaign to Youth
JUUL LABS: Meridian Sues Over Deceptive E-Cigarette Ads to Youth
JUUL LABS: Muscle Shoals City Sues Over Youth Health Crisis in Ala.
JUUL LABS: Obion County Sues Over Youth's E-Cigarette Addiction
JUUL LABS: Sanborn Sues Over Deceptive E-Cigarette Ads to Youth
JUUL LABS: School District Sues Over Youth Health Crisis in Wis.
JUUL LABS: Selma City Sues Over Youth's E-Cigarette Addiction
JUUL LABS: Township High School Sues Over Youth Health Crisis
JUUL LABS: Triggers Youth E-Cigarette Crisis, Sheffield Suit Claims
JUUL LABS: Tuscaloosa City Sues Over Youth E-Cigarette Epidemic
KHOSROW SADEGHIAN: Court Grants in Part Marquis' Bids for Sanctions
KING OF JAMAICA AUTO: Devora Sues to Recover Unpaid Overtime Wages
KONINKLIJKE PHILIPS: Brengle Files Suit in W.D. Pennsylvania
KONINKLIJKE PHILIPS: Drake Files Suit in S.D. Georgia
KONINKLIJKE PHILIPS: Mercure Files Suit in N.D. Georgia
KONINKLIJKE PHILIPS: Powell Files Suit in M.D. Georgia
LEESBURG, AL: Wins Bid for Summary Judgment in Sutton Class Suit
LIVE NATION: Judge Grants Request to Arbitrate Class Action
MARTIN RESOURCE: Loses Bid for Class Action Liability Coverage
MEDALLIA INC: Faces Shareholder Class Action in New York
MIDLAND CREDIT: Order Imposing Sanctions in Miller Suit Vacated
NATIONAL STUDENT: Final OK of Robinson's Class Settlement Affirmed
NEVADA: Supreme Orders on Payne's Writ Petition Affirmed in Part
NEW YORK TIMES: Class Settlement in Moses Suit Wins Final Approval
NEWCOMB OIL: Southard FLSA Suit Removed to W.D. Kentucky
OHIO: 6th Cir. Affirms Dismissal of Palladeno v. Prison Officials
OLD DOMINION: Bowens NYLL Suit Removed to S.D. New York
OSHKOSH CORP: Jackson Lewis Attorneys Discuss Court Ruling
OVERSTOCK.COM INC: Averts Securities Class Action Lawsuit
PENNYMAC FINANCIAL: Heidrich Allowed to File 2nd Amended Complaint
RED ROBIN: Court Denies Geraci's Bid to Intervene in Mina TCPA Suit
RUTHERFORD COUNTY, TN: October 29 Claims Filing Deadline Set
RYDER INTEGRATED: Keefer FCRA Suit Removed to N.D. California
S.C. JOHNSON: Settles Mislabeling Class Action for $2.25 Million
SEDGWICK CLAIMS: Smith FLSA Suit Removed to M.D. Florida
SESEN BIO: Wolf Haldenstein Reminds of October 18 Deadline
SMITH & NEPHEW: Surber Product Liability Suit Goes to N.D. Cal.
SNAP FINANCE: District of Utah Certifies Class in Wesley TCPA Suit
SOUTH CAROLINA: Brown Plaintiffs to Be Separated for Initial Review
STATE FARM: Plaintiffs Ask Judge to Reconsider Class Cert. Denial
STEVE KEMPER: Murray Suit Remanded to Jefferson County Cir. Court
SYRACUSE UNIVERSITY: Miller Contract Suit Removed to N.D.N.Y.
TABLEAU SOFTWARE: $1.06M Attys.' Fees & Costs Awarded in Scheufele
TABLEAU SOFTWARE: Final Judgment Entered in Scheufele Class Suit
TD ASSET: Industry Critic Can't Provide Evidence in Class Action
TEXAS: Bids for Leave to Appeal in Forma Pauperis in Brandt Denied
TEXTRON INC: Dismissal of IWA Securities Suit Affirmed in Part
TIFFANY AND COMPANY: Bermejo Labor Suit Goes to C.D. California
TOYOTA MOTOR: Faces Suit Over Faulty Highlander Hybrid Fuel Tanks
TRIPP SCOTT: Court Denies Bid to Dismiss Kantor's Class Complaint
TRULIEVE INC: Settles Class Action Over Illegal Background Check
U.S. IMMIGRATION: Final Judgment Entry in Ramirez Suit Partly OK'd
UNITED STATES: Emergency Bid for TRO in Oldbaker v. ICDC Denied
UNITED STATES: Faces Class Suit Over Army's Housing Entitlements
UNITEDHEALTHCARE INSURANCE: Rule 706 Expert Named in Caldwell Suit
UNITEDHEALTHCARE INSURANCE: Vigdor Suit Removed to W.D.N.C.
VEGASPACKAGE.COM INC: Court Decertifies Class in Fisher TCPA Suit
VOLTAGE PICTURES: Bereskin & Parr Attorneys Discuss Court Ruling
VOLTAGE PICTURES: Discusses Ruling in Copyright Infringement Suit
WATERDROP INC: Kirby McInerney Reminds of November 15 Deadline
WATERDROP INC: Wolf Haldenstein Reminds of November 15 Deadline
WESCO INSURANCE: New York Court Stays Proceedings in Daij Suit
WORTH COUNTY, GA: Class Deal in Sauls v. Sheriff Wins Prelim. Nod
XTO ENERGY: Ct. Enters Amended Case Management Order in Salvatora
[*] Winston & Strawn Attorneys Discuss Arbitration, Waivers
*********
3M COMPANY: AFFF Products Contain Toxic Chemicals, Alvarado Claims
------------------------------------------------------------------
ALEX ALVARADO, individually and on behalf of all others similarly
situated, Plaintiff v. 3M COMPANY fka MINNESOTA MINING &
MANUFACTURING CO.; NATIONAL FOAM, INC.; KIDDE FIRE FIGHTING, INC;
KIDDE PLC INC.; KIDDE-FENWALL, INC; TYCO FIRE PRODUCTS, LP; BUCKEYE
FIRE EQUIPMENT CO.; CHEMGUARD, INC.; DYNAX CORPORATION; UTC FIRE &
SECURITYAMERICA'S, INC; E.I. DUPONT DE NEMOURS & CO.; DUPONT DE
NEMOURS, INC.; THE CHEMOURS CO.; THE CHEMOURS COMPANY FC, LLC;
CORTEVA, INC.; and DOES 1 to 100, inclusive, Defendants, Case No.
2:21-cv-03152-RMG (D.S.C., September 28, 2021) is a class action
against the Defendants for negligence, strict liability, defective
design, failure to warn, fraudulent concealment, medical monitoring
trust, and violations of the Uniform Voidable Transactions Act and
California Unfair Competition Law.
According to the complaint, the Defendants have failed to use
reasonable and appropriate care in the design, manufacture,
labeling, warning, instruction, training, selling, marketing, and
distribution of aqueous film forming foam (AFFF) products
containing synthetic, toxic per- and polyfluoroalkyl substances
collectively known as PFAS. The Defendants' AFFF products are
dangerous to human health because PFAS are highly toxic and
carcinogenic chemicals and can accumulate in the blood and body of
exposed individuals. The Defendants have also failed to warn public
entities and military members, including the Plaintiff, who they
knew would foreseeably come into contact with their AFFF products.
The Plaintiff used the Defendants' PFAS-containing AFFF products in
their intended manner, without significant change in the products'
condition due to inadequate warning about the products' danger. The
Plaintiff relied on the Defendants' instructions as to the proper
handling of the products, says the suit.
As a result of the Defendants' alleged omissions and misconduct,
the Plaintiff was diagnosed with ulcerative colitis.
3M Company, f/k/a Minnesota Mining and Manufacturing Co., is a
multinational conglomerate corporation and designer, marketer,
developer, manufacturer, distributor of firefighting equipment,
including those with AFFF. It is located at 3M Center, St. Paul.
Minnesota.
National Foam, Inc. is a manufacturer of foam concentrate, foam
proportioning systems, fixed and portable foam firefighting
equipment, with principal place of business located at 350 East
Union Street, West Chester, Pennsylvania.
Kidde Fire Fighting, Inc. is a manufacturer of fire safety products
based in Mebane, North Carolina.
Kidde PLC is a manufacturer of fire safety products based in
Mebane, North Carolina.
Kidde-Fenwal, Inc. is a manufacturer of fire protection systems
based in Ashland, Massachusetts.
Tyco Fire Products L.P., successor-in-interest to The Ansul
Company, is a manufacturer of water-based fire suppression system
components and ancillary building construction products, including
Ansul brand of AFFF, headquartered at One Stanton Street,
Marinette, Wisconsin.
Buckeye Fire Equipment Co. is a manufacturer of line of handheld
and wheeled fire extinguishers, suppressing foam concentrates &
hardware, and kitchen suppression systems, with principal place of
business located at 110 Kings Road, Mountain, North Carolina.
Chemguard, Inc. is a manufacturer of fire suppression and specialty
chemicals, including AFFF, with principal place of business located
at One Stanton Street, Marinette, Wisconsin.
Dynax Corporation is a company that specializes in the production
of fluorochemicals based in Pound Ridge, New York.
UTC Fire & Security America's Inc. is a manufacturer of security
and fire control systems based in Bradenton, Florida.
E.I Dupont De Nemours & Co. is a provider of agriculture and
specialty products with principal place of business at 1007 Market
Street, Wilmington, Delaware.
Du Pont De Nemours Inc., f/k/a DowDuPont Inc., is a chemical
company based in Wilmington, Delaware.
The Chemours Company is a manufacturer of agricultural chemicals
with principal place of business at 1007 Market Street, Wilmington,
Delaware.
Chemours Company FC, LLC is a manufacturer of titanium
technologies, fluoroproducts and chemical solutions based in
Wilmington, Delaware.
Corteva, Inc. is an American agricultural chemical and seed company
based in Wilmington, Delaware. [BN]
The Plaintiff is represented by:
Jeremy C. Shafer, Esq.
BANNER LEGAL
445 Marine View Avenue, Suite 100
Del Mar, CA 92014
Telephone: (760) 479-5404
E-mail: jshafer@bannerlegal.com
- and –
S. James Boumil, Esq.
BOUMIL LAW OFFICES
120 Fairmount Street
Lowell, MA, 01852
Telephone: (978) 458-0507
E-mail: sjboumil@boumil-law.com
- and –
Konstantine Kyros, Esq.
KYROS LAW
17 Miles Rd.
Hingham, MA 02043
Telephone: (800) 934-2921
E-mail: kon@kyroslaw.com
3M COMPANY: Deck Suit Alleges Complications From AFFF Products
--------------------------------------------------------------
GARY DECK, individually and on behalf of all others similarly
situated, Plaintiff v. 3M COMPANY f/k/a Minnesota Mining and
Manufacturing Company; ACG CHEMICALS AMERICAS INC.; AMEREX
CORPORATION; ARCHROMA U.S. INC.; ARKEMA, INC.; BUCKEYE FIRE
EQUIPMENT COMPANY; CARRIER GLOBAL CORPORATION; CHEMDESIGN PRODUCTS,
INC.; CHEMGUARD, INC.; CHEMICALS, INC.; CHEMOURS COMPANY FC, LLC;
CHUBB FIRE, LTD; CLARIANT CORP.; CORTEVA, INC.; DEEPWATER
CHEMICALS, INC.; DU PONT DE NEMOURS INC. f/k/a DOWDUPONT INC.;
DYNAX CORPORATION; E.I. DU PONT DE NEMOURS AND COMPANY;
KIDDE-FENWAL, INC.; KIDDE PLC; NATION FORD CHEMICAL COMPANY;
NATIONAL FOAM, INC.; THE CHEMOURS COMPANY; TYCO FIRE PRODUCTS LP,
as successor-in-interest to The Ansul Company; UNITED TECHNOLOGIES
CORPORATION; UTC FIRE & SECURITY AMERICAS CORPORATION, INC. f/k/a
GE Interlogix, Inc., Defendants, Case No. 2:21-cv-03160-RMG
(D.S.C., September 28, 2021) is a class action against the
Defendants for negligence, battery, inadequate warning, design
defect, strict liability, fraudulent concealment, breach of express
and implied warranties, and wantonness.
According to the complaint, the Defendants have failed to use
reasonable and appropriate care in the design, manufacture,
labeling, warning, instruction, training, selling, marketing, and
distribution of aqueous film forming foam (AFFF) products
containing synthetic, toxic per- and polyfluoroalkyl substances
collectively known as PFAS. The Defendants' AFFF products are
dangerous to human health because PFAS are highly toxic and
carcinogenic chemicals and can accumulate in the blood and body of
exposed individuals. The Defendants have also failed to warn public
entities and civilian firefighters, including the Plaintiff, who
they knew would foreseeably come into contact with their AFFF
products. The Plaintiff used the Defendants' PFAS-containing AFFF
products in their intended manner, without significant change in
the products' condition due to inadequate warning about the
products' danger. The Plaintiff relied on the Defendants'
instructions as to the proper handling of the products, says the
suit.
As a result of the Defendants' alleged omissions and misconduct,
the Plaintiff was diagnosed with prostate cancer.
3M Company, f/k/a Minnesota Mining and Manufacturing Co., is a
multinational conglomerate corporation and designer, marketer,
developer, manufacturer, distributor of firefighting equipment,
including those with AFFF. It is located at 3M Center, St. Paul.
Minnesota.
ACG Chemicals Americas Inc. is a manufacturer of chemical products
based in Exton, Pennsylvania.
Amerex Corporation is a manufacturer of firefighting products based
in Trussville, Alabama.
Archroma U.S. Inc. is a global specialty chemicals company
headquartered in Charlotte, North Carolina.
Arkema, Inc. is a diversified chemicals manufacturer in North
America, based in King of Prussia, Pennsylvania.
Buckeye Fire Equipment Co. is a manufacturer of line of handheld
and wheeled fire extinguishers, suppressing foam concentrates &
hardware, and kitchen suppression systems, with principal place of
business located at 110 Kings Road, Mountain, North Carolina.
Carrier Global Corporation is a heating, ventilation, and air
conditioning company based in Palm Beach Gardens, Florida.
Chemdesign Products, Inc. is a chemical toll manufacturing company
based in Marinette, Wisconsin.
Chemguard, Inc. is a manufacturer of fire suppression and specialty
chemicals, including AFFF, with principal place of business located
at One Stanton Street, Marinette, Wisconsin.
Chemicals, Inc. is a chemical manufacturing company based in
Baytown, Texas.
Chemours Company FC, LLC is a manufacturer of titanium
technologies, fluoroproducts and chemical solutions based in
Wilmington, Delaware.
Chubb Fire, Ltd is a provider of security and fire protection
systems based in United Kingdom.
Clariant Corp. is a specialty chemical company based in Charlotte,
North Carolina.
Corteva, Inc. is an American agricultural chemical and seed company
based in Wilmington, Delaware.
Deepwater Chemicals, Inc. is a producer of organic and inorganic
iodine derivatives based in Woodward, Oklahoma.
Du Pont De Nemours Inc., f/k/a DowDuPont Inc., is a chemical
company based in Wilmington, Delaware.
Dynax Corporation is a company that specializes in the production
of fluorochemicals based in Pound Ridge, New York.
E.I Dupont De Nemours & Co. is a provider of agriculture and
specialty products with principal place of business at 1007 Market
Street, Wilmington, Delaware.
Kidde-Fenwal, Inc. is a manufacturer of fire protection systems
based in Ashland, Massachusetts.
Kidde PLC is a manufacturer of fire safety products based in
Mebane, North Carolina.
Nation Ford Chemical Company is a manufacturer of specialty organic
chemicals based in Fort Mill, South Carolina.
National Foam, Inc. is a manufacturer of foam concentrate, foam
proportioning systems, fixed and portable foam firefighting
equipment, with principal place of business located at 350 East
Union Street, West Chester, Pennsylvania.
The Chemours Company is a manufacturer of agricultural chemicals
with principal place of business at 1007 Market Street, Wilmington,
Delaware.
Tyco Fire Products L.P., successor-in-interest to The Ansul
Company, is a manufacturer of water-based fire suppression system
components and ancillary building construction products, including
Ansul brand of AFFF, headquartered at One Stanton Street,
Marinette, Wisconsin.
United Technologies Corporation was an American multinational
conglomerate headquartered in Farmington, Connecticut. It merged
with the Raytheon Company in April 2020 to form Raytheon
Technologies.
UTC Fire & Security Americas Corporation, Inc., f/k/a GE
Interlogix, Inc., is a manufacturer of security and fire control
systems based in Bradenton, Florida. [BN]
The Plaintiff is represented by:
Richard Zgoda, Jr., Esq.
Steven D. Gacovino, Esq.
GACOVINO, LAKE & ASSOCIATES, P.C.
270 West Main Street
Sayville, NY 11782
Telephone: (631) 600-0000
Facsimile: (631) 543-5450
- and –
Gregory A. Cade, Esq.
Gary A. Anderson, Esq.
Kevin B. McKie, Esq.
ENVIRONMENTAL LITIGATION GROUP, P.C.
2160 Highland Avenue South
Birmingham, AL 35205
Telephone: (205) 328-9200
Facsimile: (205) 328-9456
3M COMPANY: Exposed Military Men to Toxic Chemicals, Walton Says
----------------------------------------------------------------
RICHARD WALTON, individually and on behalf of all others similarly
situated, Plaintiff v. 3M COMPANY fka MINNESOTA MINING &
MANUFACTURING CO.; NATIONAL FOAM, INC.; KIDDE FIRE FIGHTING, INC;
KIDDE PLC INC.; KIDDE-FENWALL, INC; TYCO FIRE PRODUCTS, LP; BUCKEYE
FIRE EQUIPMENT CO.; CHEMGUARD, INC.; DYNAX CORPORATION; UTC FIRE &
SECURITYAMERICA'S, INC; E.I. DUPONT DE NEMOURS & CO.; DUPONT DE
NEMOURS, INC.; THE CHEMOURS CO.; THE CHEMOURS COMPANY FC, LLC;
CORTEVA, INC.; and DOES 1 to 100, inclusive, Defendants, Case No.
2:21-cv-03172-RMG (D.S.C., September 29, 2021) is a class action
against the Defendants for negligence, strict liability, defective
design, failure to warn, fraudulent concealment, medical monitoring
trust, and violations of the Uniform Voidable Transactions Act and
California Unfair Competition Law.
The Plaintiff seeks to recover compensatory and punitive damages
arising out of serious medical conditions and complications
sustained as a direct result of his exposure to the Defendants'
aqueous film forming foam (AFFF) products containing synthetic,
toxic per- and polyfluoroalkyl substances collectively known as
PFAS during his military service at Marine Corps Recruit Depot San
Diego (MCRD)/Camp Pendleton, a military installation identified as
being contaminated through use of the toxic chemicals.
As a result of the Defendants' alleged omissions and misconduct,
the Plaintiff was diagnosed with kidney cancer.
3M Company, f/k/a Minnesota Mining and Manufacturing Co., is a
multinational conglomerate corporation and designer, marketer,
developer, manufacturer, distributor of firefighting equipment,
including those with AFFF. It is located at 3M Center, St. Paul.
Minnesota.
National Foam, Inc. is a manufacturer of foam concentrate, foam
proportioning systems, fixed and portable foam firefighting
equipment, with principal place of business located at 350 East
Union Street, West Chester, Pennsylvania.
Kidde Fire Fighting, Inc. is a manufacturer of fire safety products
based in Mebane, North Carolina.
Kidde PLC is a manufacturer of fire safety products based in
Mebane, North Carolina.
Kidde-Fenwal, Inc. is a manufacturer of fire protection systems
based in Ashland, Massachusetts.
Tyco Fire Products L.P., successor-in-interest to The Ansul
Company, is a manufacturer of water-based fire suppression system
components and ancillary building construction products, including
Ansul brand of AFFF, headquartered at One Stanton Street,
Marinette, Wisconsin.
Buckeye Fire Equipment Co. is a manufacturer of line of handheld
and wheeled fire extinguishers, suppressing foam concentrates &
hardware, and kitchen suppression systems, with principal place of
business located at 110 Kings Road, Mountain, North Carolina.
Chemguard, Inc. is a manufacturer of fire suppression and specialty
chemicals, including AFFF, with principal place of business located
at One Stanton Street, Marinette, Wisconsin.
Dynax Corporation is a company that specializes in the production
of fluorochemicals based in Pound Ridge, New York.
UTC Fire & Security America's Inc. is a manufacturer of security
and fire control systems based in Bradenton, Florida.
E.I Dupont De Nemours & Co. is a provider of agriculture and
specialty products with principal place of business at 1007 Market
Street, Wilmington, Delaware.
Du Pont De Nemours Inc., f/k/a DowDuPont Inc., is a chemical
company based in Wilmington, Delaware.
The Chemours Company is a manufacturer of agricultural chemicals
with principal place of business at 1007 Market Street, Wilmington,
Delaware.
Chemours Company FC, LLC is a manufacturer of titanium
technologies, fluoroproducts and chemical solutions based in
Wilmington, Delaware.
Corteva, Inc. is an American agricultural chemical and seed company
based in Wilmington, Delaware. [BN]
The Plaintiff is represented by:
Jeremy C. Shafer, Esq.
BANNER LEGAL
445 Marine View Avenue, Suite 100
Del Mar, CA 92014
Telephone: (760) 479-5404
E-mail: jshafer@bannerlegal.com
- and –
S. James Boumil, Esq.
BOUMIL LAW OFFICES
120 Fairmount Street
Lowell, MA, 01852
Telephone: (978) 458-0507
E-mail: sjboumil@boumil-law.com
- and –
Konstantine Kyros, Esq.
KYROS LAW
17 Miles Rd.
Hingham, MA 02043
Telephone: (800) 934-2921
E-mail: kon@kyroslaw.com
3M COMPANY: Faces Mills Suit Over Harmful Effects of AFFF Products
------------------------------------------------------------------
STEVEN MILLS, individually and on behalf of all others similarly
situated, Plaintiff v. 3M COMPANY fka MINNESOTA MINING &
MANUFACTURING CO.; NATIONAL FOAM, INC.; KIDDE FIRE FIGHTING, INC;
KIDDE PLC INC.; KIDDE-FENWALL, INC; TYCO FIRE PRODUCTS, LP; BUCKEYE
FIRE EQUIPMENT CO.; CHEMGUARD, INC.; DYNAX CORPORATION; UTC FIRE &
SECURITYAMERICA'S, INC; E.I. DUPONT DE NEMOURS & CO.; DUPONT DE
NEMOURS, INC.; THE CHEMOURS CO.; THE CHEMOURS COMPANY FC, LLC;
CORTEVA, INC.; and DOES 1 to 100, inclusive, Defendants, Case No.
2:21-cv-03163-RMG (D.S.C., September 29, 2021) is a class action
against the Defendants for negligence, strict liability, defective
design, failure to warn, fraudulent concealment, medical monitoring
trust, and violations of the Uniform Voidable Transactions Act and
California Unfair Competition Law.
According to the complaint, the Defendants have failed to use
reasonable and appropriate care in the design, manufacture,
labeling, warning, instruction, training, selling, marketing, and
distribution of aqueous film forming foam (AFFF) products
containing synthetic, toxic per- and polyfluoroalkyl substances
collectively known as PFAS. The Defendants' AFFF products are
dangerous to human health because PFAS are highly toxic and
carcinogenic chemicals and can accumulate in the blood and body of
exposed individuals. The Defendants have also failed to warn public
entities and military members, including the Plaintiff, who they
knew would foreseeably come into contact with their AFFF products.
The Plaintiff used the Defendants' PFAS-containing AFFF products in
their intended manner, without significant change in the products'
condition due to inadequate warning about the products' danger. The
Plaintiff relied on the Defendants' instructions as to the proper
handling of the products, the suit asserts.
As a result of the Defendants' alleged omissions and misconduct,
the Plaintiff was diagnosed with kidney cancer.
3M Company, f/k/a Minnesota Mining and Manufacturing Co., is a
multinational conglomerate corporation and designer, marketer,
developer, manufacturer, distributor of firefighting equipment,
including those with AFFF. It is located at 3M Center, St. Paul.
Minnesota.
National Foam, Inc. is a manufacturer of foam concentrate, foam
proportioning systems, fixed and portable foam firefighting
equipment, with principal place of business located at 350 East
Union Street, West Chester, Pennsylvania.
Kidde Fire Fighting, Inc. is a manufacturer of fire safety products
based in Mebane, North Carolina.
Kidde PLC is a manufacturer of fire safety products based in
Mebane, North Carolina.
Kidde-Fenwal, Inc. is a manufacturer of fire protection systems
based in Ashland, Massachusetts.
Tyco Fire Products L.P., successor-in-interest to The Ansul
Company, is a manufacturer of water-based fire suppression system
components and ancillary building construction products, including
Ansul brand of AFFF, headquartered at One Stanton Street,
Marinette, Wisconsin.
Buckeye Fire Equipment Co. is a manufacturer of line of handheld
and wheeled fire extinguishers, suppressing foam concentrates &
hardware, and kitchen suppression systems, with principal place of
business located at 110 Kings Road, Mountain, North Carolina.
Chemguard, Inc. is a manufacturer of fire suppression and specialty
chemicals, including AFFF, with principal place of business located
at One Stanton Street, Marinette, Wisconsin.
Dynax Corporation is a company that specializes in the production
of fluorochemicals based in Pound Ridge, New York.
UTC Fire & Security America's Inc. is a manufacturer of security
and fire control systems based in Bradenton, Florida.
E.I Dupont De Nemours & Co. is a provider of agriculture and
specialty products with principal place of business at 1007 Market
Street, Wilmington, Delaware.
Du Pont De Nemours Inc., f/k/a DowDuPont Inc., is a chemical
company based in Wilmington, Delaware.
The Chemours Company is a manufacturer of agricultural chemicals
with principal place of business at 1007 Market Street, Wilmington,
Delaware.
Chemours Company FC, LLC is a manufacturer of titanium
technologies, fluoroproducts and chemical solutions based in
Wilmington, Delaware.
Corteva, Inc. is an American agricultural chemical and seed company
based in Wilmington, Delaware. [BN]
The Plaintiff is represented by:
Jeremy C. Shafer, Esq.
BANNER LEGAL
445 Marine View Avenue, Suite 100
Del Mar, CA 92014
Telephone: (760) 479-5404
E-mail: jshafer@bannerlegal.com
- and –
S. James Boumil, Esq.
BOUMIL LAW OFFICES
120 Fairmount Street
Lowell, MA, 01852
Telephone: (978) 458-0507
E-mail: sjboumil@boumil-law.com
- and –
Konstantine Kyros, Esq.
KYROS LAW
17 Miles Rd.
Hingham, MA 02043
Telephone: (800) 934-2921
E-mail: kon@kyroslaw.com
3M COMPANY: Haldeman Sues Over Injury Sustained From AFFF Products
------------------------------------------------------------------
KAREN HALDEMAN, individually and on behalf of all others similarly
situated, Plaintiff v. 3M COMPANY fka MINNESOTA MINING &
MANUFACTURING CO.; NATIONAL FOAM, INC.; KIDDE FIRE FIGHTING, INC;
KIDDE PLC INC.; KIDDE-FENWALL, INC; TYCO FIRE PRODUCTS, LP; BUCKEYE
FIRE EQUIPMENT CO.; CHEMGUARD, INC.; DYNAX CORPORATION; UTC FIRE &
SECURITYAMERICA'S, INC; E.I. DUPONT DE NEMOURS & CO.; DUPONT DE
NEMOURS, INC.; THE CHEMOURS CO.; THE CHEMOURS COMPANY FC, LLC;
CORTEVA, INC.; and DOES 1 to 100, inclusive, Defendants, Case No.
2:21-cv-03173-RMG (D.S.C., September 29, 2021) is a class action
against the Defendants for negligence, strict liability, defective
design, failure to warn, fraudulent concealment, medical monitoring
trust, and violations of the Uniform Voidable Transactions Act and
California Unfair Competition Law.
According to the complaint, the Defendants have failed to use
reasonable and appropriate care in the design, manufacture,
labeling, warning, instruction, training, selling, marketing, and
distribution of aqueous film forming foam (AFFF) products
containing synthetic, toxic per- and polyfluoroalkyl substances
collectively known as PFAS. The Defendants' AFFF products are
dangerous to human health because PFAS are highly toxic and
carcinogenic chemicals and can accumulate in the blood and body of
exposed individuals. The Defendants have also failed to warn public
entities and military members, including the Plaintiff, who they
knew would foreseeably come into contact with their AFFF products.
The Plaintiff used the Defendants' PFAS-containing AFFF products in
their intended manner, without significant change in the products'
condition due to inadequate warning about the products' danger. The
Plaintiff relied on the Defendants' instructions as to the proper
handling of the products, says the suit.
As a result of the Defendants' alleged omissions and misconduct,
the Plaintiff was diagnosed with kidney cancer.
3M Company, f/k/a Minnesota Mining and Manufacturing Co., is a
multinational conglomerate corporation and designer, marketer,
developer, manufacturer, distributor of firefighting equipment,
including those with AFFF. It is located at 3M Center, St. Paul.
Minnesota.
National Foam, Inc. is a manufacturer of foam concentrate, foam
proportioning systems, fixed and portable foam firefighting
equipment, with principal place of business located at 350 East
Union Street, West Chester, Pennsylvania.
Kidde Fire Fighting, Inc. is a manufacturer of fire safety products
based in Mebane, North Carolina.
Kidde PLC is a manufacturer of fire safety products based in
Mebane, North Carolina.
Kidde-Fenwal, Inc. is a manufacturer of fire protection systems
based in Ashland, Massachusetts.
Tyco Fire Products L.P., successor-in-interest to The Ansul
Company, is a manufacturer of water-based fire suppression system
components and ancillary building construction products, including
Ansul brand of AFFF, headquartered at One Stanton Street,
Marinette, Wisconsin.
Buckeye Fire Equipment Co. is a manufacturer of line of handheld
and wheeled fire extinguishers, suppressing foam concentrates &
hardware, and kitchen suppression systems, with principal place of
business located at 110 Kings Road, Mountain, North Carolina.
Chemguard, Inc. is a manufacturer of fire suppression and specialty
chemicals, including AFFF, with principal place of business located
at One Stanton Street, Marinette, Wisconsin.
Dynax Corporation is a company that specializes in the production
of fluorochemicals based in Pound Ridge, New York.
UTC Fire & Security America's Inc. is a manufacturer of security
and fire control systems based in Bradenton, Florida.
E.I Dupont De Nemours & Co. is a provider of agriculture and
specialty products with principal place of business at 1007 Market
Street, Wilmington, Delaware.
Du Pont De Nemours Inc., f/k/a DowDuPont Inc., is a chemical
company based in Wilmington, Delaware.
The Chemours Company is a manufacturer of agricultural chemicals
with principal place of business at 1007 Market Street, Wilmington,
Delaware.
Chemours Company FC, LLC is a manufacturer of titanium
technologies, fluoroproducts and chemical solutions based in
Wilmington, Delaware.
Corteva, Inc. is an American agricultural chemical and seed company
based in Wilmington, Delaware. [BN]
The Plaintiff is represented by:
Jeremy C. Shafer, Esq.
BANNER LEGAL
445 Marine View Avenue, Suite 100
Del Mar, CA 92014
Telephone: (760) 479-5404
E-mail: jshafer@bannerlegal.com
- and –
S. James Boumil, Esq.
BOUMIL LAW OFFICES
120 Fairmount Street
Lowell, MA, 01852
Telephone: (978) 458-0507
E-mail: sjboumil@boumil-law.com
- and –
Konstantine Kyros, Esq.
KYROS LAW
17 Miles Rd.
Hingham, MA 02043
Telephone: (800) 934-2921
E-mail: kon@kyroslaw.com
3M COMPANY: Manis Suit Alleges Complications From AFFF Products
---------------------------------------------------------------
JAMES MANIS, individually and on behalf of all others similarly
situated, Plaintiff v. 3M COMPANY f/k/a Minnesota Mining and
Manufacturing Company; ACG CHEMICALS AMERICAS INC.; AMEREX
CORPORATION; ARCHROMA U.S. INC.; ARKEMA, INC.; BUCKEYE FIRE
EQUIPMENT COMPANY; CARRIER GLOBAL CORPORATION; CHEMDESIGN PRODUCTS,
INC.; CHEMGUARD, INC.; CHEMICALS, INC.; CHEMOURS COMPANY FC, LLC;
CHUBB FIRE, LTD; CLARIANT CORP.; CORTEVA, INC.; DEEPWATER
CHEMICALS, INC.; DU PONT DE NEMOURS INC. f/k/a DOWDUPONT INC.;
DYNAX CORPORATION; E.I. DU PONT DE NEMOURS AND COMPANY;
KIDDE-FENWAL, INC.; KIDDE PLC; NATION FORD CHEMICAL COMPANY;
NATIONAL FOAM, INC.; THE CHEMOURS COMPANY; TYCO FIRE PRODUCTS LP,
as successor-in-interest to The Ansul Company; UNITED TECHNOLOGIES
CORPORATION; UTC FIRE & SECURITY AMERICAS CORPORATION, INC. f/k/a
GE Interlogix, Inc., Defendants, Case No. 2:21-cv-03129-RMG
(D.S.C., September 27, 2021) is a class action against the
Defendants for negligence, battery, inadequate warning, design
defect, strict liability, fraudulent concealment, breach of express
and implied warranties, and wantonness.
According to the complaint, the Defendants have failed to use
reasonable and appropriate care in the design, manufacture,
labeling, warning, instruction, training, selling, marketing, and
distribution of aqueous film forming foam (AFFF) products
containing synthetic, toxic per- and polyfluoroalkyl substances
collectively known as PFAS. The Defendants' AFFF products are
dangerous to human health because PFAS are highly toxic and
carcinogenic chemicals and can accumulate in the blood and body of
exposed individuals. The Defendants have also failed to warn public
entities and military members, including the Plaintiff, who they
knew would foreseeably come into contact with their AFFF products.
The Plaintiff used the Defendants' PFAS-containing AFFF products in
their intended manner, without significant change in the products'
condition due to inadequate warning about the products' danger. The
Plaintiff relied on the Defendants' instructions as to the proper
handling of the products, says the suit.
As a result of the Defendants' alleged omissions and misconduct,
the Plaintiff was diagnosed with prostate cancer.
3M Company, f/k/a Minnesota Mining and Manufacturing Co., is a
multinational conglomerate corporation and designer, marketer,
developer, manufacturer, distributor of firefighting equipment,
including those with AFFF. It is located at 3M Center, St. Paul.
Minnesota.
ACG Chemicals Americas Inc. is a manufacturer of chemical products
based in Exton, Pennsylvania.
Amerex Corporation is a manufacturer of firefighting products based
in Trussville, Alabama.
Archroma U.S. Inc. is a global specialty chemicals company
headquartered in Charlotte, North Carolina.
Arkema, Inc. is a diversified chemicals manufacturer in North
America, based in King of Prussia, Pennsylvania.
Buckeye Fire Equipment Co. is a manufacturer of line of handheld
and wheeled fire extinguishers, suppressing foam concentrates &
hardware, and kitchen suppression systems, with principal place of
business located at 110 Kings Road, Mountain, North Carolina.
Carrier Global Corporation is a heating, ventilation, and air
conditioning company based in Palm Beach Gardens, Florida.
Chemdesign Products, Inc. is a chemical toll manufacturing company
based in Marinette, Wisconsin.
Chemguard, Inc. is a manufacturer of fire suppression and specialty
chemicals, including AFFF, with principal place of business located
at One Stanton Street, Marinette, Wisconsin.
Chemicals, Inc. is a chemical manufacturing company based in
Baytown, Texas.
Chemours Company FC, LLC is a manufacturer of titanium
technologies, fluoroproducts and chemical solutions based in
Wilmington, Delaware.
Chubb Fire, Ltd is a provider of security and fire protection
systems based in United Kingdom.
Clariant Corp. is a specialty chemical company based in Charlotte,
North Carolina.
Corteva, Inc. is an American agricultural chemical and seed company
based in Wilmington, Delaware.
Deepwater Chemicals, Inc. is a producer of organic and inorganic
iodine derivatives based in Woodward, Oklahoma.
Du Pont De Nemours Inc., f/k/a DowDuPont Inc., is a chemical
company based in Wilmington, Delaware.
Dynax Corporation is a company that specializes in the production
of fluorochemicals based in Pound Ridge, New York.
E.I Dupont De Nemours & Co. is a provider of agriculture and
specialty products with principal place of business at 1007 Market
Street, Wilmington, Delaware.
Kidde-Fenwal, Inc. is a manufacturer of fire protection systems
based in Ashland, Massachusetts.
Kidde PLC is a manufacturer of fire safety products based in
Mebane, North Carolina.
Nation Ford Chemical Company is a manufacturer of specialty organic
chemicals based in Fort Mill, South Carolina.
National Foam, Inc. is a manufacturer of foam concentrate, foam
proportioning systems, fixed and portable foam firefighting
equipment, with principal place of business located at 350 East
Union Street, West Chester, Pennsylvania.
The Chemours Company is a manufacturer of agricultural chemicals
with principal place of business at 1007 Market Street, Wilmington,
Delaware.
Tyco Fire Products L.P., successor-in-interest to The Ansul
Company, is a manufacturer of water-based fire suppression system
components and ancillary building construction products, including
Ansul brand of AFFF, headquartered at One Stanton Street,
Marinette, Wisconsin.
United Technologies Corporation was an American multinational
conglomerate headquartered in Farmington, Connecticut. It merged
with the Raytheon Company in April 2020 to form Raytheon
Technologies.
UTC Fire & Security Americas Corporation, Inc., f/k/a GE
Interlogix, Inc., is a manufacturer of security and fire control
systems based in Bradenton, Florida. [BN]
The Plaintiff is represented by:
Richard Zgoda, Jr., Esq.
Steven D. Gacovino, Esq.
GACOVINO, LAKE & ASSOCIATES, P.C.
270 West Main Street
Sayville, NY 11782
Telephone: (631) 600-0000
Facsimile: (631) 543-5450
- and –
Gregory A. Cade, Esq.
Gary A. Anderson, Esq.
Kevin B. McKie, Esq.
ENVIRONMENTAL LITIGATION GROUP, P.C.
2160 Highland Avenue South
Birmingham, AL 35205
Telephone: (205) 328-9200
Facsimile: (205) 328-9456
3M COMPANY: McDaniel Alleges Toxic Exposure From AFFF Products
--------------------------------------------------------------
ROBERT MCDANIEL, individually and on behalf of all others similarly
situated, Plaintiff v. 3M COMPANY fka MINNESOTA MINING &
MANUFACTURING CO.; NATIONAL FOAM, INC.; KIDDE FIRE FIGHTING, INC;
KIDDE PLC INC.; KIDDE-FENWALL, INC; TYCO FIRE PRODUCTS, LP; BUCKEYE
FIRE EQUIPMENT CO.; CHEMGUARD, INC.; DYNAX CORPORATION; UTC FIRE &
SECURITYAMERICA'S, INC; E.I. DUPONT DE NEMOURS & CO.; DUPONT DE
NEMOURS, INC.; THE CHEMOURS CO.; THE CHEMOURS COMPANY FC, LLC;
CORTEVA, INC.; and DOES 1 to 100, inclusive, Defendants, Case No.
2:21-cv-03164-RMG (D.S.C., September 29, 2021) is a class action
against the Defendants for negligence, strict liability, defective
design, failure to warn, fraudulent concealment, medical monitoring
trust, and violations of the Uniform Voidable Transactions Act and
California Unfair Competition Law.
The case arises from a personal injury sustained by the Plaintiff
as a result of his exposure to the Defendants' aqueous film forming
foam (AFFF) products containing synthetic, toxic per- and
polyfluoroalkyl substances collectively known as PFAS. The
Defendants failed to use reasonable and appropriate care in the
design, manufacture, labeling, warning, instruction, training,
selling, marketing, and distribution of their PFAS-containing AFFF
products and also failed to warn public entities and firefighter
trainees, including the Plaintiff, who they knew would foreseeably
come into contact with their AFFF products that use of and/or
exposure to the products would pose a danger to human health. Due
to inadequate warning, the Plaintiff was exposed to toxic chemicals
and was diagnosed with thyroid disease, says the suit.
3M Company, f/k/a Minnesota Mining and Manufacturing Co., is a
multinational conglomerate corporation and designer, marketer,
developer, manufacturer, distributor of firefighting equipment,
including those with AFFF. It is located at 3M Center, St. Paul.
Minnesota.
National Foam, Inc. is a manufacturer of foam concentrate, foam
proportioning systems, fixed and portable foam firefighting
equipment, with principal place of business located at 350 East
Union Street, West Chester, Pennsylvania.
Kidde Fire Fighting, Inc. is a manufacturer of fire safety products
based in Mebane, North Carolina.
Kidde PLC is a manufacturer of fire safety products based in
Mebane, North Carolina.
Kidde-Fenwal, Inc. is a manufacturer of fire protection systems
based in Ashland, Massachusetts.
Tyco Fire Products L.P., successor-in-interest to The Ansul
Company, is a manufacturer of water-based fire suppression system
components and ancillary building construction products, including
Ansul brand of AFFF, headquartered at One Stanton Street,
Marinette, Wisconsin.
Buckeye Fire Equipment Co. is a manufacturer of line of handheld
and wheeled fire extinguishers, suppressing foam concentrates &
hardware, and kitchen suppression systems, with principal place of
business located at 110 Kings Road, Mountain, North Carolina.
Chemguard, Inc. is a manufacturer of fire suppression and specialty
chemicals, including AFFF, with principal place of business located
at One Stanton Street, Marinette, Wisconsin.
Dynax Corporation is a company that specializes in the production
of fluorochemicals based in Pound Ridge, New York.
UTC Fire & Security America's Inc. is a manufacturer of security
and fire control systems based in Bradenton, Florida.
E.I Dupont De Nemours & Co. is a provider of agriculture and
specialty products with principal place of business at 1007 Market
Street, Wilmington, Delaware.
Du Pont De Nemours Inc., f/k/a DowDuPont Inc., is a chemical
company based in Wilmington, Delaware.
The Chemours Company is a manufacturer of agricultural chemicals
with principal place of business at 1007 Market Street, Wilmington,
Delaware.
Chemours Company FC, LLC is a manufacturer of titanium
technologies, fluoroproducts and chemical solutions based in
Wilmington, Delaware.
Corteva, Inc. is an American agricultural chemical and seed company
based in Wilmington, Delaware. [BN]
The Plaintiff is represented by:
Jeremy C. Shafer, Esq.
BANNER LEGAL
445 Marine View Avenue, Suite 100
Del Mar, CA 92014
Telephone: (760) 479-5404
E-mail: jshafer@bannerlegal.com
- and –
S. James Boumil, Esq.
BOUMIL LAW OFFICES
120 Fairmount Street
Lowell, MA, 01852
Telephone: (978) 458-0507
E-mail: sjboumil@boumil-law.com
- and –
Konstantine Kyros, Esq.
KYROS LAW
17 Miles Rd.
Hingham, MA 02043
Telephone: (800) 934-2921
E-mail: kon@kyroslaw.com
ABIOMED INC: New York Court Dismisses Villare Securities Class Suit
-------------------------------------------------------------------
In the case, KEVIN VILLARE, individually and on behalf of all
others similarly situated v. ABIOMED, INC., MICHAEL R. MINOGUE, and
TODD A. TRAPP, Defendants, Case No. 19 Civ. 7319 (ER) (S.D.N.Y.),
Judge Edgardo Ramos of the U.S. District Court for the Southern
District of New York granted the Defendants' motion to dismiss.
The Defendants moved to dismiss the lawsuit pursuant to Federal
Rule of Civil Procedure 12(b)(6).
Background
Lead Plaintiff Local 705 International Brotherhood of Teamsters
Pension Fund brings the federal securities class action against the
Defendants. In its Amended Complaint, Local 705 seeks to pursue
remedies under sections 10(b) and 20(a) of the Securities Exchange
Act of 1934 and Rule 10b-5, promulgated thereunder. Local 705
brings its claims on behalf of purchasers of publicly traded
securities of Abiomed between May 3, 2018 to July 31, 2019
Founded in 1981, Abiomed develops, manufactures, and markets
devices that are designed to improve blood flow to the coronary
arteries and to temporarily assist the pumping function of the
heart. Minogue served as Abiomed's chairman, president, and CEO at
all relevant times. Trapp served as Abiomed's vice president and
chief financial officer at all relevant times. Minogue and Trapp
signed Abiomed's annual reports and Sarbanes-Oxley Act
certifications and participated in each of the company's
quarterly-earnings conference calls. Local 705 and the other
Plaintiffs purchased or otherwise acquired Abiomed securities
during the Class Period.
The strategic focus and driver of Abiomed's revenue growth is its
family of the Impella Platform, which includes the Impella 2.5,
Impella 5.0, Impella LD, Impella CP, and Impella RP. The Impella
products ("Impella Pumps") are percutaneous heart pumps with some
pumps used by interventional cardiologists in the cath lab, some
used by cardiac surgeons, and some used by both. The Food and Drug
Administration ("FDA") categorizes these devices as Class III
devices, meaning that they require premarket approval for sale to
the public, based on a determination by the FDA that a given device
is safe and effective for its intended use. During the Class
Period, sales of Impella Pumps accounted for 96% of Abiomed's total
revenue, and Minogue and Trap stressed the importance of these
products.
Although many of the Impella Pumps had been on the market since
2012, Abiomed began to show substantial year-on-year revenue growth
after the FDA granted the Impella RP a humanitarian exemption in
the third quarter of Fiscal Year 2015. The Impella RP, unlike the
other Impella Pumps, is designed to compensate for right heart
failure, and was touted as the "first percutaneous single access
heart pump designed for right heart support to receive FDA
approval." As Local 705 notes, Abiomed reported year-on-year
revenue growth of 34% for the third quarter of 2015 and went on to
report year-on-year revenue growth of more than 25% for the next 15
quarters.
On Feb. 4, 2019, the FDA issued a letter to health care providers
concerning the data from Abiomed's pre-market clinical studies.
According to that letter, in those studies, 73.3% of patients
survived to 30 days after the removal of the device or after
hospital discharge, whichever period was longer. In a separate,
post-approval study, however, only 17.4% survived to that same
endpoint. According to the FDA, the patients in the latter study
were more likely than the patients in the former to have been in
cardiogenic shock for longer than 48 hours, to have experienced
in-hospital cardiac arrest, to have been treated with an
intra-aortic balloon bump, or to have suffered a pre-implant
hypoxic or ischemic neurological event. Accordingly, the FDA
advised that "physicians should be aware that the occurrence of one
or more of these events prior to Impella RP implantation may
decrease expected survival rate."
Abiomed's next few fiscal reports showed a slowdown in the
company's growth rate. On May 2, 2019, Abiomed issued a press
release, attached to a Form 8-K signed by Trapp, reporting the
company's financial and operating results for the fourth quarter
and full Fiscal Year 2019 -- both of which ended on March 31, 2019.
The press release reported revenue that was $10 million short of
analyst expectations, and which had increased only 19% year over
year.
On May 21, 2019, the FDA issued an update regarding the Impella RP.
In that letter, the FDA noted that, in the post-approval study, the
survival rate of patients who would have qualified for the
pre-market study was 64%, whereas the survival rate among patients
who would not have qualified was less than 11%. The letter also
emphasized that, "when the device is used for the currently
approved indication in appropriately selected patients, the
benefits of the Impella RP continue to outweigh the risks."
Additionally, the FDA noted that it approved revised labeling for
the Impella RP that included more information about which patients
could benefit the most from treatment with the device.
According to Local 705, both this letter and the Feb. 4, 2019
letter from the FDA validated concerns related to Abiomed's ability
to convince doctors to use Impella Pumps over IABPs.
On Aug. 1, 2019, Abiomed issued a press release announcing its
financial and operating results for the first quarter of Fiscal
Year 2020 -- which ended June 30, 2019. In the press release,
Abiomed disclosed its third consecutive quarter of slowing revenue
growth, reporting an increase of 15.4% year-over-year growth.
Relatedly, Abiomed conceded that training physicians on "Impella
access, closure and ICU management" was the company's biggest
obstacle among doctors not already using the Impella Pumps. It also
revised down its guidance for Fiscal Year 2020, projecting an
increase of only 15% to 20% over the prior year in total revenue,
and projecting its operating margin to be in the range of 28% to
30%. On this news, Abiomed's stock price fell $73.69 per share, or
26.45%, to close at $204.87 per share on Aug. 1, 2019.
Local 705 relies on accounts from Abiomed employees. It categorizes
allegations arising from these confidential witnesses' accounts
into four topics: the sale of Impella Pumps; questions about
clinical data and FDA reporting; market saturation; and meetings,
calls, and reports. Several of the confidential witnesses commented
on Abiomed's sales practices. CW-2 stated that the FDA's Feb. 4,
2019 letter regarding increased mortality rates for the Impella RP
led to only a small impact on sales, contrary to Abiomed's
suggestion that the effect was more significant. Multiple
confidential witnesses noted that Abiomed emphasized its 30% growth
rate, although witnesses differed as to whether that represented a
yearly or quarterly figure. Employees at Abiomed also regularly
discussed sales figures.
According to Local 705, Minogue and two non-parties -- COO David
Weber and Director Martin Sutter -- sold stock during the Class
Period in a suspicious manner. These sales, it should be noted,
were made pursuant to Abiomed's Rule 10b5-1 Plans.
On Aug. 6, 2019, Villare filed the instant suit. On Oct. 7, 2019,
Joseph Barry filed a separate class action suit against the same
defendants (Barry v. ABIOMED, No. 19 Civ. 9258 (S.D.N.Y. 2019)). On
Oct. 21, 2019, however, Barry filed a notice conceding that he did
not have the largest financial interest in the instant matter. In
its June 29, 2020 Order, the Court appointed Local 705 as the Lead
Plaintiff and consolidated the two suits.
On Sept. 17, 2020, Local 705 filed its Amended Complaint.
On Nov. 16, 2020, the Defendants filed the instant motion.
Discussion
A. Section 10(b) and Rule 10b-5
To state a private civil claim under section 10(b) and Rule 10b-5,
a plaintiff must plead that: (1) the defendant made a material
misrepresentation or omission, (2) with scienter, i.e., a wrongful
state of mind, (3) in connection with the purchase or sale of a
security, and (4) that the plaintiff relied on the
misrepresentation or omission, thereby (5) causing economic loss.
The Defendants contest only the first two elements.
1. Material Misrepresentation or Omission
The Defendants argue that Local 705 fails to state a claim for a
violation of the Exchange Act, asserting it has not pled an
actionable misstatement or omission. They also contend that the
challenged statements constitute non-actionable corporate optimism
or puffery, forward-looking statements, and opinion statements.
a. Actionable Omissions
According to Local 705, the Defendants made several false and
misleading statements. Specifically, Local 705 contends that the
Defendants' statements regarding Abiomed's growth rate, its ability
to grow sustainably and penetrate the market, and its execution of
its five-year growth plan were all materially false and misleading.
According to Local 705, those statements were false and misleading
because the Defendants failed to disclose material adverse facts
about Abiomed's business
The Defendants emphasize that, at bottom, Local 705 seeks to hold
them liable for failing to acknowledge the long-term
unsustainability of Abiomed's business model, and that premise has
been easily rejected in this Circuit. Further, they contend that
Local 705 fails to plead with the requisite particularity that they
omitted that the growth rate was assured to decline.
Judge Ramos agrees with the Defendants. He finds that Local 705
fails to allege an actionable omission. Notably, Local 705 pleads
no specific factual allegation indicating that future growth was
assured to decline. Although the Amended Complaint offers the
subjective views of confidential witnesses regarding the purported
unsustainability of Abiomed's growth rates, the Judge says, those
views are "not sufficient to demonstrate that any of the
Defendants' statements were inaccurate at the time they were made,
or that any Defendant believed them to be so."
Moreover, during the Class Period, the Defendants offered robust
and specific disclosures that included detailed figures regarding
market penetration and reorder rates, and informed investors in
advance of risks and of a potential decline in growth rate.
Because, in essence, Local 705 seeks to hold the Defendants liable
simply for failing to acknowledge the unsustainability of their
business model, it has failed to allege an actionable omission.
b. Corporate Optimism or Puffery
The Defendants also argue that, even if the challenged statements
satisfy an omissions theory, they are still non-actionable
corporate optimism or puffery. A statement of "puffery" -- that is,
"an optimistic statement that is so vague, broad, and non-specific
that a reasonable investor would not rely on it" -- "is not
actionable." Local 705 responds that the Defendants cherry pick
statements out of context to support their arguments.
Judge Ramos again agrees with the Defendants. Contrary to Local
705's position, the Judge says, the challenged statements, and the
context in which they were made, are indistinguishable from
statements other courts in the District have deemed to be puffery.
The challenged statements are too vague and generic to be
actionable. Moreover, Local 705 fails to demonstrate any concrete
guarantee or baseline by which to verify the challenged statements,
unlike cases in which courts have concluded that statements were
verifiable and, therefore, actionable.
Abiomed's growth and expansion "may have been important to its
success, but the Defendants' statements about" Abiomed's growth and
expansion "were not sufficiently specific or concrete to mislead
reasonable investors." And again, when contextualized, the
challenged statements are simply too generic for a reasonable
investor to rely on. Accordingly, Judge Ramos concludes that the
Defendants' challenged statements constitute non-actionable
puffery.
c. Forward-looking Statements
The Defendants argue that the challenged statements would also be
protected under the PSLRA's safe harbor for forward-looking
statements. According to them, the challenged statements regarding
potential growth are quintessentially forward-looking statements
protected under the PSLA's safe harbor, as they are about Abiomed's
growth goal. In response, Local 705 argues that most of the
challenged statements are not forward looking at all. Instead, the
statements are based on representations of historical or
contemporaneous facts -- and therefore, are not protected by the
PSLRA's safe harbor.
Judge Ramos concludes that the present-tense portions of the
challenged statements, when examined in context, fail to make any
contemporaneous guarantee, simply stating educated guesses about
what the preceding financial data would mean for Abiomed's future;
accordingly, both the forward-looking and present-tense portions of
those statements are covered by the PSRLA's safe harbor provision.
Moreover, Local 705's attempt at casting Abiomed's statements about
growth as present-tense statements is unpersuasive. The Judge also
notes that several other courts in the District have examined
similar language and concluded that such statements are forward
looking. Accordingly, Judge Ramos concludes that the challenged
statements are forward-looking statements subject to the safe
harbor provision of the PSLRA and, therefore, are not actionable.
d. Non-actionable Opinions
The Defendants also argue that the statements at issue are
non-actionable opinions. "A 'sincere statement of pure opinion is
not an untrue statement of material fact, regardless of whether an
investor can ultimately prove the belief wrong.'" An opinion
statement, however, may give rise to liability under section 10(b)
in two distinct ways.
The Defendants argue that the challenged statements are statements
of opinion, as they are focused on predictions of future
performance, which are inherently statements of goals or beliefs.
Local 705 argues that, when viewed in context, most are statements
of fact. But as the Defendants note, Local 705 does not challenge
the accuracy of Abiomed's historic growth rate; rather, at bottom,
Local 705 challenges "statements of goals or beliefs" regarding
"continued progress" towards "sustainable growth" and meeting a
long-term vision.
Judge Ramos agrees with the Defendants. He opines that the
existence of financial challenges, particularly where the
Defendants had acknowledged these challenges and outlined efforts
to mitigate them, does not render their optimistic opinion
statements actionable." As discussed, the Defendants both disclosed
all relevant financial data and, in every SEC filing, acknowledged
the very risks to the growth rate that Local 705 identifies in the
Amended Complaint. And in any event, Local 705's case "essentially
boils down to an allegation that the Defendants' statements were
misleading for failure to include a fact that would have
potentially undermined the Defendants' optimistic projections," but
the "Defendants were only tasked with making statements that
'fairly aligned with the information in the issuer's possession at
the time.'" Accordingly, Judge Ramos concludes that Local 705 has
failed to allege a material misrepresentation or omission to
support a claim under section 10(b).
2. Scienter
The Defendants also argue that Local 705 has failed to adequately
plead scienter. A plaintiff may establish scienter by alleging
facts that either (1) show that the defendant had both the "motive
and opportunity" to commit the alleged fraud, or (2) constitute
"strong circumstantial evidence of conscious misbehavior or
recklessness."
Judge Ramos states that in determining whether Local 705 has
adequately established scienter, he is mindful of its obligation to
consider 'whether all of the facts alleged, taken collectively,
give rise to a strong inference of scienter, not whether any
individual allegation, scrutinized in isolation, meets that
standard.' But Local 705's allegations fall short both individually
and collectively. Accordingly, he concludes that Local 705 has
failed to state a claim pursuant to section 10(b).
B. Section 20(a)
Local 705 brings a claim for violation of section 20(a) against
Minogue and Trapp. Section 20(a) of the Exchange Act imposes
liability on individuals who control any person or entity that
violates section 10. To assert a prima facie case under Section
20(a), a plaintiff must show a primary violation by the controlled
person and control of the primary violator by the targeted
defendant, and show that the controlling person was in some
meaningful sense a culpable participant in the fraud perpetrated by
the controlled person. Because Local 705 has failed to allege a
primary violation of the Exchange Act, JUdge Ramos holds that its
claim pursuant to section 20(a) is also dismissed.
Conclusion
For the foregoing reasons, Judge Ramos granted the Defendants'
motion. Because Local 705 has requested leave to amend its
complaint, and amendment would not necessarily be futile, Local 705
is granted leave to move to amend in accordance with the following
schedule: Local 705 will file its motion by Oct. 12, 2021, the
Defendants will file their opposition by Nov. 2, 2021, and Local
705 will file its reply will by Nov. 9, 2021. The Clerk of Court is
respectfully directed to terminate the motion, and the requests for
oral argument are denied as moot.
A full-text copy of the Court's Sept. 21, 2021 Opinion & Order is
available at https://tinyurl.com/w94xzy3c from Leagle.com.
ACE PARKING: Mkoma Wage-and-Hour Suit Removed to S.D. California
----------------------------------------------------------------
The case styled HALIMO MKOMA, individually and on behalf of all
others similarly situated v. ACE PARKING MANAGEMENT, INC. and DOES
1 through 100, inclusive, Case No. 30-2021-00034989-CU-OE-CTL, was
removed from the Superior Court of the State of California for the
County of San Diego to the U.S. District Court for the Southern
District of California on September 29, 2021.
The Clerk of Court for the Southern District of California assigned
Case No. 3:21-cv-01693-MMA-MSB to the proceeding.
The case arises from the Defendant's alleged violations of the
California Labor Code and the California Business and Professions
Code including unpaid overtime, unpaid meal period premiums, unpaid
rest period premiums, unpaid minimum wages, final wages not timely
paid, wages not timely paid during employment, non-compliant wage
statements, failure to keep requisite payroll records, unreimbursed
business expenses, and unfair business practices.
Ace Parking Management, Inc. is a provider of parking management
services, headquartered in San Diego, California. [BN]
The Defendant is represented by:
James C. Fessenden, Esq.
Phillip G. Simpler, Esq.
Lauren Bushman, Esq.
FISHER & PHILLIPS LLP
4747 Executive Drive, Suite 1000
San Diego, CA 92121
Telephone: (858) 597-9600
Facsimile: (858) 597-9601
E-mail: jfessenden@fisherphillips.com
psimpler@fisherphillips.com
lbushman@fisherphillips.com
ADECCO INC: Risher Granted Leave to File Fourth Amended TCPA Suit
-----------------------------------------------------------------
In the case, CLARENCE RISHER, Plaintiff v. ADECCO INC., et al.,
Defendants, Case No. 19-cv-05602-RS (N.D. Cal.), Judge Richard
Seeborg of the U.S. District Court for the Northern District of
California granted Risher's motion for leave to file a fourth
amended complaint.
In the putative class action, Plaintiff Risher alleges Defendants
Adecco and Mya Systems violated the Telephone Consumer Protection
Act, 47 U.S.C. Section 227 ("TCPA") by sending two text messages to
his cell phone that solicited him for possible employment through
Adecco, which operates a job placement service. Risher previously
amended his complaint three times to make relatively minor changes,
once as of right, and twice by stipulation or without opposition.
Risher now seeks leave to file a fourth amended complaint, which
defendants oppose, arguing undue delay, futility, and lack of good
cause to amend the scheduling order.
The deadline set in the scheduling order for amending pleadings
expressly applies to doing so "without seeking leave from the
Court." Where that deadline has passed, Rule 15 of the Federal
Rules of Civil Procedure applies. Under the liberal standard of
that Rule, "the court should freely give leave when justice so
requires."
Judge Seeborg finds that Risher's first claim for relief alleges
the Defendants violated the TCPA by sending text messages utilizing
an automatic telephone dialing system. This claim, he says, likely
has been fatally undermined by the Supreme Court's ruling in
Facebook, Inc. v. Duguid, 141 S.Ct. 1163 (2021). The proposed
Fourth Amended Complaint makes small wording changes to the claim
that appear to be an attempt to avoid the Duguid holding, under a
theory that has been rejected by other cases in this district,
e.g., Hufnus v. Donotpay, Inc., No. 20-cv-08701-VC (N.D. Cal. June
24, 2021) and Tehrani v. Joie De Vivre Hospitality, LCC, No.
19-cv-08168-EMC (N.D. Cal. Aug. 31, 2021).
Declining to permit the amendment on grounds of "futility,"
however, would serve no useful purpose. Judge Seeborg holds that
the existing complaint would remain operative, and the Defendants
would be required to bring a motion for judgment on the pleadings
or a motion for summary judgment to obtain a ruling that the claim
is in fact no longer viable after Duguid. With the filing of the
Fourth Amended Complaint being allowed, the Judge says, the
Defendants will have the opportunity to seek dismissal of the
claim, if they so choose.
Mr. Risher also seeks to amend the class definitions. First, Risher
wishes to recharacterize a previously alleged "do not call"
subclass as a separate class. Although it is unclear why it was not
always alleged as a separate class rather than a subclass, Judge
Seeborg holds that there is no undue prejudice to the Defendants
and the amendment is appropriate. Risher also seeks to remove
certain temporal limitations from the class definitions, which he
contends will resolve certain disputes over the appropriate scope
of discovery. Contrary to the Defendants' insistence, Judge Seeborg
says, there is nothing inherently improper about amending class
definitions in light of discovery issues, and the amendments are
not otherwise unduly prejudicial or futile.
Finally, Risher seeks to add a completely new claim for relief
advancing a theory that the text messages violate the TCPA's
restrictions on the use of an "artificial voice" or prerecorded
messages, given how the "chatbot" operates. While this novel theory
may ultimately fail as an unsupportable application of the
statutory language, Judge Seeborg says it would be premature to
reject it as futile in the context of applying Rule 15. The
Defendants may also be correct that the claim is one that Risher
could have asserted at any time since this action commenced, but
again the delay has not given rise to undue prejudice, in light of
the status of the litigation.
In light of the foregoing, Judge Seeborg granted the motion for
leave to amend. Risher will file a copy of the Fourth Amended
Complaint in the form as proposed in the motion. The Defendants
will file responsive pleadings within 30 days thereafter.
A full-text copy of the Court's Sept. 17, 2021 Order is available
at https://tinyurl.com/3vb4nmra from Leagle.com.
ANASTASIA BEVERLY: Mason Files ADA Suit in C.D. California
----------------------------------------------------------
A class action lawsuit has been filed against Anastasia Beverly
Hills, LLC, et al. The case is styled as Portia Mason, individually
and on behalf of all others similarly situated v. Anastasia Beverly
Hills, LLC, Does 1 to 10, inclusive, Case No. 2:21-cv-07483-AB-RAO
(C.D. Cal., Sept. 17, 2021).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Anastasia Beverly Hills, also known as ABH --
https://www.anastasiabeverlyhills.com/ -- is an American cosmetics
company best known for its eyebrow products.[BN]
The Plaintiff is represented by:
Thiago Merlini Coelho, Esq.
Binyamin I. Manoucheri, Esq.
Jasmine Behroozan, Esq.
WILSHIRE LAW FIRM
3055 Wilshire Boulevard 12th Floor
Los Angeles, CA 90010
Phone: (213) 381-9988
Fax: (213) 381-9989
Email: thiago@wilshirelawfirm.com
binyamin@wilshirelawfirm.com
jasmine@wilshirelawfirm.com
ANDEAVOR LOGISTICS: 8th Cir. Reverses Dismissal of Chase Suit
-------------------------------------------------------------
In the lawsuit entitled JoAnn Chase, et al., Plaintiffs-Appellants
v. Andeavor Logistics, L.P., et al., Defendants-Appellees, Case No.
20-1747 (8th Cir.), the United States Court of Appeals for the
Eighth Circuit reverses the dismissal of the Plaintiffs-Appellants'
amended complaint.
Andeavor Logistics L.P. and its Co-Defendants (collectively,
"Andeavor") own and operate the High Plains Pipeline System, a
500-mile oil pipeline that transports oil from North Dakota's
oil-rich Bakken region to a refinery in Mandan, North Dakota. In
1953, Andeavor's predecessor-in-interest obtained a 20-year
right-of-way from the Department of the Interior allowing the
pipeline to cross lands on the Fort Berthold Indian Reservation.
The right-of-way was renewed for successive 20-year terms in 1973
and 1995 before expiring in 2013.
Despite expiration, Andeavor continues to operate the pipeline
across a mixture of tribal lands and individually-owned allotments,
all held in trust by the United States. In 2017, Andeavor agreed
with the Mandan, Hidatsa, and Arikara Nation, known as the Three
Affiliated Tribes, to renew the right-of-way over tribal lands, and
to pay trespass damages for continued operation of the pipeline
after expiration. Andeavor then began renewal negotiations with
individual Indian landowners. Some did not agree to renewal and the
talks stalled.
In October 2018, certain landowners ("Allottees") filed this
putative class action against Andeavor in the United States
District Court for the Western District of Texas, seeking
compensatory and punitive damages for ongoing trespass and
injunctive relief requiring Andeavor to dismantle the pipeline. The
case was transferred to the District of North Dakota.
The district court granted Andeavor's motion to dismiss, concluding
the Allottees failed to exhaust administrative remedies with the
Bureau of Indian Affairs ("BIA"). The Allottees appeal. The parties
raise numerous complex issues regarding the right of individual
Indians to obtain trespass relief in federal court.
The Court of Appeals concludes that the case turns on issues
sufficiently within the primary jurisdiction of the BIA to warrant
stay, rather than dismissal, to give the BIA opportunity to take
further action.
Background Facts and Procedural History
Part of Andeavor's High Plains Pipeline System crosses the Fort
Berthold reservation in western North Dakota, home to the Three
Affiliated Tribes. Within reservation boundaries, the pipeline
crosses tracts of Tribal land, individually-owned Indian lands, and
jointly-owned lands, all held in trust by the BIA. The Indian
Right-of-Way Act of 1948 authorizes the Secretary of the Interior
to "grant rights-of-way for all purposes, subject to such
conditions as he may prescribe, over and across any lands now or
hereafter held in trust by the United States for individual Indians
or Indian tribes."
Andeavor set out to negotiate right-of-way renewals to resolve its
continuing trespass. At the Tribe's insistence, Andeavor refrained
from negotiating with individual landowners until it completed
negotiations with the Tribe. In February 2017, the Tribe and
Andeavor agreed to renew the right-of-way and settle past trespass
damages for Tribal land for roughly $2 million per acre. On Jan.
30, 2018, the BIA sent Andeavor a 10-Day Show-Cause Letter stating
the pipeline had been trespassing on individually-owned Indian
lands since the right-of-way expired in 2013.
On February 7, Andeavor informed the BIA that it was currently
negotiating with individual landowners to obtain their consent for
renewal. On April 10, the BIA asked the landowners to confirm that
good-faith negotiations were in progress. Many did. Counsel for the
Allottees requested that the BIA take no action to recover
possession or seek trespass remedies while negotiations continued.
The negotiations did not bear fruit. In October 2018, the Allottees
commenced this action in the Western District of Texas. The Amended
Complaint alleged continuing trespass under federal common law,
breach of the easement agreement, and unjust enrichment. They
sought various forms of relief including compensatory and punitive
damages, an accounting of profits, disgorgement, and an injunction
requiring Andeavor to cease operations, remove the pipeline, and
restore lands to their original conditions, as the easement
agreement and federal regulations require.
After transfer to the District of North Dakota, Andeavor moved to
dismiss on numerous grounds. The district court granted the motion
based on the Allottees failure to exhaust administrative remedies
under the BIA regulations. Alternatively, the court held that it
would require the Allottees to seek administrative remedies before
obtaining judicial review even if the regulations did not require
exhaustion. The court did not address Andeavor's remaining grounds
for dismissal.
The Allottees raise a host of issues in challenging the district
court's dismissal of their Amended Complaint. Andeavor defends the
judgment on numerous grounds.
Circuit Judge James B. Loken, writing for the Panel, notes that the
Court of Appeals reviewed de novo the grant of a Rule 12 motion to
dismiss, assuming all factual allegations in the pleadings are true
and viewing them in the light most favorable to the nonmoving
party, citing Wolfchild v. Redwood Cnty., 824 F.3d 761, 767 (8th
Cir.), cert. denied, 137 S.Ct. 447 (2016).
Failure to Exhaust Administrative Remedies
In general, the well-established doctrine of administrative
exhaustion requires a party to follow prescribed procedures for
obtaining administrative remedies before seeking judicial relief,
see Klaudt v. United States Dep't of Interior, 990 F.2d 409, 411
(8th Cir. 1993).
The district court noted that in Klaudt, which involved nonpayment
of tribal taxes for cattle grazing, the Court of Appeals held that
the clearly detailed administrative process and remedies must be
followed before seeking relief in the court system. Here, the
district court concluded, the Allottees did not exhaust these
mandatory procedures by appealing the grant of the 1993 easement.
As to the alleged holdover situation, the court ruled, the BIA is
apparently conducting its investigation and has not made a final
determination.
The Allottees argue the district court erred in dismissing the
Amended Complaint on exhaustion grounds because the BIA lacks the
authority to grant all the relief they seek, and administrative
exhaustion does not apply when an agency cannot grant the relief a
party seeks.
On appeal, both parties agree the Indian Right-of-Way Act and its
implementing regulations do not authorize the BIA to award the
Allottees administrative trespass remedies. Section 169.410 only
authorizes the BIA to seek administrative and judicial remedies on
behalf of individual Indian landowners.
Judge Loken holds that the district court erred in not considering
this exhaustion factor. The Allottees argue that lack of remedial
authority is dispositive. Andeavor counters that the agency
holdover process is not complete, that the administrative remedy in
itself is a remedy, and that it would be "untenable" if the case
was not dismissed and the BIA approved a right-of-way while the
Allottees were suing for trespass. Andeavor further notes the
regulations provide procedures the Allottees may follow to appeal
the BIA's decisions or its failure to act.
The Court of Appeals finds nothing in the Indian Right-of-Way Act,
25 U.S.C. Sections 323-28, or its implementing regulations, 25
C.F.R. pt. 169, authorizing the BIA to award the Allottees damages
or injunctive relief for Andeavor's alleged ongoing trespass. They
only appear to authorize the BIA to impose administrative sanctions
for a holdover grantee's trespass, including an order that the
grantee stop operating the pipeline, see Section 169.404(b)(3), and
to seek judicial remedies on behalf of individual Indian
landowners.
Accordingly, the Court of Appeals concludes the district court
erred in finding that the Allottees failed to exhaust required
administrative remedies. What is far less clear is whether in this
situation the agency's inability to provide all the remedies the
Allottees seek warrants the further conclusion that the district
erred in exercising its judicial discretion to require
non-mandatory exhaustion, Judge Loken observes.
The Primary Jurisdiction Alternative
As Andeavor argued in its Brief, exhaustion of administrative
remedies is not the only jurisdictional issue presented on this
record.
In their Reply Brief, the Allottees argue primary jurisdiction does
not apply because "a trespass dispute does not fall outside the
conventional competence of the courts" and because Congress granted
them a cause of action to enforce allotment rights in 25 U.S.C.
Section 345.
To put the primary jurisdiction issue in proper perspective, Judge
Loken points out that it is necessary to discuss in some detail two
additional aspects of the case: first, the historical background
underlying the Allottees' assertion they have a federal common law
claim for trespass on their individually owned Indian lands;
second, the unusual series of actions taken by the BIA after the
district court dismissed the Amended Complaint in April 2020.
A. Federal Common Law Claims by Indians.
Andeavor argues that the Court of Appeals lacks subject matter
jurisdiction because the Allottees do not have a federal common law
trespass claim. The Allottees argue the Court of Appeals has
federal question jurisdiction under 28 U.S.C. Section 1331 because
their trespass claims arise under federal common law.
In this case, the Court of Appeals sees no serious question of
subject matter jurisdiction because if the Allottees have a valid
claim for Andeavor's alleged trespass on Indian lands, without
question it is a claim under federal law. But the issue is whether
the Allottees' assertion of a federal common law cause of action
states a claim on which relief can be granted is a core issue that
at some point must be resolved by a federal court, Judge Loken
holds, adding that it is a complex issue.
Relying on the decisions in Oneida Indian Nation of N.Y. v. County
of Oneida, N.Y., 414 U.S. 661 (1974) (Oneida I), and Cnty. of
Oneida, N.Y. v. Oneida Indian Nation of N.Y., 470 U.S. 226, 234
(1985) (Oneida II), the Allottees argue that individual Indian
landowners have federal common law claims against trespassers like
Andeavor. But this case is distinguishable from Oneida in two
significant respects--the Allottees are not a tribe, like the
Oneida Nation, and the alleged source of their ownership interests
was federal statutory allotments, not necessarily Indian title,
Judge Loken holds.
The Allottees' argument is not clearly supported by the Supreme
Court's holding in Oneida I or Oneida II, as the Court of Appeals
expressly ruled in Wolfchild v. Redwood County, Judge Loken points
out.
Judge Loken agrees that the Panel's decision in Wolfchild does not
directly control the issue in this case because the plaintiffs in
Wolfchild were fee simple owners of the land in question, whereas
the Allottees are equitable owners of lands owned by the federal
government in trust. But in Oneida I, the Supreme Court
distinguished the Oneidas' claim at issue from the Indian landowner
claim in Taylor v. Anderson that did not raise a federal question.
Thus, while the specific issue in this case was not "addressed" in
Wolfchild, the Panel's reliance on its reasoning has a "direct
bearing" on whether the Allottees have the federal common law
rights they assert, or whether they must instead find an
alternative basis for their claims under federal law, Judge Loken
explains. The Court of Appeals' analysis in Wolfchild is certainly
open to interpretation, and the BIA's views as to whether the
distinction drawn in Oneida I applies to a right-of-way holdover
situation may be relevant and persuasive. So, the Court of Appeals
declines to decide the issue at this time.
B. Recent BIA Actions.
On July 2, 2020, after the Allottees submitted their initial Brief
on appeal, the Regional Director of the BIA's Great Plains Regional
Office (which covers North Dakota) sent a formal Notification of
Trespass Determination to Andeavor ("Notice"). The Notice stated
that the pipeline had been trespassing on 50 acres of
individually-owned trust lands for seven years, reflecting
Andeavor's lack of good faith negotiations, and therefore the
pipeline was no longer in the landowners' best interest. The BIA
ordered Andeavor to immediately cease pipeline use and pay treble
damages totaling $187.2 million within 30 days, a decision Andover
could appeal to the Interior Board of Indian Appeals (IBIA).
Andeavor appealed, arguing the Notice ignored that it was in
holdover status while negotiating with landowners, ignored its
substantial work to obtain fair-market value appraisals,
disregarded its record-setting offer of $66,000 per acre to the
landowners, and calculated damages based on inapplicable grazing
regulations.
Before the IBIA could rule, the Assistant Secretary for Indian
Affairs assumed jurisdiction over the appeal (as regulations
allow), vacated the Notice, and remanded to the Regional Director
to issue a new decision based on specified criteria. The Assistant
Secretary's order asserted that federal common law applied to
Andeavor's trespass. In later supplemental guidance, the Regional
Director was advised to rely only on 25 C.F.R. Section 169.410 and
common law remedies to address the trespass. The guidance stated
that federal common law authorizes the BIA to seek judicial
remedies, including compensatory damages, on behalf of Indian
landowners for trespass claims against right-of-way holdovers. It
cited 28 U.S.C. Section 2415(b), a statute of limitations that
requires actions by the United States or its agencies on behalf of
"a recognized tribe, band, or group of American Indians" to be
brought "within six years and ninety days after the right of action
accrues."
On remand, the Regional Director issued a Second Notice reducing
the damages award to just under $4 million, ordering Andeavor to
immediately cease operating the pipeline, and informing Andeavor
the BIA might petition the Department of Justice to seek common law
damages including an accounting of all rents and profits tied to
its trespass. Both Andeavor and the Allottees appealed the Second
Notice to the IBIA. On Jan. 14, 2021, the Assistant Secretary again
assumed jurisdiction over the appeal, affirmed the Second Notice in
its entirety, and declared it judicially reviewable as a final
agency action. The IBIA dismissed the parties' appeals.
On March 12, 2021, after the change in administrations, the Acting
Secretary of the Interior issued a Decision vacating all prior BIA
actions--from the Regional Director's First Notice to the Assistant
Secretary's January 14 Decision--and returning the matter to the
Regional Director with directions to:
1. take such action as is necessary to address Andeavor's
continued occupation of the expired right-of-way;
2. provide each of the interested parties with a full and fair
opportunity to be heard in this matter; and
3. issue a new decision, as may be necessary and appropriate.
Judge Loken states that he and the Panel are not aware of any
further administrative actions the BIA has taken in this dispute.
Nor are they aware the BIA has filed an action exercising its
claimed authority to assert federal common law trespass claims
against Andeavor on behalf of the Allottees. In April 2021, an
Andeavor subsidiary filed suit against the United States in the
District of North Dakota, seeking to set aside the Acting
Secretary's vacatur. See Complaint, Tesoro High Plains Pipeline Co.
v. United States, No. 1:21-cv-00090-DMT, ECF No. 1 (D.N.D. Apr. 23,
2021). That action is pending.
C. Primary Jurisdiction Analysis.
Taking these additional factors into account, the Court of Appeals
concludes the record on appeal and relevant authorities present a
situation where it is proper to invoke the discretionary judicial
doctrine of primary jurisdiction and stay the action pending
exercise of jurisdiction the agency has asserted, rather than
invoke discretionary exhaustion principles and dismiss the action,
which might delay determination of the Allottees' judicial claims
indefinitely depending on what action, if any, the BIA determines
is "necessary and appropriate."
First, the Allottees do not hold legal title to their lands, Judge
Loken holds. The federal government is the fee owner, holding the
allotted lands in trust for the Allottees' benefit. The BIA's role
as trustee is the core of the many protections Congress has
provided for these Indian lands. The BIA grants and administers
rights-of-way over lands held in trust, and it protects those lands
both from those invading without a right-of-way, and from grantees
that violate their right-of-way, including holdovers. Though the
Allottees' claims are cognizable in court, their sound
determination requires resolution of issues that have been placed
within the special competence of an administrative body and that
are already before the agency.
Second, the BIA has not simply been involved in this controversy,
it has taken action, now vacated, and the Acting Secretary of the
Interior has directed the Regional Director to "issue a new
decision, as may be necessary and appropriate." Because the BIA
cannot afford the Allottees the full relief they seek, the district
court need not stay this action until the administrative
proceedings conclude. But any action the BIA now takes will be of
significance in resolving the judicial dispute.
Third, the Supreme Court noted in McCarthy v. Madigan that even
where a controversy survives administrative review, exhaustion of
the administrative procedure may produce useful record for
subsequent judicial consideration, especially in a complex or
technically factual context. This factor supports invoking primary
jurisdiction here, at least for a limited time, Judge Loken notes.
Not only is the judicial controversy within the BIA's area of
expertise, the agency may have, or may be able to efficiently
develop, facts that may be relevant to one or more legal issues,
such as the extent to which the Allottees' rights as equitable
owners of Indian land now held in trust derive from unextinguished
aboriginal title as opposed to lands allocated to individual
Indians, not tribal rights to lands.
For these reasons, the Court of Appeals concludes that primary
jurisdiction, not exhaustion of BIA remedies, is the discretionary
doctrine that should be invoked in this case at this stage of the
proceedings. Ultimately, the key question is not whether federal
law supplies Allottees a cause of action for trespass on individual
Indian allotments, but whether there is a common law or statutory
claim they have standing to assert and if so, what is the source of
the law that will define whether continuing trespass is occurring
and what remedies are available to what parties that have rights in
the trust lands.
Judge Loken holds that the judicial process should be stayed to
give the BIA a further opportunity to address these issues. But
dismissal is not appropriate because the administrative process
will not resolve the Allottees' claims. Rather, the district court
should stay the action for a reasonable period of time to see what
action the agency may take. The court can then lift the stay, or
further suspend the judicial process depending on what action, if
any, the agency takes.
The Court of Appeals leaves the details of this process, including
the solicitation of views from many parties with disparate
interests, to the district court's discretion.
D. Remaining Issues.
In addition to the trespass claims in Count I of their Amended
Complaint, the Allottees asserted three additional claims: Breach
of Easement Agreement (Count II); Unjust Enrichment - Imposition of
Constructive Trust (Count III); and Punitive Damages (Count IV).
Because the case must be remanded and stayed, the Court of Appeals
declines to consider these issues at this time.
Among other reasons, the analysis of these issues would likely be
affected if the BIA brings a breach-of-contract claim on behalf of
the Allottees under the Right-of-Way Act, Judge Loken states. In a
breach-of-contract action involving a right-of-way over individual
trust allotments, the United States, as grantor, is an
indispensable party.
Conclusion
For these reasons, the judgment of the district court is reversed
and the case is remanded for further proceedings not inconsistent
with this opinion. The Allottees' motion to dismiss Robin
Fredericks as a plaintiff is denied.
A full-text copy of the Court's Opinion dated Sept. 13, 2021, is
available at https://tinyurl.com/4hpj3rz7 from Leagle.com.
AT&T MOBILITY: Vianu Class Cert. Filing Due Feb. 23, 2022
---------------------------------------------------------
In the class action lawsuit captioned as IAN VIANU and IRINA
BUKCHIN, on behalf of themselves and all others similarly situated,
v. AT&T MOBILITY LLC, Case No. 3:19-cv-03602-LB (N.D. Cal.), the
Hon. Judge Laurel Beeler entered an order approving the Plaintiffs
and AT&T stipulation as follows:
1. Elizabeth Blum and Dominic Gutierrez shall be substituted
in as named plaintiffs and proposed class representatives
in place of Irina Bukchin. Ms. Bukchin's claims are
dismissed without prejudice pursuant to Federal Rule of
Civil Procedure 41(a)(1)(A)(ii). If a class is certified
by the Court, the dismissal of Ms. Bukchin's claims will
not affect Ms. Bukchin's status as an absent class member.
Plantiff Ian Vianu will continue to be a named plaintiff
and proposed 13 representative in the case.
2. The Plaintiffs' proposed amended complaint shall be deemed
filed upon entry by the Court of this stipulated Order.
3. AT&T's deadline to file its Answer to the First Amended
Complaint shall be 30 days after the entry by the Court of
this stipulated Order.
4. The Court's previous rulings set forth in its Order
Denying Motion to Dismiss -- including but not limited to
its ruling on statutes of limitations and the discovery
rule -- apply to the newly added named plaintiffs as if
the motion to dismiss had been directed to them as well as
the originally named plaintiffs.
5. For purposes of appeal, or for any other purposes, the
briefs and supporting papers, together with the oral
argument, regarding AT&T's motion to dismiss and the
Court's order on that motion shall be treated as having
been filed with respect to Elizabeth Blum and Dominic
Gutierrez.
6. Nothing is intended to or constitutes a waiver of any
Party's appellate.
7. The briefing and hearing schedule for Plaintiffs' class
certification motion -- the current dates shall be
modified by approximately two months, as follows. All
other remaining deadlines shall remain unchanged.
Case Event Current Proposed New
Deadline Deadline
Last date to file motion Dec. 23, 2021 Feb. 23, 2022
for class certification
Opposition to motion for March 10, 2022 May 13, 2022
class certification
Reply in support of April 28, 2022 June 27, 2022
motion for class
certification
Hearing on motion for May 12, 2022 July 14, 2022
class certification/
Further Case Management
Conference
AT&T, is an American telecommunications company.
A copy of the Court's order dated Sept. 21, 2021 is available from
PacerMonitor.com at https://bit.ly/3Dhlr6X at no extra charge.[CC]
The Attorneys for the Plaintiffs and the Proposed Class, are:
Michael W. Sobol, Esq.
Roger N. Heller, Esq.
Daniel E. Seltz, Esq.
Avery S. Halfon, Esq.
LIEFF CABRASER HEIMANN & BERNSTEIN, LLP
275 Battery Street, 29th Floor
San Francisco, CA 94111-3339
Telephone: (415) 956-1000
Facsimile: (415) 956-1008
- and -
Daniel M. Hattis, Esq.
Paul Karl Lukacs, Esq.
HATTIS & LUKACS
400 108th Ave NE, Ste. 500
Bellevue, WA 98004
Telephone: (425) 233-8650
Facsimile: (425) 412-7171
The Attorneys for the Defendant AT&T Mobility LLC, are:
Sean A. Commons, Esq.
Alycia A. Degen, Esq.
Rara Kang, Esq.
Alexandria V. Ruiz, Esq.
SIDLEY AUSTIN LLP
555 West Fifth Street, Suite 4000
Los Angeles, CA 90013
Telephone: (213) 896-6000
Facsimile: (213) 896-6600
AXIOM MATERIALS: Denial of Arbitration in Arcos Suit Affirmed
-------------------------------------------------------------
In the lawsuit entitled ANDRES ARCOS, Plaintiff and Respondent v.
AXIOM MATERIALS, INC., Defendant and Appellant, Case No. G059763
(Cal. App.), the Court of Appeals of California, Fourth District,
Division Three, affirms the order denying Axiom's motion to compel
arbitration.
Axiom appeals from the trial court's order denying its motion to
compel arbitration of employment-related claims in a putative class
action suit filed by its former employee Andres Arcos. It is
undisputed Arcos signed an arbitration agreement when he began his
employment with Axiom. The dispute lies in the meaning of language
in the Agreement; specifically, the claim exclusion clause in
paragraph 3, which exempts from arbitration "worker's compensation
claims, and claims under any other statute that expressly prohibits
arbitration or waiver of statutory rights."
Based on this language, the trial court concluded most of Arcos'
claims were not subject to arbitration under the Agreement because
they were nonwaivable statutory claims. The court found Arcos'
remaining claims were arbitrable under the Agreement, but the court
stayed arbitration of those claims because they were derivative of
Arcos' nonarbitrable claims.
The Parties' Arbitration Agreement
Axiom, a California corporation located in Orange County, hired
Arcos as a shipping and receiving clerk in January 2019. When he
began working for Axiom, Arcos signed an arbitration agreement
presented by Axiom. The Agreement had 13 numbered paragraphs; the
first three are relevant in the case.
The first paragraph (Paragraph 1) is entitled "Arbitration of
Disputes, Waiver of Jury Trial and Applicable Rules." The second
paragraph (Paragraph 2) is a lengthy but non-exhaustive list of
claims covered by the Agreement. The title of Paragraph 3 of the
Agreement is "Claims Not Covered." It states, in pertinent part:
"Worker's compensation claims, claims for unemployment compensation
benefits, and claims under any other statute that expressly
prohibits arbitration or waiver of statutory rights are not covered
by this Agreement."
Paragraph 10 explains the Agreement constitutes "the entire
agreement between Employee and Company for the resolution of claims
covered by the Agreement." Arcos and a representative of Axiom
signed the Agreement under the statement: "Employee acknowledges
and agrees that he or she has reviewed, understood, and entered
into this agreement knowingly and voluntarily with the Company.
This agreement can only be changed or revoked by a written
agreement signed by both employee and the president of the
Company."
After working for Axiom for more than a year, Arcos resigned from
the Company in April 2020.
Complaint
In June 2020, Arcos filed a putative class action complaint against
Axiom on behalf of himself and "similarly situated" persons,
alleging six causes of action: (1) failure to pay overtime wages;
(2) failure to provide meal periods; (3) failure to permit rest
breaks; (4) failure to provide accurate itemized wage statements;
(5) failure to pay all wages due upon separation of employment and
within the required time; and (6) violations of the unfair
competition law.
Motion to Compel Arbitration and Opposition
Axiom moved the court to compel Arcos to arbitrate all of his
employment-related claims on an individual basis and to dismiss the
case. A copy of the Agreement signed by Arcos was attached as an
exhibit to Axiom's motion. Axiom argued the Agreement covered all
of Arcos' claims for wage and hour violations under the Labor Code
and unfair competition under the Business and Professions Code and
that he must submit them to arbitration.
Mr. Arcos opposed the motion. Arcos asserted he was not required
under the terms of the Agreement to arbitrate his claims concerning
sections 201, 202, 203, 210, 226 and 226.7. His argument focused on
Paragraph 3 of the Agreement and its language that "claims under
any other statute that expressly prohibits arbitration or waiver of
statutory rights are not covered." He contended this language was
unambiguous. He argued section 219 prohibited waiver of his claims
for violations of sections 201, 202, 203, 210, 226, and 226.7, and
therefore, they were excluded from the Agreement. Arcos implicitly
acknowledged his remaining claims, those based on sections 510 and
512 and the Business and Professions Code, were covered by the
Agreement. He asserted the claims covered by the Agreement were
derivative of his nonarbitrable claims and, therefore, should be
stayed under Code of Civil Procedure section 1282.2, pending the
outcome of his other claims.
Axiom filed a reply, urging the court to reject Arcos' reading of
the Agreement's language. Axiom argued Paragraph 2 of the Agreement
specifically included Labor Code claims and that Arcos'
interpretation of Paragraph 3 would remove all Labor Code claims
from the scope of the Agreement, "impermissibly" rendering
Paragraph 2 "entirely meaningless." Axiom asserted the court should
reject Arcos' reading of Paragraph 3 because all of the Agreement's
provisions must be given effect. Relying on rules of contract
interpretation, Axiom argued the specific provision in Paragraph 2
expressly including Labor Code claims as covered by the Agreement
controlled over the general provision in Paragraph 3 excluding
nonwaivable statutory claims.
The Trial Court's Ruling
After a hearing, the trial court issued a minute order denying
Axiom's motion to compel arbitration as to Arcos' claims for
violations of sections 201, 202, 203, 210, 226, and 226.7. The
court granted Arcos' stay of arbitration as to his remaining
claims.
Accordingly, the motion to compel arbitration of Arcos' individual
claims for violations of sections 201, 202, 203, 210, 226 and 226.7
is denied.
Discussion
Axiom asserts the trial court erroneously interpreted the Agreement
and the court's order should be reversed.
As the issue on appeal is a matter of contract interpretation
without extrinsic evidence, it is subject to the Appellate Court's
independent review, notes Presiding Justice Kathleen E. O'Leary,
writing for the Panel.
Giving the language used in Paragraph 3 its ordinary and usual
meaning (Lloyd's Underwriters v. Craig & Rush, Inc. (1994) 26
Cal.App.4th 1194, 1197), the provision is reasonably read to mean
nonwaivable statutory claims are excluded from the Agreement, as
well as claims under statutes that prohibit arbitration, Judge
O'Leary notes.
Axiom proposes Paragraph 3 "should be construed to refer to
statutory claims where arbitration is not permitted, not all
statutory claims that contain non-waivable substantive rights." The
Appellate Court disagrees. Judge O'Leary explains that if Axiom
intended to exclude from the Agreement only statutory claims where
arbitration is prohibited, then it could have easily drafted
Paragraph 3 to state such by simply omitting the words "or waiver"
from the provision. But Axiom did not, and the Appellate Court says
it will not rewrite this contract provision for them.
Judge O'Leary points out that the meaning of this provision in
Paragraph 3 is plain and unambiguous; a claim under a statute that
expressly prohibits arbitration or expressly prohibits waiver of
statutory rights is not covered by the Agreement, citing Melamed v.
City of Long Beach (1993) 15 Cal.App.4th 70, 79. Under this
reading, Arcos' claims concerning sections 201, 202, 203, 210, 226,
and 226.7 are exempt from the Agreement as they are nonwaivable
statutory claims pursuant to section 219, the Judge holds.
Axiom contends such an interpretation of Paragraph 3 renders the
majority of Paragraph 2 meaningless "because virtually all of the
federal and California employment laws listed" in Paragraph 2
"involve substantive rights that cannot be waived." The Appellate
Court disagrees. Judge O'Leary explains that Paragraph 2 is not
rendered meaningless or mere surplusage as Axiom contends by
Paragraph 3. Not all claims included in Paragraph 2 are excluded in
Paragraph 3. Judge O'Leary notes Arcos' claims under sections 510
and 512 and Business and Professions Code sections 17200, et seq.,
are included in the Agreement under Paragraph 2 and are not
excluded by Paragraph 3.
Judge O'Leary points out that the Appellate Court is mindful that a
contract is to be read as a whole, so as to give effect to every
part, if reasonably practicable, each clause helping to interpret
the other. Reading the contract as a whole does not change the
Appellate Court's interpretation of Paragraph 3. Any consequence of
this interaction between the paragraphs unintended by Axiom is not
a reason to stray from the usual and ordinary meaning of the
language stated in the agreement, Judge O'Leary states.
Judge O'Leary also points out that nor does the Appellate Court
agree with Axiom's contention that Paragraph 2 controls over
Paragraph 3 because it is the more specific clause. Paragraph 3 is
specific in that it states which claims are not covered, and as
discussed, it does not conflict with Paragraph 2, she notes. She
adds that the parties agreed all nonwaivable statutory claims were
not covered by the Agreement.
Applying the plain language of Paragraph 3, the Appellate Court
concludes the parties did not agree to arbitrate Arcos' claims
concerning sections 201, 202, 203, 210, 226, and 226.7. All of
these code sections are contained within article 1 of the Labor
Code and section 219, subdivision (a), prohibits waiver of the
provisions in article 1. Axiom does not disagree or otherwise
assert they are waivable statutory claims. Thus, the trial court
properly denied Axiom's motion to compel Arcos' claims regarding
these sections.
Disposition
The order is affirmed. Arcos will recover his costs on appeal.
FYBEL, J. and GOETHALS, J., concurs.
A full-text copy of the Court's Opinion dated Sept. 13, 2021, is
available at https://tinyurl.com/yv7d458s from Leagle.com.
AEGIS Law Firm, Kashif Haque -- khaque@aegislawfirm.com -- Samuel
A. Wong -- swong@aegislawfirm.com -- Jessica L. Campbell --
jcampbell@aegislawfirm.com -- and Fawn F. Bekam --
fbekam@aegislawfirm.com -- for the Plaintiff and Respondent.
Honigman and Matthew S. Disbrow -- mdisbrow@honigman.com -- for the
Defendant and Appellant.
BANK OF NEW YORK: Averts Crypto Fraud Conspiracy Class Action
-------------------------------------------------------------
David McAfee, writing for Bloomberg Law, reports that Bank of New
York Mellon Corp. and a group of individuals from Florida convinced
a federal court in New York to dismiss them from a proposed class
action alleging they aided and abetted a purported cryptocurrency
fraud perpetrated by OneCoin Ltd.
Donald Berdeaux and Christine Grablis, investors in OneCoin
offerings, sued it after allegedly losing hundreds of thousands of
dollars in what they allege was a Ponzi scheme masquerading as a
cryptocurrency.
The plaintiffs, hoping to represent other investors harmed by the
scheme between April 2014 and March 2018, also sued BNYM, as well
as Mark Scott, Nicole Huesmann. [GN]
BECTON DICKINSON: Discusses Dismissal of Securities Class Suit
--------------------------------------------------------------
Shearman & Sterling LLP, in an article for Mondaq, reports that on
September 15, 2021, Judge Stanley R. Chesler of the United States
District Court for the District of New Jersey dismissed a putative
class action against a medical device manufacturer (the "Company")
and certain of its officers alleging violations of Sections 10(b)
and 20(a) of the Securities Exchange Act of 1934. Industriens
Pensionsforsikring A/S v. Becton Dickinson & Co., No. 20-cv-02155
(D.N.J. Sept. 15, 2021). Plaintiff alleged the Company made
misleading statements concerning regulatory approval of one of its
medical devices, its regulatory compliance program, and financial
projections. The Court dismissed plaintiff's claims without
prejudice in an unpublished opinion confirming the many challenges
to pleading securities fraud claims based on alleged
misrepresentations regarding U.S. Food and Drug Administration
("FDA") approval processes.
The Company's infusion pumps—external medical devices controlled
by software that deliver fluids to a patient—received approval
from the FDA in 1995. Over the years, the infusion pumps were the
subject of numerous safety concerns and recalls that prompted
periodic changes to the software controlling the pumps. On October
25, 2017, the FDA released guidance clarifying when software
changes made to existing devices require FDA approval. In November
2017, the Company determined that an application for changes to its
infusion pump products to the FDA was required and submitted one.
After learning that the FDA was not going to accept its November
2017 application, including because there had been previous updates
without regulatory approval, the Company withdrew the application.
Following an FDA inspection of the Company's devices in late 2018,
the Company concluded that its prior software modifications
required but never received FDA approval. The Company promptly
filed a "catch-up" application covering the unapproved changes. On
February 6, 2020, the Company disclosed that the FDA required the
Company to obtain clearance for historical software changes and
that the Company was required to halt all sales of its infusion
pumps.
In granting the motion to dismiss, the Court described "the heart"
of plaintiff's allegations as the alleged failure to disclose
either that the FDA required or would require an application be
filed and approved before the Company could continue to market and
sell infusion pumps or that the Company already determined approval
was required. According to plaintiff, the infusion products
suffered from "pervasive" defects that the Company tried to fix
without FDA clearance, which placed the products at imminent risk
of adverse FDA action.
Consistent with a long line of precedent assessing alleged
misstatements by medical device and pharmaceutical companies, the
Court emphasized that defendants did not have any obligation to
predict whether the FDA would conclude that approval was required.
While plaintiff acknowledged as much, it alleged that defendants
subjectively believed an application was required and that the
failure to disclose this belief was a misleading omission. The
Court rejected this, however, holding that the allegations did not
support the contention and that there was no allegation the FDA had
made clear to the Company that new applications were required.
With respect to the specific misstatements, the Court first
rejected plaintiff's assertion that the Company's description of
its software changes as "upgrades," "enhancements," and
"improvements" was misleading because they in fact were
remediations to address threats to patient safety. The Court held
that plaintiff's "disagreement with th[]e terms [used by the
Company] amounts to mere pedantry." The Court also noted that the
statements must be evaluated in context of all available
information and that investors would have been aware there were a
number of problems with the infusion product that created obvious
potential risks of regulatory action.
Second, the Court held that warnings by the Company that failure to
comply with FDA requirements might impact the sale of products was
not misleading based on the allegation that the risk had already
materialized. According to the Court, the disclosed risk was an
agency determination of non-compliance, which had not happened as
of the time of the risk disclosure. In a similar vein, the Court
rejected plaintiff's argument that the Company's statement
regarding "substantial progress in its compliance efforts" was
misleading because "no reasonable investor could rely on such a
simple and generic assertion about [the Company's] compliance
efforts."
Third, the Court rejected plaintiff's claims based on the Company's
projected revenue because the challenged statements were
forward-looking, and the Company was "not obligated to predict that
the FDA would take regulatory action." The Court also held that
facts pleaded in the Complaint did not suffice to allege the
Company lacked a reasonable basis for the projections.
Finally, the Court rejected plaintiff's allegations as to purported
misstatements in a product recall notice that advised users that
the Company would undertake "comprehensive education and support"
concerning software issues and patch "an upcoming software
release." The Court held that plaintiff failed to plead facts
indicating "that the devices that had been delivered and installed
were or became unusable."
The Court also held that the Complaint failed to plead facts giving
rise to a strong inference of scienter as required by the PSLRA.
First, the Court rejected as "conclusory" the allegation that the
individual defendants "knew or had access to information
reflecting" that the infusion pump devices did not meet FDA
requirements. Allegations attributed to confidential witnesses
could not be stretched far enough to reach the individual
defendants, according to the Court.
As additional support for an inference of scienter, plaintiff
invoked the "core operations doctrine," pointing to defendants'
positions as high-ranking executives and the importance of the
infusion products to the Company's business, and pointed to stock
sales by two of the individual defendants. The Court noted that
allegations based on the core operations doctrine are routinely
rejected and that, in any event, the infusion products were not a
key driver of the Company's total revenue. With respect to the
stock sales, the Court acknowledged that stock sales pursuant to a
10b5-1 plan entered into during the alleged class period did not
"immunize those sales from impacting the scienter analysis."
However, the individual defendants sold only 14% and 18% of their
holdings and continued to maintain significant holdings. The Court
also held that the timing of the sales was not unusual and that the
lack of stock sales by all individual defendants cut against the
inference that there was a "coordinated attempt to defraud the
shareholders."
Industriens Pensionsforsikring A/S v. Becton Dickinson & Co. [GN]
BLACK HORSE: Court Ruling in BIPA Class Action Lawsuit Discussed
----------------------------------------------------------------
Gerald L. Maatman, Jr., Thomas E. Ahlering, Alex W. Karasik, and
Sarah Bauman, Esq., of Seyfarth Shaw LLP, disclosed that on
September 17, 2021, the Illinois Appellate Court issued its
highly-anticipated decision in Tims v. Black Horse Carriers, Inc.,
2021 IL App (1st) 200563 (1st Dist. Sept. 17, 2021), on whether a
one-year or five-year statute of limitations period applies to
claims under the Biometric Information Privacy Act, 740 ILCS 14/15
("the BIPA") The Illinois Appellate Court's holding was two-fold --
a one-year limitations period governs actions brought under
sections 15(c) and (d) of the BIPA, while claims under sections
15(a), (b), and (e) are subject to the catch-all five-year
limitations period.
The ruling in Tims is sure to be appealed to the Illinois Supreme
Court. That being said, it has the potential to be a game-changer
for BIPA class action litigation, and likely the plaintiffs' bar
will aggressively push for the five-year statute of limitations
when pursing class-wide relief.
Case Background
In March 2019, Plaintiff ("Plaintiff") filed a class action
complaint claiming that Black Horse Carriers, Inc.'s ("Defendant")
timekeeping practices, which involved the scanning and storing of
employees' fingerprints, violated the BIPA. Id. at 5. The first
count of the complaint asserted that Defendant violated section
15(a) of the BIPA in failing to institute, maintain, and adhere to
a retention schedule for biometric data. Id. at 7. The second and
third counts alleged that Defendant violated sections 15(b) and
(d), respectively, by obtaining their employees' biometric data and
disclosing it to third-parties without first obtaining their
written, informed consent. Id. Although Plaintiff did not allege
claims under sections 15(c) or (e), those provisions prohibit the
sale of a person's biometric data for a profit (740 ILCS 14/15(c)),
and impose a duty of reasonable care in storing and protecting
biometric data from disclosure (id. at 14/15(e)).
In June 2019, Defendant filed a motion to dismiss on the ground
that Plaintiff filed the complaint outside of the applicable
statute of limitations period. Id. at 8. Defendant argued that the
one-year limitations period prescribed by 735 ILCS 5/13-201 applied
to Plaintiff's claims because the BIPA's main concern is privacy
protection. Plaintiff countered that the five-year catch-all
limitations period prescribed by 735 ILCS 5/13-205 covered
Plaintiff's claims, in that a "publication element" was required
for a claim to be covered by section 13-205 -- an element which,
according to Plaintiff, the BIPA clearly lacked. Id. 9.
In September 2019, the trial court denied the motion to dismiss.
Id. at 11. It held that section 13-201 did not apply because
Plaintiff alleged a violation of the Act itself, rather than a
general violation of privacy. Id. As such, the trial court opined
that a five-year limitations period applied to Plaintiff's claims.
Id. The trial court did not address the issue of when Plaintiff's
claims accrued -- upon Plaintiff's first finger scan vs.
Plaintiff's last finger scan -- because the complaint was timely
filed under either scenario. Id. at 10.
Defendant then sought an appeal to the Illinois Appellate Court for
the First District.
The Appellate Court's Decision
At issue in the appeal was the question of whether a one or
five-year statute of limitations period applies to the BIPA. First,
the Appellate Court noted the "sole concern" in determining which
limitations period applies was the intent of the legislature. Id.
at 19. Given the BIPA's silence on the issue, the Appellate Court
turned to the language of section 13-201, which establishes a
one-year limitation period for "[a]ctions for slander, libel, or
for publication of matter violating the right of privacy." Id. at
20. Relying on its decision in Benitez v. KFC National Management
Co., 305 Ill. App. 3d 1027, 1033 (1999), the Appellate Court
explained that Illinois trial courts have recognized two types of
privacy interests in the right to privacy -- secrecy and seclusion
-- and held that section 13-201 applies only to those claims
premised on the right to secrecy, such as false-light publicity and
the appropriation of the name or likeness of another. Id. at 21.
The Appellate Court also noted the language of section 13-205,
which "provides for a five-year limitation period for, in relevant
part, 'all civil actions not otherwise provided for.'" Id. at 22.
In addition, the Appellate Court highlighted the various "duties"
enforced by the BIPA, citing the Illinois Supreme Court's landmark
decision in Rosenbach v. Six Flags Entertainment Corp., 2019 IL
123186, 1 (2019), which held in pertinent part that a violation of
the BIPA causes an individual's "biometric privacy [to] vanish[]
into thin air." Id. at 25 (citations and quotations omitted). The
Appellate Court reasoned that at this point, "[t]he precise harm
the Illinois legislature sought to prevent is then realized." Id.
Applying these principles to the question at issue, the Appellate
Court concluded that the section 13-201 one-year limitations period
covers only privacy actions in which publication is an element or
an "inherent part of the action." Id. at 29. The Appellate Court
did not address the legislative history of the BIPA, because it
could answer the certified question "based on the relevant
statutory language, which is ambiguous." Id. at 35. Indeed, the
Appellate Court reasoned that the legislature did not intend for
section 13-201 to include all privacy actions, in that it "would
have written something like 'actions for slander, libel or
privacy,'" or used "broad language rather than the narrower 'for
publication.'" Id.
Accordingly, the Appellate Court found that the section 13-201
one-year statute of limitations governs only those actions brought
under sections 15(c) and (d) of the BIPA. Id. at 30, 32. It
explained that the BIPA imposes various duties that are separate
and distinct from one another. Id. at 30. While each of the duties
set forth under sections (a)-(e) "concern privacy," the Appellate
Court reasoned that a private entity could violate sections (a),
(b), or (e) "without having to allege or prove that the defendant .
. . published or disclosed any biometric data." Id. at 31. Thus,
any such action would not be one "'for publication of matter
violating the right of privacy.'" Id. (quoting 735 ILCS 5/13-201).
Conversely, the Appellate Court held that the "publication or
disclosure of biometric data is clearly an element of an action
under" sections 15(c) and (d). Id. at 32. It opined that, to the
extent (c) and (d) prohibit the disclosure or sale of biometric
data, these sections "entail[] publication, conveyance, or
dissemination of such data." Id. at 32.
In sum, the Appellate Court held that a one-year limitations period
pursuant to 13-201 governs actions under sections 15(c) and (d) of
the BIPA, while a five-year statute of limitations pursuant to
section 13-205 applies to sections 15(a), (b), and (e). Id. at 35.
Takeaways For Employers
While the ruling in Tims v. Black Horse Carrier has the potential
to significantly limit Illinois employers' liability under the BIPA
in some respects, the plaintiffs' bar will likely use this decision
to continue to push for a five-year damages period relative to
sections 15(a), (b), and (e). At the same time, given the stakes at
issue, a further appeal to the Illinois Supreme Court is virtually
certain. Nonetheless, employers should be extra cautious in their
compliance with those requirements that do concern "publicity" --
i.e., sections 15(a), (b), and (e). They should consider
establishing policies that enable employees to give their express,
written consent before scanning their fingerprints or otherwise
furnishing their biometric data to their employers. Further,
employers should ensure that such biometric data is destroyed upon
an employee's termination or resignation with the company; have a
widely-accessible policy regarding the destruction and retention of
biometric information; and exercise heightened caution when storing
any biometric data within their possession. [GN]
BLACK HORSE: Ill. App. Answers Certified Question in Tims Suit
--------------------------------------------------------------
In the case, JOROME TIMS and ISAAC WATSON, Individually and on
Behalf of All Others Similarly Situated, Plaintiffs-Appellees v.
BLACK HORSE CARRIERS, INC., Defendant-Appellant, Case No. 1-20-0563
(Ill. App.), the Appellate Court of Illinois for the First
District, Sixth Division, issued an Opinion answering the certified
question from the circuit court: whether the limitation period in
section 13-201 or section 13-205 of the Code of Civil Procedure
applies to claims under the Biometric Information Privacy Act.
Background
The case concerns a class action brought by Plaintiffs Jorome Tims
and Isaac Watson against Defendant Black Horse under the Biometric
Information Privacy Act (Act). Plaintiff Tims filed his class
action complaint in March 2019, raising claims under section 15 of
the Act. The complaint alleged that Tims worked for defendant from
June 2017 until January 2018. It alleged that defendant scanned and
was still scanning the fingerprints of all employees, including the
Plaintiff, and was using and had used fingerprint scanning in its
employee timekeeping. The "Defendant continues to collect, store,
use, and disseminate individuals' biometric data in violation of
the" Act.
All counts alleged that the Defendant had violated and was
violating the Act by not (a) properly informing the Plaintiff and
other employees of the purpose and length of the Defendant's
storage and use of their fingerprints; (b) receiving a written
release from the Plaintiff and other employees to collect, store,
and use their fingerprints; (c) providing a retention schedule and
guidelines for destroying the fingerprints of Plaintiff and other
employees; or (d) obtaining consent from the Plaintiff and other
employees to disclose or disseminate their fingerprints to third
parties.
The first count alleged that the Defendant violated section 15(a)
by failing to institute, maintain, and adhere to a retention
schedule for biometric data. The second count alleged that it
violated section 15(b) by failing to obtain informed written
consent and release before obtaining biometric data. The third
count alleged that it violated section 15(d) by disclosing or
disseminating biometric data without first obtaining consent. Each
count sought a declaratory judgment, injunctive relief, statutory
damages for each violation of the Act, and attorney fees and
costs.
The Defendant appeared and, in June 2019, filed a motion to dismiss
under section 2-619 of the Code (735 ILCS 5/2-619 (West 2018)),
alleging that the complaint was filed outside the limitation
period. The motion noted that the Act itself has no limitation
provision and argued that the one-year limitation period for
privacy actions under Code section 13-201 applies to causes of
action under the Act because the Act's purpose is privacy
protection.
Plaintiff Tims responded to the motion to dismiss, arguing that the
Act's purpose is to create a prophylactic regulatory system to
prevent or deter security breaches regarding biometric data. The
Plaintiff argued that, in the absence of a limitation period in the
Act, the 5-year period in section 13-205 for all civil actions not
otherwise provided for should apply to the Act. He argued that the
one-year period in section 13-201 does not govern all privacy
claims but only those privacy claims with a publication element,
while the Act does not have a publication element. Plaintiff noted
that the Defendant's motion did not claim destruction or deletion
of the Plaintiff's biometric information so that the alleged
violations of the Act regarding plaintiff were ongoing or
continuing.
The Defendant replied in support of its motion to dismiss, arguing
that a privacy claim involving publication as provided in section
13-201 need not require publication as an element. It argued that
publication for purposes of section 13-201 consists of disclosure
to any third party and that the Act involves publication because it
prevents the disclosure or publication of biometric information.
The Defendant argued that adopting the Plaintiff's argument would
entail applying section 13-201 to the provisions in the Act
requiring publication and section 13-205 to the provisions that did
not require publication. Lastly, the Defendant argued that there
was no ongoing violation because the alleged violation occurred
when the Plaintiff's fingerprints were initially scanned for the
Defendant's timekeeping system without his written release and the
subsequent fingerprint scannings as he clocked into and out of work
were merely continuing ill effects from that violation.
In September 2019, the trial court denied the Defendant's motion to
dismiss. Noting that the Plaintiff Tims was claiming that the
Defendant violated the Act, rather than claiming a general invasion
of his privacy or defamation, the court found section 13-201
inapplicable and instead applied the catchall limitation provision
in section 13-205 to the Act, which did not have its own limitation
period. The complaint was therefore timely, as it was filed within
five years of the plaintiff's claim accruing, whether that was at
the beginning or the end of his employment by the Defendant.
Later in September 2019, the complaint was amended to add Isaac
Watson as a Plaintiff, alleging that Watson was employed by
defendant from December 2017 until December 2018.
In December 2019, the Defendant moved for reconsideration of the
denial of its motion to dismiss, reiterating its argument that
section 13-201 applies to the Act because both statutes concern the
right to privacy. The motion also asked the court to certify to
this court the question of which limitation period applies to the
Act. The Plaintiffs responded, arguing that reconsideration and
certification were unnecessary, as the denial of the motion to
dismiss was not erroneous.
On Feb. 26, 2020, the trial court denied reconsideration but
certified the question of whether the limitation period in section
13-201 or section 13-205 applies to claims under the Act.
Analysis
The trial court has certified to the Appellate Court the question
of whether the one-year limitation period in section 13-201 or the
five-year limitation period in section 13-205 governs claims under
the Act. Defendant and amicus the Illinois Chamber of Commerce
contend that the Act concerns privacy and section 13-201 governs
privacy actions. The Plaintiffs contend that section 13-201 governs
privacy actions only where publication is an element and that
publication is not an element of actions under the Act, so that the
default limitation period of section 13-205 should apply.
An appeal pursuant to Rule 308 on certified questions presents a
question of law subject to de novo review.
The Appellate Court finds from the language of section 13-201
including actions "for publication of matter violating the right of
privacy" and from its decision in Benitez that section 13-201 does
not encompass all privacy actions but only those where publication
is an element or inherent part of the action. Had the legislature
intended to include all privacy actions, it would have written
something like "actions for slander, libel, or privacy" or "actions
for slander, libel or violations of the right of privacy."
Similarly, had the legislature intended to include any privacy
action that merely concerns or pertains to publication, it would
have used such broad language rather the narrower "for
publication." Logically, an action for something has that thing as
a necessary part or element of the action.
Turning to the Act, the Appellate Court explains that section 15
imposes various duties upon which an aggrieved person may bring an
action under section 20. Though all relate to protecting biometric
data, each duty is separate and distinct. A private entity could
violate one of the duties while adhering to the others, and an
aggrieved person would have a cause of action for violation of that
duty. Moreover, as section 20 provides that a "prevailing party may
recover for each violation," a plaintiff who alleges and eventually
proves violation of multiple duties could collect multiple
recoveries of liquidated damages.
While all these duties concern privacy, the Appellate Court finds
that at least three of them have absolutely no element of
publication or dissemination. A private party would violate section
15(a) by failing to develop a written policy establishing a
retention schedule and destruction guidelines, section 15(b) by
collecting or obtaining biometric data without written notice and
release, or section 15(e) by not taking reasonable care in storing,
transmitting, and protecting biometric data. A plaintiff could
therefore bring an action under the Act alleging violations of
section 15(a), (b), and/or (e) without having to allege or prove
that the defendant private entity published or disclosed any
biometric data to any person or entity beyond or outside itself.
Stated another way, an action under section 15(a), (b), or (e) of
the Act is not an action "for publication of matter violating the
right of privacy."
Conversely, publication or disclosure of biometric data is clearly
an element of an action under section 15(d) of the Act, which is
violated by disclosing or otherwise disseminating such data absent
specified prerequisites such as consent or a court order. Section
15(c) similarly forbids a private party to "sell, lease, trade, or
otherwise profit from" biometric data, which entails a publication,
conveyance, or dissemination of such data. In other words, an
action under section 15(c) or (d) is an action "for publication of
matter violating the right of privacy."
The Appellate Court, therefore, finds that section 13-201 governs
actions under section 15(c) and (d) of the Act while section 13-205
governs actions under sections 15(a), (b), and (e) of the Act. As
it is answering the certified question based on the relevant
statutory language, which is not ambiguous, the Appellate Court
need not resort to, and will not address, aids of construction such
as legislative history.
Conclusion
Accordingly, the Appellate Court answers the certified question:
Code section 13-201 governs actions under section 15(c) and (d) of
the Act, and section 13-205 governs actions under section 15(a),
(b), and (e) of the Act. 740 ILCS 14/15 (West 2018). The Appellate
Court remands the cause to the circuit court for further
proceedings consistent with its Opinion.
A full-text copy of the Court's Sept. 17, 2021 Opinion is available
at https://tinyurl.com/3hkd5xnn from Leagle.com.
David M. Schultz --dschultz@hinshawlaw.com -- John P. Ryan --
jryan@hinshawlaw.com -- Adam R. Vaught -- avaught@hinshawlaw.com --
and Louis J. Manetti Jr. -- LManetti@hinshawlaw.com -- of Hinshaw &
Culbertson LLP, in Chicago, Illinois, for the Appellant.
Ryan F. Stephan -- rstephan@stephanzouras.com -- James B. Zouras --
jzouras@stephanzouras.com -- and Catherine T. Mitchell --
cmitchell@stephanzouras.com -- of Stephan Zouras, LLP, in Chicago,
Illinois, for the Appellees.
Melissa A. Siebert -- masiebert@shb.com -- and Matthew C. Wolfe --
mwolfe@shb.com -- of Shook, Hardy & Bacon LLP, in Chicago,
Illinois, for amicus curiae Illinois Chamber of Commerce, Amicus
Curiae.
BOSTON BEER: Kessler Topaz Reminds of November 15 Deadline
----------------------------------------------------------
The law firm of Kessler Topaz Meltzer & Check, LLP on Sept. 22
disclosed that a securities fraud class action lawsuit has been
filed in the United States District Court for the Southern District
of New York against The Boston Beer Company, Inc. (NYSE: SAM)
("Boston Beer") on behalf of those who purchased or acquired Boston
Beer securities between April 22, 2021 and September 8, 2021,
inclusive (the "Class Period").
Deadline Reminder: Investors who purchased or acquired Boston Beer
securities during the Class Period may, no later than November 15,
2021, seek to be appointed as a lead plaintiff representative of
the class. For additional information or to learn how to
participate in this litigation please contact Kessler Topaz Meltzer
& Check, LLP: James Maro, Esq. (484) 270-1453; toll free at (844)
887-9500; via e-mail at info@ktmc.com; or click
https://www.ktmc.com/the-boston-beer-company-class-action-lawsuit?utm_source=PR&utm_medium=link&utm_campaign=boston_beer
Boston Beer is a high-end alcoholic beverage company that produces
hard seltzer, malt beverages, and hard cider at its cidery and
under contractual arrangements at other brewery locations.
The Class Period commences on April 22, 2021, when Boston Beer
announced its first quarter 2021 financial results. The press
release also provided full-year 2021 earnings per share guidance,
estimated to be between $22.00 and $26.00, an increase from the
previously communicated range of between $20.00 and $24.00. The
complaint alleges that Boston Beer failed to disclose that hard
seltzer sales were decelerating.
The truth began to emerge on July 22, 2021. After the market
closed, Boston Beer reduced its full year 2021 guidance, expecting
earnings per share between $18 and $22, down from a prior range of
$22 and $26. Boston Beer cited softer-than-expected sales in the
hard seltzer category and overall beer industry and also stated
that it had "overestimated the growth of the hard seltzer category
in the second quarter." Following this news, Boston Beer's share
price fell $246.54, or 26%, to close at $701.00 per share on July
23, 2021.
Then, on September 8, 2021, after the market closed, Boston Beer
withdrew its 2021 financial guidance, citing decelerating sales of
hard seltzer products. Boston Beer also stated that it "expects to
incur hard seltzer-related inventory write-offs, shortfall fees
payable to third party brewers, and other costs" for the remainder
of fiscal 2021. Following this news, Boston Beer's share price fell
$21.09, or 3.7%, to close at $538.31 per share on September 9,
2021.
The complaint alleges that throughout the Class Period, the
defendants failed to disclose to investors that: (1) Boston Beer's
hard seltzer sales were decelerating; (2) as a result, Boston Beer
was reasonably likely to incur inventory write-offs; (3) Boston
Beer was reasonably likely to incur shortfall fees payable to third
party brewers; (4) as a result of the foregoing, Boston Beer's
financial results would be adversely impacted; and (5) as a result
of the foregoing, the defendants' positive statements about the
company's business, operations, and prospects were materially
misleading and/or lacked a reasonable basis.
Boston Beer investors may, no later than November 15, 2021, seek to
be appointed as a lead plaintiff representative of the class
through Kessler Topaz Meltzer & Check, LLP or other counsel, or may
choose to do nothing and remain an absent class member. A lead
plaintiff is a representative party who acts on behalf of all class
members in directing the litigation. In order to be appointed as a
lead plaintiff, the Court must determine that the class member's
claim is typical of the claims of other class members, and that the
class member will adequately represent the class. Your ability to
share in any recovery is not affected by the decision of whether or
not to serve as a lead plaintiff.
Kessler Topaz Meltzer & Check, LLP prosecutes class actions in
state and federal courts throughout the country involving
securities fraud, breaches of fiduciary duties and other violations
of state and federal law. Kessler Topaz Meltzer & Check, LLP is a
driving force behind corporate governance reform, and has recovered
billions of dollars on behalf of institutional and individual
investors from the United States and around the world. The firm
represents investors, consumers and whistleblowers (private
citizens who report fraudulent practices against the government and
share in the recovery of government dollars). The complaint in this
action was not filed by Kessler Topaz Meltzer & Check, LLP. For
more information about Kessler Topaz Meltzer & Check, LLP please
visit www.ktmc.com.
CONTACT:
Kessler Topaz Meltzer & Check, LLP
James Maro, Jr., Esq.
280 King of Prussia Road
Radnor, PA 19087
(844) 887-9500 (toll free)
info@ktmc.com [GN]
BOSTON BEER: Kirby McInerney Reminds of November 15 Deadline
------------------------------------------------------------
The law firm of Kirby McInerney LLP reminds investors that a class
action lawsuit has been filed in the U.S. District Court for the
Southern District of New York on behalf of those who acquired The
Boston Beer Company, Inc. ("Boston Beer" or the "Company") (NYSE:
SAM) securities from April 22, 2021 through September 8, 2021,
inclusive (the "Class Period"). Investors have until November 15,
2021 to apply to the Court to be appointed as lead plaintiff in the
lawsuit.
Boston Beer is a high-end alcoholic beverage company that produces
hard seltzer, malt beverages (i.e. beers), and hard cider at its
cidery and under contractual arrangements at other brewery
locations.
On July 22, 2021, after the market closed, Boston Beer reduced its
full year 2021 guidance, expecting earnings per share between $18
and $22, down from a prior range of $22 and $26. The Company cited
softer-than-expected sales in the hard seltzer category and overall
beer industry, and also stated that it had "overestimated the
growth of the hard seltzer category in the second quarter." On this
news, the Company's share price declined by $246.54 per share, or
approximately 26%, from $947.54 per share to close at $701.00 per
share on July 23, 2021.
On September 8, 2021, after the market closed, Boston Beer withdrew
its 2021 financial guidance, citing decelerating sales of hard
seltzer products. The Company also stated that it "expects to incur
hard seltzer-related inventory write-offs, shortfall fees payable
to 3rd party brewers, and other costs" for the remainder of fiscal
2021. On this news, the Company's share price declined by $21.09
per share, or approximately 3.8%, from $559.40 per share to close
at $538.31 per share on September 9, 2021.
The lawsuit alleges 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 Boston Beer's hard seltzer sales
were decelerating; (2) that, as a result, Boston Beer was
reasonably likely to incur inventory write-offs; (3) that the
Company was reasonably likely to incur shortfall fees payable to
third-party brewers; (4) that, as a result of the foregoing, Boston
Beer's financial results would be adversely impacted; 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 Boston Beer securities, have
information, or would like to learn more about these claims, please
contact Thomas W. Elrod of Kirby McInerney LLP at 212-371-6600, by
email at investigations@kmllp.com, or by filling out this contact
form, to discuss your rights or interests with respect to these
matters without any cost to you.
Kirby McInerney LLP is a New York-based plaintiffs' law firm
concentrating in securities, antitrust, whistleblower, and consumer
litigation. The firm's efforts on behalf of shareholders in
securities litigation have resulted in recoveries totaling billions
of dollars. Additional information about the firm can be found at
Kirby McInerney LLP's website: http://www.kmllp.com.
This press release may be considered Attorney Advertising in some
jurisdictions under the applicable law and ethical rules.
Contacts:
Kirby McInerney LLP
Thomas W. Elrod, Esq.
212-371-6600
https://www.kmllp.com
investigations@kmllp.com [GN]
BOSTON PRIVATE: Faces Securities Suit Over SVB Merger Deal
----------------------------------------------------------
Monteverde & Associates PC has filed a class action lawsuit in the
United States District Court for the District of Massachusetts,
Richard Savoy v. Boston Private Financial Holdings, Inc. et al,
Docket No. 1:21-cv-11537, on behalf of the public common
shareholders of Boston Private Financial Holdings, Inc., ("BPFH" or
the "Company") who held BPFH securities as of the record date March
15, 2021 (the "Class Period"), and have been harmed by BPFH's and
its board of directors' alleged violations of Sections 14(a) and
20(a) of the Securities Exchange Act of 1934 (the "Exchange Act")
regarding the acquisition of BPFH by SVB Financial Group (the
"Merger").
Under the terms of the Merger, each share of BPFH common stock was
canceled and converted into $2.10 in cash and 0.0228 shares of SVB
Financial Group common stock (the "Merger Consideration"). The
complaint alleges that the Merger Consideration harmed BPFH
shareholders by providing less than the inherent value of the
Company and that the Proxy Statement filed by the Company to
solicit shareholder approval of the Merger misled shareholders
about the Company's financials and the Merger in violation of the
Exchange Act. The special meeting of BPFH stockholders to vote on
the Merger was held on May 4, 2021.
If you wish to serve as lead plaintiff, you must move the Court no
later than November 22, 2021. Any member of the putative class may
move the Court to serve as lead plaintiff through counsel of their
choice, or may choose to do nothing and remain an absent class
member.
Click here for more information:
https://www.monteverdelaw.com/case/boston-private-financial-holdings-inc.
It is free and there is no cost or obligation to you.
Monteverde & Associates PC is a national class action securities
and consumer litigation law firm that has recovered millions of
dollars for shareholders and is committed to protecting investors
and consumers from corporate wrongdoing. Monteverde & Associates
lawyers have significant experience litigating Mergers &
Acquisitions and Securities Class Actions, whereby they protect
investors by recovering money and remedying corporate misconduct.
Mr. Monteverde, who leads the legal team at the firm, has been
recognized by Super Lawyers as a Rising Star in Securities
Litigation in 2013, 2017-2019 an award given to less than 2.5% of
attorneys in a particular field. He has also been selected by
Martindale-Hubbell as a 2017-2020 Top Rated Lawyer. Our firm's
recent successes include changing the law in a significant victory
that lowered the standard of liability under Section 14(e) of the
Exchange Act in the Ninth Circuit. Thereafter, our firm
successfully preserved this victory by obtaining dismissal of a
writ of certiorari as improvidently granted at the United States
Supreme Court. Emulex Corp. v. Varjabedian, 139 S. Ct. 1407 (2019).
Also, over the years the firm has recovered or secured over a dozen
cash common funds for shareholders in mergers & acquisitions class
action cases.
Contact:
Juan E. Monteverde, Esq.
MONTEVERDE & ASSOCIATES PC
The Empire State Building
350 Fifth Ave, Suite 4405
New York, NY 10118
United States of America
jmonteverde@monteverdelaw.com
Tel: (212) 971-1341
http://www.monteverdelaw.com[GN]
BRAVO ARKOMA: Court Enters Amended Specialized Scheduling Order
---------------------------------------------------------------
In the class action lawsuit captioned as McKNIGHT REALTY COMPANY,
on behalf of itself and all others similarly situated, v. BRAVO
ARKOMA, LLC, Case No. 6:20-cv-00428-JWD (E.D. Okla.), the Hon.
Judge Jodi Dishman entered an amended specialized scheduling order
as follows:
Event Deadline
Motions for leave to amend or add Deadline has expired
additional parties
Documents previously produced December 29, 2021
by parties on or before November
29, 2021 shall be deemed
authenticated except as to
those objected to by
Class Certification Motion January 27, 2022
filed with all supporting
evidence, including Plaintiff's
expert disclosures
Class Certification Response April 18, 2022
filed with all supporting
evidence, including Defendant's
expert disclosures
Class Certification Reply May 19, 2022
filed with any rebuttal
evidence, including
Plaintiff's rebuttal expert
disclosures, if any
Discovery Cutoff Prior May 19, 2022
to Class Certification
Hearing
Class Certification Hearing TBA
(specific date to be set by
the Court)
Bravo is an exploration and production company based in Tulsa,
Oklahoma.
A copy of the Court's order dated Sept. 21, 2021 is available from
PacerMonitor.com at https://bit.ly/3omcB3n at no extra charge.[CC]
BUFFETT SENIOR: Ziegler Seeks Final OK of Class Action Settlement
------------------------------------------------------------------
In the class action lawsuit captioned as ROBERT A. ZIEGLER; GARTH
YATES, INDIVIDUALLY AND ON BEHALF OF A CLASS OF SIMILARLY SITUATED
PERSONS, v. RICHARD P. DALE, JR.; BUFFETT SENIOR HEALTHCARE CORP.;
SENIOR HEALTHCARE PARTNERS, INC.; RJR INSURANCE SERVICES, INC.,
Case No. 1:18-cv-00071-SWS (D. Wyo.), the Plaintiffs ask the Court
to enter an order:
1. granting final approval of the class action settlement;
2. certifying the class for purposes of the settlement;
3. approving the Plaintiffs' incentive awards of $5,000 each;
4. approving class counsel's request for attorneys' fees of
$166,667 and litigation expenses of $26,584.11; and
5. entering a permanent injunction prohibiting Defendants, or
any entity owned and/or operated by Defendant Richard Dale
now or in the future, or their agents, from marketing,
selling, or providing term benefits to consumers as
lifetime benefits; and
6. entering final judgment in this matter, and retaining
jurisdiction to enforce its injunction.
The Plaintiffs allege that Defendants' sale of MySHP plans to
senior citizens contained illusory air ambulance benefits, for the
life of the purchaser (and spouse, if applicable), plus a
beneficiary. In addition to air ambulance, MySHP plans advertise
various benefits, from prescription drugs to pet medications,
e-cigarettes, and nutritional supplements.
BSH is doing business in senior market healthcare sales.
A copy of the Plaintiffs' motion dated Sept. 22, 2021 is available
from PacerMonitor.com at https://bit.ly/3imJKbm at no extra
charge.[CC]
The Plaintiffs are represented by:
Jason E. Ochs, Esq.
OCHS LAW FIRM, P.C.
690 U.S. 89, Suite 204
Jackson, Wyoming 83001
Telephone: (307) 739-3959
Facsimile: (307) 235-6910
- and -
Brett C. Thompson, Esq.
Hirlye R. "Ryan" Lutz, III, Esq.
F. Jerome Tapley, Esq.
Adam W. Pittman, Esq.
CORY WATSON , P.C.
2131 Magnolia Avenue South
Birmingham, AL 35205
Telephone: (205) 328-2200
Facsimile: (205) 324-7896
CATHAY PACIFIC: WeirFoulds LLP Attorneys Discuss Court Ruling
-------------------------------------------------------------
Carlos Martins, Esq., and Agatha Wong, Esq., of WeirFoulds LLP, in
an article for Mondaq, report that in the recent decision McLean v.
Cathay Pacific Airways Limited,1 the Supreme Court of British
Columbia approved a settlement of a class action brought against
Cathay Pacific Airways Limited ("Cathay Pacific") for a data breach
that occurred in 2018.
The Class Action
On October 24, 2018, Cathay Pacific announced that it had
experienced a data breach exposing the names, passport numbers,
credit card numbers, and other private information of up to 9.4
million passengers worldwide.
On August 16, 2019, James Rodney McLean commenced a Canada-wide
class action against Cathay Pacific in the Supreme Court of British
Columbia on behalf of approximately 230,000 Canadian residents
affected by the data breach.
The Settlement Agreement
The parties entered into a written settlement agreement on January
12, 2021. The main terms of the settlement agreement are summarized
below:
Without admitting liability, Cathay Pacific will pay $1,550,000
(the "Settlement Funds").
Using the Settlement Funds, class counsel will establish a
compensation fund to pay provable loss claims submitted by class
members.
Any Settlement Funds remaining after payment of class members' loss
claims, class counsel fees, disbursements, taxes, and honorarium to
the representative plaintiff McLean shall be donated to the Law
Foundation of British Columbia.
The settlement agreement was contingent on the certification of the
action as a class action and court approval of the settlement.
Under s. 35 of the British Columbia Class Proceedings Act, RSBC
1996, c. 50 (the "CPA") a class action can only be settled with
approval of a judge.
The action was certified as a class action for settlement purposes
on February 12, 2021. The parties subsequently sought judicial
approval of the settlement agreement.
Court Approval of the Settlement Agreement
In British Columbia, the test for approving a class action
settlement is whether the settlement is "fair and reasonable and in
the best interests of the class as a whole."2 The court can only
approve or reject a settlement. It cannot modify the settlement's
specific terms.
Justice Kent of the Supreme Court of British Columbia identified 10
factors by which to assess the reasonableness of a settlement:
-- the likelihood of recovery, or the likelihood of success;
-- the amount and nature of discovery evidence;
-- settlement terms and conditions;
-- recommendations and experience of counsel;
-- future expense and likely duration of litigation;
-- recommendations of neutral parties, if any;
-- number of objectors and nature of objections;
-- presence of good faith and absence of collusion;
-- degree and nature of communications by counsel and the
-- representative plaintiffs with class members during
litigation;
-- information conveying to the court the dynamics of, and the
positions taken by the parties during the negotiation.
Justice Kent highlighted the following factors favouring court
approval of the settlement agreement:
The settlement agreement was negotiated at arm's length (the
parties were acting independently from one another) with the help
of an experienced mediator and experienced counsel.
Given recent Canadian court decisions dismissing data breach class
actions, there was a risk that class members could go through years
of litigation only to have their case against Cathay Pacific
dismissed. By contrast, an early out-of-court settlement would
allow class members to recoup at least some of their losses.
Cathay Pacific's passenger business had depleted approximately 99%
over the past year due to the COVID-19 pandemic. Without a
voluntary settlement, class members might not be able to enforce
any judgment that they might obtain against the air carrier.
Objections to the Settlement
Only five class members raised objections to the settlement
agreement.
Three of those objections were to the term of the settlement
agreement that leftover Settlement Funds would be donated to the
Law Foundation of British Columbia. Justice Kent disagreed with
this objection, noting that, in any event, ss. 36.1 and 36.2 of the
CPA requires 50% of remaining settlement funds to be donated to the
Law Foundation of British Columbia. The objecting class members had
provided no sound reason why the parties should be put to the
expense of choosing another charity to donate the other 50% of
remaining Settlement Funds when the Law Foundation already had the
necessary expertise, experience, and mandate to use any donated
funds in the public interest.
Justice Kent found that the objections raised by the other two
objecting class members were based on misconceptions of the British
Columbia class actions regime. He rejected arguments that class
counsel was required to obtain approval of legal fees and
disbursements from each class member, that the class was
underinclusive because it only included Canadian residents, and
that counsel for the parties were in a conflict of interest because
of their volunteer work or previous employment.
Concluding that it was fair, reasonable, and in the best interests
of the class members, Justice Kent granted an order approving the
settlement agreement. [GN]
Cervantes Files FLSA Suit in S.D. New York
------------------------------------------
The case styled as Daniel Cervantes, Ismael Garcia Briaguez, Jose
Miguel Flores, Luis Tenelanda Baculima, Jorge Tenesaca, Eustachio
Gonzales, individually and on behalf of others similarly situated,
Case No. 1:21-cv-08096 (S.D.N.Y., Sept. 29, 2021).
The lawsuit is brought over alleged violation of the Fair Labor
Standards Act for Denial of Overtime Compensation.[BN]
The Plaintiffs are represented by:
Michael Antonio Faillace, Esq.
MICHAEL FAILLACE & ASSOCIATES, P.C.
60 East 42nd Street, Suite 4510
New York, NY 10165
Phone: (212) 317-1200
Fax: (212) 317-1620
Email: michael@faillacelaw.com
CHIPOTLE MEXICAN: Pramme Sues Over Deceptive Representations
------------------------------------------------------------
Stephen Pramme, individually and on behalf of all others similarly
situated v. CHIPOTLE MEXICAN GRILL, INC., a Delaware Corporation,
Case No. RG21113038 (Cal. Super. Ct., Alameda Cty., Sept. 17,
2021), is brought against Chipotle for its deceptive and untruthful
representations that it provides $0 or $1 food delivery fees to
customers when customers order from Chipotle through its website or
application and to seek damages and remedies, such as to enjoin
Chipotle from falsely and misleadingly representing its food
delivery fees in violation of the California: Consumers Legal
Remedy Act, False Advertising Law, and Unfair Competition Law.
According to the complaint, by offering a food delivery option for
free or a negligible amount, Chipotle intended to attract customers
and compete in the ever-growing food delivery service market.
Chipotle began to offer, market, advertise, and promote this food
delivery option during the COVID-19 pandemic. Many Chipotle
customers preferred eating at home due to the COVID-19 pandemic,
creating a need for convenient, easily accessible, affordable
restaurants and food delivery service options. The food delivery
option was meant and continues to capitalize on this market.
However, these representations of $0 or $1 food delivery fees are
false. There are food delivery fees when a customer orders through
the Chipotle website and application. Chipotle imposes food
delivery fees on customers by sneaking in a service fee at checkout
and higher menu prices. The service fee and higher menu prices are
exclusively applied to food delivery orders, not to orders in store
or through the website or application and picked-up in store.
The service fee and higher menu prices are tantamount to
significant food delivery fees. Chipotle intentionally obscures the
delivery fee and recoups the food delivery fee through a service
fee and higher menu prices. Thereby, Chipotle deceives customers
into making food delivery orders that they would not otherwise
made. By falsely claiming $0 or $1 food delivery fees, Chipotle
gains an unfair advantage over competitors, like Qdoba Grill and
Baja Fresh Mexican Grill, who disclose food delivery fees. The
Plaintiff and thousands of other Chipotle customers fell for this
gimmick. They were charged hidden food delivery fees that they were
told they were not being charged for, says the complaint.
The Plaintiff purchased Chipotle's food for delivery mainly from
the application.
Chipotle develops and operates fast casual restaurants that
specialize in tacos and burritos that are made to order.[BN]
The Plaintiff is represented by:
Douglas Han, Esq.
Shunt Tatavos-Gharajeh, Esq.
Talia Lux, Esq.
JUSTICE LAW CORPORATION
751 N. Fair Oaks Avenue, Suite 101
Pasadena, CA 91103
Phone: (818) 230-7502
Fax: (818) 230- 7259
- and -
Derek H. Potts, Esq.
Ryan Fowler, Esq.
POTTS LAW FIRM, LLP
3737 Buffalo Speedway, Suite 1900
Houston, TX 77098
Phone: (713) 963-8881
Fax: (713) 583-5388
Email: dpotts@potts-law.com
rfowler@potts-law.com
COCA-COLA: Court Ruling on Suit Over Mislabeled Products Discussed
------------------------------------------------------------------
Jeff Wilkerson, Esq., and Patrick e. Hogan, Esq., of Winston &
Strawn LLP, disclosed that the Ninth Circuit recently held that
previously deceived consumers lacked Article III standing to enjoin
Coca-Cola from labeling its Coke products as free of artificial
flavors and chemical preservatives where they alleged nothing more
than an interest in proper labeling. The unpublished decision
demonstrates that defendants can prevail on this issue when facing
a potential injunction against their advertising or labeling, but
leaves uncertainty and potential ammunition for consumer-fraud
plaintiffs.
In June, we warned that In re Coca-Cola Products could deepen the
divide between the Ninth Circuit and other courts on a recurring
issue in consumer class actions -- whether plaintiffs have standing
to seek injunctions barring allegedly false advertising or
labeling. This is an important issue for defendants -- even in
cases with relatively low potential for monetary exposure, such
injunctions threaten expensive and disruptive labeling and
advertising changes. Several weeks ago, the Ninth Circuit held (in
an unpublished memorandum decision) that plaintiffs alleging
mislabeling of Coke had "not demonstrated a threat of future harm
sufficient to support their claim for injunctive relief." The Ninth
Circuit got it right, but Coca-Cola still leaves some uncertainty
about standing for injunctive relief in this circuit.
Several other circuits have correctly held that, because the
plaintiffs necessarily know about deceptive advertising or labeling
alleged in their own complaints and thus cannot be deceived again,
plaintiffs in such cases lack the "imminent risk" of future injury
necessary for standing to seek injunctive relief. The Ninth Circuit
is the outlier. In 2018, it held in Davidson that "misled consumers
may properly allege a threat of imminent or actual harm" in two
situations: where a plaintiff plausibly alleges that she (1) "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," or (2) "might purchase the product in the future … as
she may reasonably, but incorrectly, assume the product was
improved." Although undoubtedly a blow to defendants, several
courts—including the Ninth Circuit itself in other unpublished
decisions—later distinguished Davidson and held that previously
deceived consumers lacked standing for injunctive relief under
certain circumstances.
Coca-Cola put the question squarely before the Ninth Circuit again.
At issue were allegations that Coke's label misrepresents that the
product is free of artificial flavors and chemical preservatives.
The plaintiffs claimed that "they would consider purchasing" Coke
again if it were "properly labeled." The Ninth Circuit didn't bite,
holding that "such an abstract interest in compliance with labeling
requirements is insufficient" and that "the imminent injury
requirement is not met by alleging that the plaintiffs would
consider purchasing Coke" again.
Although the court got it right, the opinion nevertheless provides
some fodder for consumer-fraud plaintiffs and lacks precedential
value for defendants. As with many decisions in this context,
Coca-Cola involved a heavily fact-based analysis, distinguishing
the Davidson plaintiff's "personal and individual" harm from the
abstract "informational" injury alleged by the Coke purchasers, who
never alleged "a desire to purchase Coke as advertised."[8] The
court characterized the Davidson scenarios as "non-exclusive"
illustrations of threatened harm sufficient to satisfy Article III,
leaving open the possibility that it will accept different theories
in the future.[9] Moreover, the panel's decision to not formally
publish the opinion impacts its reach.
Companies therefore continue to face risks associated with claims
for injunctive relief in consumer-fraud cases in the Ninth Circuit.
Winston attorneys have litigated this issue in multiple cases, and
are available to assist defendants facing similar allegations in
future cases. [GN]
COOK COUNTY, IL: Court Denies Bid to Certify Class in Simpson Suit
------------------------------------------------------------------
District Judge Sharon Johnson Coleman of the U.S. District Court
for the Northern District of Illinois, Eastern Division, denies the
Plaintiffs' motion for class certification in the lawsuit titled
JOSEPH D.G. SIMPSON, et al., Plaintiffs v. SHERIFF TOM DART, in his
official capacity, et al., Defendants, Case No. 18-cv-0553 (N.D.
Ill.).
The Plaintiffs, on behalf of themselves and others similarly
situated, filed this putative class action lawsuit challenging the
hiring practices for Correctional Officers at the Cook County
Department of Corrections as racially discriminatory against
African-Americans in violation of Title VII, 42 U.S.C. Section
1981, the Illinois Civil Rights Act, 740 ILCS 23/5(a)(1), and the
Equal Protection Clause of the United States Constitution. Before
the Court is plaintiffs' motion for class certification brought
pursuant to Federal Rules of Civil Procedure 23(a) and 23(b)(3).
The Court, in its discretion, denies the Plaintiffs' motion for
class certification because they have not established the
commonality requirement under Rule 23(a)(2).
Background
The Plaintiffs brought this lawsuit against Cook County Sheriff Tom
Dart in his official capacity ("Sheriff's Office" or "CCSO") and
the Cook County Sheriff's Merit Board ("Merit Board") based on
theories of disparate impact and discriminatory intent. The parties
have engaged in fact and expert discovery for approximately three
years. Meanwhile, in the Plaintiffs' reply brief in support of
their motion for class certification, they restructured their
proposed class into several subclasses. Thereafter, the Court
granted the Plaintiffs leave to file a Second Amended Complaint so
they could redefine their proposed class into smaller subclasses.
The Court also granted the Defendants leave to file a sur-reply to
the class certification motion to address the newly-defined class
and subclasses.
In their Second Amended Complaint, the Plaintiffs allege from at
least 2013, there has been a substantial drop in the number and
percentage of African-Americans hired as Correctional Officers for
the Cook County Jail. They further assert that during the class
period defendants' hiring selection and screening criteria have not
been job-related nor reliable and have had an adverse impact on
African-Americans. The Plaintiffs also allege that the Defendants
have engaged in a pattern or practice of intentional race
discrimination against them.
The Correctional Officer hiring process consists of several steps
conducted by two separate entities, the Merit Board and the
Sheriff's Office. Applicants must first successfully complete the
Merit Board process and obtain certification before they are
eligible to begin the Sheriff's hiring process.
The Plaintiffs seek to certify a combined class of Black applicants
for Correctional Officer positions at the Cook County Jail, along
with five subclasses. The Combined Class consists "of all Black
applicants for Correctional Officer positions at the Cook County
Jail who were disqualified at one of these five steps in the hiring
process--the first written test, the second written (situation)
test, the physical fitness test, the Merit Board final review, or
the CCSO polygraph/administrative review--and who would have been
eligible for entry-level Correctional Officer positions filled on
or after March 12, 2015 for purposes of Title VII claims or who
were notified of their disqualification on or after January 24,
2016 for purposes of all other claims. The CCSO Subclass,
consisting of all Black applicants for Correctional Officer
positions at the Cook County Jail who were disqualified by the CCSO
during its File Review and who would have been eligible for
entry-level Correctional Officer positions filled on or after March
12, 2015 for purposes of Title VII claims or who were notified of
their disqualification on or after January 24, 2016 for purposes of
all other claims."
The Subclasses are:
-- Merit Board Subclass 1, consisting of all Black applicants
for Correctional Officer positions at the Cook County Jail
who were disqualified because of their score on the Merit
Board's first written test and who would have been eligible
for entry-level Correctional Officer positions filled on or
after March 12, 2015 for purposes of Title VII claims or
who were notified of their disqualification on or after
January 24, 2016 for purposes of all other claims;
-- Merit Board Subclass 2, consisting of all Black applicants
for Correctional Officer positions at the Cook County Jail
who were disqualified because of their score on the Merit
Board's situation or second written test and who would have
been eligible for entry-level Correctional Officer
positions filled on or after March 12, 2015 for purposes of
Title VII claims or who were notified of their
disqualification on or after January 24, 2016 for purposes
of all other claims;
-- Merit Board Subclass 3, consisting of all Black applicants
for Correctional Officer positions at the Cook County Jail
who were disqualified because of their performance on the
Merit Board's physical fitness test and who would have been
eligible for entry-level Correctional Officer positions
filled on or after March 12, 2015 for purposes of Title VII
claims or who were notified of their disqualification on or
after January 24, 2016 for purposes of all other claims;
and
-- Merit Board Subclass 4, consisting of all Black applicants
for Correctional Officer positions at the Cook County Jail
who were disqualified by the Merit Board during its Final
Review and who would have been eligible for entry-level
Correctional Officer positions filled on or after March 12,
2015 for purposes of Title VII claims or who were notified
of their disqualification on or after January 24, 2016 for
purposes of all other claims.
Discussion
As to the Plaintiffs' proposed combined class, they assert that the
common question is whether the Sheriff's Office, on its own or
through its agent the Merit Board, engaged in a pattern or practice
of disproportionality rejecting Black applicants amounting to
intentional discrimination. Under this argument, proof of
commonality overlaps with the Plaintiffs' merits contention that
the Defendants engaged in a pattern or practice of unlawful
discrimination.
The Defendants challenge the combined class definition under Rule
23(a)(2)'s commonality factor, which requires "questions of law or
fact common to the class." The Defendants argue that the Plaintiffs
cannot show commonality for the combined class because they did not
present evidence that the Sheriff's Office or the Merit Board
engaged in an intentional pattern and practice of discrimination,
namely, that race discrimination resulted from their "standard
operating procedure."
The Court agrees because the evidence does not support a reasonable
inference that the same conduct or practice by the same Defendant
gave rise to the Plaintiffs' claims. Instead, the record shows that
the hiring of Correctional Officers involves multiple and distinct
decision makers, along with a polygraph/administrative review,
physical fitness tests, and written standardized tests that a
third-party vendor administers, Judge Coleman explains.
Further adding to the complexity of the hiring decisions during the
class period is the number of changes made to the hiring criteria,
including changes to the polygraph/review disqualifying criteria,
Judge Coleman notes. There were also changes to the members of the
Merit Board, as well as different human resource administrators
reviewing the candidates' files for the Sheriff's Office. In
essence, the Plaintiffs bring this lawsuit based on hundreds of
different employment decisions made by different decision-makers.
The Plaintiffs' proposed Sheriff's Office subclass pertains to
applicants, who were disqualified by the Sheriff's Office during
its polygraph/file review. During this first step of the hiring
process, the Sheriff's Office evaluates each applicant's certified
file against 50 separate disqualification criteria. In support of
this subclass, the Plaintiffs contend that the Sheriff's Office has
consistently applied higher standards and levels of scrutiny to
Black applicants and has disproportionately disqualified Black
applicants based on racially-biased criteria.
Judge Coleman finds, among other things, that the Plaintiffs have
not presented evidence backing up their allegations nor have they
identified a company-wide policy to meet the commonality criteria
under Rule 23(a)(2). He adds that the Plaintiffs' argument is
speculative and not supported by the record.
The parties have conducted fact and expert discovery over the last
three years, yet the Plaintiffs have not set forth evidence to meet
their burden that class members were rejected by the Merit Board or
Sheriff's Office based on racially-biased criteria or a
company-wide policy, Judge Coleman observes. And, although the
Plaintiffs' expert, Dr. Charles A. Scherbaum's straight percentage
comparisons of selection rates indicate racial disparity in the
hiring of Correctional Officers for the Cook County Department of
Corrections, these percentages, on their own, do not support an
inference that defendants applied a uniform or company-wide
practice on a class-wide basis to fulfill Rule 23(a)(2)'s
commonality requirement under Wal-Mart Stores, Inc. v. Dukes, 564
U.S. 338, 350, 131 S.Ct. 2541, 180 L.Ed.2d 374 (2011).
Conclusion
Based on the reasons set forth, the Court, in its discretion,
denies the Plaintiffs' motion for class certification in its
entirety.
A full-text copy of the Court's Memorandum Opinion and Order dated
Sept. 13, 2021, is available at https://tinyurl.com/2465he2r from
Leagle.com.
CORECIVIC OF TENNESSEE: Falline Files FLSA Suit in D. Nevada
------------------------------------------------------------
A class action lawsuit has been filed against CoreCivic of
Tennessee, LLC. The case is styled as Michael Falline, Individually
and on Behalf of All Others Similarly Situated v. CoreCivic of
Tennessee, LLC, Case No. 2:21-cv-01802-GMN-BNW (D. Nev., Sept. 29,
2021).
The lawsuit is brought over alleged violation of the Fair Labor
Standards Act.
CoreCivic -- https://www.corecivic.com/ -- provides quality
corrections and detention services, residential reentry centers and
criminal justice real estate solutions that better the public
good.[BN]
The Plaintiff is represented by:
Alanna Klein Fischer, Esq.
Anthony J. Lazzaro, Esq.
Lori M. Griffin, Esq.
THE LAZZARO LAW FIRM, LLC
The Heritage Building, Suite 250
34555 Chagrin Boulevard
Moreland Hills, OH 44022
Phone: (216) 696-5000
Fax: (216) 696-7005
- and -
Don J. Foty, Esq.
HODGES & FOTY, LLP
4409 Montrose Blvd., Suite 200
Houston, TX 77006
Phone: (713) 523-0001
Fax: (713) 523-0016
Email: dfoty@hftrialfirm.com
- and -
Hans A. Nilges, Esq.
7266 Portage Street, N.W., Suite D
Massillon, OH 44646
Phone: (330) 470-4428
Fax: (330) 754-1430
- and -
Esther C Rodriguez, Esq.
RODRIGUEZ LAW OFFICES, PC
10161 Park Run Drive, Suite 150
Las Vegas, NV 89145
Phone: (702) 320-8400
Fax: (702) 320-8401
Email: esther@rodriguezlaw.com
COSTA DEL MAR: Final Approval of Settlement in Smith Partly OK'd
----------------------------------------------------------------
In the class action lawsuit captioned as TROY SMITH, individually
and on behalf of all others similarly situated, BRENDAN C. HANEY,
individually and on behalf of all others similarly situated, and
GERALD E. REED, IV, individually and on behalf of all others
similarly situated, v. COSTA DEL MAR, INC., a Florida corporation,
Case No. 3:18-cv-01011-TJC-JRK (M.D. Fla.), the Hon. Judge Timothy
J. Corrigan on entered an order that:
1. Expenses Class Counsel's Unopposed Motion for Attorneys'
Fees and and Conditional Request for Incentive Awards to
Class Representatives is granted in part, deferred in
part, and denied in part. The parties shall file
additional briefing as instructed no later than October
20, 2021. If they so choose, Objectors may respond to the
additional briefing no later than November 10, 2021.
2. Plaintiffs' motion for final approval of class action
settlement is granted in part, deferred in part, and
denied in part.
3. Objector Mitchell George Miorelli's motion to strike or
exclude declaration of Thomas Scott is denied.
4. The objections of John W. Davis, Austin Valls, and
Mitchell George Miorelli have been considered.
5. the final order will be entered after the Court receives
the additional briefing.
-- Settlement Terms
The Plaintiffs in the three lawsuits that have been
resolved through this consolidated settlement allege
that Costa charged unlawful fees and related upcharges
for repairs to and purchase of Costa sunglasses.
The previously certified classes are now finally
certified, solely for purposes of this settlement,
pursuant to Federal Rule of Civil Procedure 23(a) and
(b)(3):
Florida Repair Class: All citizens of the State of
Florida who: (i) purchased Costa plano sunglasses
before January 1, 2018; and (ii) were charged a fee by
Costa, from July 28, 2012, through February 28, 2021,
to repair or replace their Costa plano sunglasses
damaged by accident, normal wear and tear, or misuse.
Nationwide Repair Class: All citizens of the United
States (excluding citizens of the State of Florida)
who: (i) purchased Costa plano sunglasses before
January 1, 2018, and (ii) were charged a repair fee by
Costa, from April 3, 2015, through February 28, 2021,
to repair or replace their Costa plano sunglasses
damaged by accident, normal wear and tear, or misuse.
Florida Purchase Class: All citizens of the State of
Florida who purchased Costa plano sunglasses from July
28, 2013, to January 31, 2018.
Warranty Class: All citizens in the United States who:
(I) purchased a pair of non-prescription Costa
sunglasses prior to January 1, 2016; and (ii) paid
Costa a warranty fee to repair or replace non-
prescription sunglasses damaged by a manufacturer's
defect from August 20, 2013 through February 28, 2021.
-- Approval Process Procedural History
The Court originally granted preliminary approval to
the Amended and Restated Settlement Agreement on
September 3, 2020. Before ruling on the motion for
preliminary approval, the Court sua sponte raised the
issue of whether the settlement qualified as a coupon
settlement under the Class Action Fairness Act (CAFA),
and the parties provided additional briefing.
-- Attorneys' Fees and Costs
Attorneys' fees are a critical component of class
action settlement agreements and require court
approval. Generally, courts use one of two methods to
award reasonable attorneys' fees: the lodestar method
or the percentage method. Under the lodestar method,
"courts determine attorney's fees based on the product
of the reasonable hours spent on the case and a
reasonable hourly rate[,]" and "t]he product is known
as the lodestar."
-- Service Awards
Class Counsel originally sought service awards of
$10,000 for each of the three named Plaintiffs. After
that request, the Eleventh Circuit decided Johnson and
prohibited service awards for class action
representatives.
A copy of the Court's order dated Sept. 21, 2021 is available from
PacerMonitor.com at https://bit.ly/3FkMwYG at no extra charge.[CC]
DEUTSCHE BANK: Motion to Dismiss in Spoofing Class Action Denied
----------------------------------------------------------------
Melissa Angell, writing for Law360, reports that an Illinois
federal judge ruled that Deutsche Bank can't yet ax a proposed
class action seeking to hold it responsible for two former traders'
alleged 2013 illegal spoofing schemes, finding that further
information is needed to deterimine if trading firm Rock Capital
market and others behind the lawsuit have established standing in a
10-page Sept. 20 order denying Deutsche Bank's motion to dismiss.
[GN]
DRIVELINE RETAIL: Wins Summary Judgment Bid vs McGlenn
------------------------------------------------------
In the class action lawsuit captioned as LYNN MCGLENN v. DRIVELINE
RETAIL MERCHANDISING, INC., Case No. 2:18-cv-02097-SEM-TSH (C.D.
Ill.), the Hon. Judge Sue E. Myerscough entered an order granting
Defendant's motion for summary judgment.
The Court says that because McGlenn's only remaining alleged harm
is her alleged increased risk of future identity theft, which she
concedes is insufficient on its own to entitle her to damages,
Driveline is entitled to summary judgment on McGlenn's tort and
contract claims under Illinois law.
McGlenn also claims that Driveline violated the Illinois Personal
Information Protection Act ("PIPA") and the Illinois Consumer Fraud
and Deceptive Business Practices Act ("ICFA"). Driveline argues
that it met the Notice requirements of PIPA and, therefore, McGlenn
cannot prove a violation of PIPA.
On January 25, 2017, Driveline and thousands of its employees
became the victims of a criminal phishing attack. An unknown
individual (the "perpetrator"), disguised as the Chief Financial
Officer of Driveline, sent an e-mail to a Driveline employee who
worked in the payroll department. The perpetrator asked the
employee to send all of Driveline's employees' 2016 W-2s.
The employee responded to the email and sent the 2016 W-2s of
15,878 employees to the perpetrator. These 15,878 W-2s contained
social security numbers, names, home addresses, and wage
information for employees who worked at and received wages from
Driveline during the time period of January 1 2016 to December 31,
2016. Driveline admits that this information is irretrievably lost,
to be used against its employees forever.
When Driveline realized that the email had been a phishing attack,
it notified the Federal Bureau of Investigation ("FBI"). Driveline
also provided the IRS with the names and Social Security numbers
("SSNs") of the affected employees so the IRS could impose
appropriate controls to prevent the filing of fraudulent returns.
Driveline notified the appropriate governmental authorities of all
fifty states, Guam, and Puerto Rico of the Disclosure.
A copy of the Court's order dated Sept. 21, 2021 is available from
PacerMonitor.com at https://bit.ly/39XNeN6 at no extra charge.[CC]
EQT CORP: Mineral Rights Owners Can't File Lawsuit, Court Rules
---------------------------------------------------------------
WV News reports that mineral rights owners trying to sue EQT Corp.
in Ritchie County over whether it underpaid on gas royalty claims
can't because they were part of a class action settlement.
That's the ruling from U.S. District Court Judge John Preston
Bailey, who normally is based in Wheeling but ruled out of
Clarksburg on this case.
Bailey ruled that the mineral rights owners -- Phillip K. Williams,
Timothy A. Williams, Diana L. Weiss and Mahlon F. Harris -- were
part of the class action settlement that saw EQT pay out more than
$50 million.
Bailey underscored that in class action cases, it isn't necessary
for notice to be given to everyone possibly involved individually.
Rather, public notice, such as through legal ads, could qualify as
sufficient notice, Bailey ruled, citing precedent.
That means the mineral rights owners are bound, at least for the
gas royalty claims, to the same settlement as the class action. The
court did say the Williamses and Harris could continue to pursue a
Ritchie County lawsuit vs. EQT over natural gas liquids. [GN]
EVOLUS INC: Rosen Law Appointed as Lead Counsel in Securities Suit
------------------------------------------------------------------
In the case, IN RE: EVOLUS INC. SECURITIES LITIGATION, Case No. 20
Civ. 8647 (PGG) (S.D.N.Y.), Judge Paul G. Gardephe of the U.S.
District Court for the Southern District of New York appointed Raja
Ahmad as the Lead Plaintiff and Rosen Law Firm, P.A., as the Lead
Counsel.
Background
The case is a putative class action brought under federal
securities laws on behalf of those who purchased or otherwise
acquired Evolus, Inc. securities between Feb. 1, 2019, and July 6,
2020. Evolus is a public company headquartered in California whose
shares are listed on the New York Stock Exchange under the symbol
"EOLS." Evolus is a "medical aesthetics company" that "develops,
produces, and markets clinical neurotoxins for the treatment of
aesthetic concerns." It sought to "develop and introduce a cheaper
alternative to Botoxf0e2 to the U.S. market." Botox is a "purified
botulinum toxin that is widely used for temporarily reducing or
eliminating facial fine lines and wrinkles." Botox is manufactured
by Allergan plc and Allergan Inc. and is distributed by Allergan's
partner, Medytox Inc.
Evolus' Botox alternative is Jeuveau. In September 2013, as part of
its effort to develop Jeuveau, Evolus entered into a licensing
agreement with Daewoong Pharmaceuticals Co., Ltd., which had served
as Allergan's exclusive distributor of Botox for more than a
decade. And between January 2014 and February 2019, Evolus hired
five "former high-level Allergan employees with significant
Botoxf0e2 experience."
On Jan. 30, 2019, Allergan and Medytox filed a complaint with the
U.S. International Trade Commission ("ITC") alleging that, in
developing Jeuveau, Evolus and Daewoong had used and
misappropriated Medytox's trade secrets. Evolus dismissed these
allegations as "speculative" and "intended to create confusion."
On Feb. 1, 2019, Evolus issued a press release announcing that the
U.S. Food and Drug Administration ("FDA") had approved the
marketing of Jeuveau for cosmetic use, and initiated its campaign
to promote the commercial launch of Jeuveau in the United States.
It also told investors -- in dozens of public statements promoting
Jeuveau -- that Jeuveau is a proprietary product that is backed by
"years of clinical research and millions of dollars' worth of
investment in research and development." Evolus also predicted that
Jeuveau "would attain the number two U.S. market position within 24
months of launch."
On July 6, 2020, an ITC administrative law judge ("ALJ") issued an
Initial Final Determination in the case brought by Allergan and
Medytox. The ALJ concluded that Evolus and Daewoong had
"misappropriated from Medytox the botulinum toxin bacterial strain
as well as the manufacturing process that led to Jeuveau's
development and manufacture." The ALJ recommended that Evolus be
barred -- for 10 years -- from importing and selling Jeuveau in the
United States. In the two days after this decision was issued,
Evolus' stock price dropped 37%.
The Plaintiffs in the instant actions claim that -- during the
alleged class period of Feb. 1, 2019 to July 6, 2020 -- the
Defendants made materially false and misleading statements, and
failed to disclose material adverse facts about the Company's
business, operational, and compliance policies.
Specifically, the Defendants made false and/or misleading
statements and failed to disclose to investors that: (i) the real
source of botulinum toxin bacterial strain as well as the
manufacturing processes used to develop Jeuveau(TM) originated with
and were misappropriated from Medytox; (ii) sufficient evidentiary
support existed for the allegations that Evolus misappropriated
certain trade secrets relating to the botulin toxin strain and the
manufacturing processes for the development of Jeuveau(TM); (iii)
as a result, Evolus faced a real threat of regulatory and/or court
action, prohibiting the import, marketing, and sale of Jeuveau(TM);
which in turn (iv) seriously threatened Evolus' ability to
commercialize Jeuveau(TM) in the United States and generate
revenue; and (v) any revenues generated from the sale of
Jeuveau(TM) were based on Evolus' unlawful activities, including
the misappropriation of trade secrets and secret manufacturing
processes belonging to Allergan and Medytox.
On Oct. 16, 2020, Plaintiff Armin Malakouti filed an action against
Defendants Evolus Inc., David Moatazedi, Rui Avelar, and Lauren
Silvernail ("Defendants"), on behalf of a class of all those who
acquired Evolus common stock between Feb. 1, 2019 and July 6, 2020.
On Oct. 28, 2020, Plaintiff Clinton Cox filed a largely identical
putative class action. On Nov. 13, 2020, the Court consolidated the
Malakouti and Cox actions pursuant to a joint stipulation under the
caption In re Evolus Inc. Securities Litigation.
Pending before the Court are four motions for the appointment of
lead plaintiff and approval of lead counsel.
Discussion
I. Appointment of Lead Plaintiff
A. Presumptive Lead Plaintiff: Largest Financial Interest
The following parties seek appointment as the Lead Plaintiff: (1)
Raja Ahmad; (2) James LeFebvre; (3) Peter Diaferia and Mitchell
Sisun, who seek appointment as co-lead plaintiffs; and (4) Armin
Malakouti, Mahmood Gholami, and Daniel Mierlak, who seek
appointment as the "Investor Group."
While LeFebvre, Diaferia and Sisun, and the Investor Group
acknowledge that Ahmad claims the largest loss, they argue that
Ahmad does not have the largest financial interest, because he sold
all of his Evolus securities before the Defendants' alleged fraud
was disclosed to the market, and his losses are therefore not
recoverable.
Mr. Ahmad sold all of his Evolus securities between March 13, 2019,
and Jan. 14, 2020. He argues that his losses are recoverable
because Plaintiffs' claims do not "rest on one lone corrective
disclosure at the end of the Class Period." The Plaintiffs instead
allege that "during the Class Period, the relevant truth slowly
leaked out through partial corrective disclosures."
Judge Gardephe accepts Ahmad's calculation of his losses, and
concludes that -- at $748,294.84 -- he has alleged the greatest
loss and the largest financial interest among the movants.
Accordingly, and subject to Rule 23 requirements, there is a
rebuttable presumption that Ahmad is the most adequate plaintiff.
B. Rule 23 Requirements
Fed. R. Civ. P. 23 states that a party may serve as a class
representative only if "(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 order for the rebuttable presumption to apply, courts
have required only a prima facie showing that the requirements of
Rule 23 are met. Furthermore, "typicality and adequacy of
representation are the only provisions relevant to a determination
of lead plaintiff under the PSLRA."
Judge Gardephe concludes that Ahmad's claims and legal arguments
are similar to those of other investors and therefore
representative of the putative class. Accordingly, Ahmad has made
the preliminary showing required for typicality at this stage of
the proceedings.
Mr. Ahmad has also demonstrated that he will fairly and adequately
protect the interests of the putative class. Judge Gardephe finds
that Ahmad has retained competent and experienced counsel and pled
a significant loss that gives him a sufficient stake in the
litigation to ensure vigorous prosecution on behalf of all class
members. Moreover, there is no apparent conflict between Ahmad's
interests and those of the rest of the class. And, as he discussed,
the Judge finds that no movant has shown that Ahmad's claims are
subject to unique defenses or are otherwise rebuttable. Having met
the adequacy requirements, Ahmad -- as the investor with the
largest financial interest in the action --— will be appointed
the Lead Plaintiff.
II. Appointment of Lead Counsel
Mr. Ahmad has selected the Rosen Law Firm as his counsel. In
support of the request to appoint lead counsel, Ahmad and his
counsel have submitted a firm resume, which provides a detailed
description of the educational backgrounds and legal experience of
the attorneys at the firm -- including the attorneys who have
appeared in the action -- along with a list of the numerous cases
in which the firm has served or is now serving as lead or co-lead
counsel. Having reviewed Ahmad's brief and the firm resume, Judge
Gardephe concludes that the Rosen Law Firm is qualified to serve as
the Lead Counsel in the matter.
Conclusion
For the reasons he stated, Judge Gardephe granted Plaintiff Ahmad's
motion for appointment as lead plaintiff and of lead counsel. All
competing motions are denied. The Clerk of Court is directed to
terminate the motions.
A full-text copy of the Court's Sept. 17, 2021 Order is available
at https://tinyurl.com/tvczb9bm from Leagle.com.
FEDERATION INTERNATIONALE: Shields Cert. Reply Extended to Oct. 5
-----------------------------------------------------------------
In the class action lawsuit captioned as THOMAS A. SHIELDS, MICHAEL
C. ANDREW, and KATINKA HOSSZU, on behalf of themselves and all
others similarly situated, v. FEDERATION INTERNATIONALE DE NATATION
(FINA), Case No. 3:18-cv-07393-JSC (N.D. Cal.), the Hon. Judge
Jacqueline Scott T. Corley entered an order extending the deadline
for Plaintiffs' reply in support of Plaintiffs' motion for class
certification to October 5, 2021.
On October 9, 2020, the Court issued an prder amending the case
schedule. Following the Case Management Conference held on February
25, 2021, the Court issued an Order extending the deadline for
Plaintiffs' motion for class cCertification to April 6, 2021.
The Court's February 25, 2021 Order further required the parties to
file a stipulation setting forth a briefing schedule regarding the
deadline for the Opposition and Reply.
On April 30, 2021, the Court issued an Order adopting the parties'
stipulated schedule.
Due to Defendant's counsel's schedules, the parties conferred and
agreed to extend the deadline for the Opposition and Reply to June
29, 2021 and July 30, 2021, respectively.
On May 21, 2021, the Court issued an Order adopting the parties'
stipulated schedule.
FINA is the international federation recognised by the
International Olympic Committee (IOC) for administering
international competitions in water sports. It is one of several
international federations which administer a given sport or
discipline for the IOC and international community. It is based in
Lausanne, Switzerland.
A copy of the Court's order dated Sept. 21, 2021 is available from
PacerMonitor.com at https://bit.ly/2YeO8Cs at no extra charge.[CC]
The Attorneys for Plaintiffs Shields, Andrew, Hosszu, and the
Proposed Class, are:
Richard M. Heimann, Esq.
Eric B. Fastiff, Esq.
Caitlin M. Nelson, Esq.
LIEFF CABRASER HEIMANN &
BERNSTEIN, LLP
275 Battery Street, 29th Floor
San Francisco, CA 94111-3339
Telephone: (415) 956-1000
Facsimile: (415) 956-1008
E-mail: rheimann@lchb.com
efastiff@lchb.com
cnelson@lchb.com
FPC ALDERSON: Barker Suit Seeks to Certify Class of Inmates
-----------------------------------------------------------
In the class action lawsuit captioned as Belinda Barker v. Warden
Carver and BOP Director Carvajal, Case No. 1:21-cv-00528
(S.D.W.Va.), the Plaintiff asks the Court to enter an order
granting class certification and appointing class counsel.
The class certification is on behalf of the vulnerable inmates of
FPC Alderson who qualify for compassionate release of the CARES
ACT, elderly inmates that qualify for home confinement,m and other
inmates whom are living in unsafe conditions at FPC Alderson. The
inmates that are living in unsafe conditions with subclasses being
vulnerable inmates and another subclass, as to make up the entire
population of over 650 inmates, the suit says.
The class contends that their Eight Amendment rights are being
violated by way of substantial risk of serious illness or death,
constituting irreparable harm.
The Federal Prison Camp, Alderson is a minimum-security United
States federal prison for female inmates in West Virginia. It is
operated by the Federal Bureau of Prisons, a division of the United
States Department of Justice. FPC Alderson is in two West Virginia
counties, near the town of Alderson.
A copy of the Plaintiff's motion to certify class dated Sept. 22,
2021 is available from PacerMonitor.com at https://bit.ly/3B7dZum
at no extra charge.[CC]
FPC ALDERSON: Belcher Suit Seeks to Certify Class of Inmates
------------------------------------------------------------
In the class action lawsuit captioned as Rhonde Belcher v. Warden
Carver and BOP Director Carvajal, Case No. 1:21-cv-00529
(S.D.W.Va.), the Plaintiff asks the Court to enter an order
granting class certification and appointing class counsel.
The class certification is on behalf of the vulnerable inmates of
FPC Alderson who qualify for compassionate release of the CARES
ACT, elderly inmates that qualify for home confinement,m and other
inmates whom are living in unsafe conditions at FPC Alderson. The
inmates that are living in unsafe conditions with subclasses being
vulnerable inmates and another subclass, as to make up the entire
population of over 650 inmates, the suit says.
The class contends that their Eight Amendment rights are being
violated by way of substantial risk of serious illness or death,
constituting irreparable harm.
The Federal Prison Camp, Alderson is a minimum-security United
States federal prison for female inmates in West Virginia. It is
operated by the Federal Bureau of Prisons, a division of the United
States Department of Justice. FPC Alderson is in two West Virginia
counties, near the town of Alderson.
A copy of the Plaintiff's motion to certify class dated Sept. 22,
2021 is available from PacerMonitor.com at https://bit.ly/3itou3Q
at no extra charge.[CC]
FPC ALDERSON: Moore Suit Seeks to Certify Class of Inmates
----------------------------------------------------------
In the class action lawsuit captioned as Megan Moore v. Warden
Carver and BOP Director Carvajal, Case No. 1:21-cv-00530
(S.D.W.Va.), the Plaintiff asks the Court to enter an order
granting class certification and appointing class counsel.
The class certification is on behalf of the vulnerable inmates of
FPC Alderson who qualify for compassionate release of the CARES
ACT, elderly inmates that qualify for home confinement,m and other
inmates whom are living in unsafe conditions at FPC Alderson. The
inmates that are living in unsafe conditions with subclasses being
vulnerable inmates and another subclass, as to make up the entire
population of over 650 inmates, the suit says.
The class contends that their Eight Amendment rights are being
violated by way of substantial risk of serious illness or death,
constituting irreparable harm.
The Federal Prison Camp, Alderson is a minimum-security United
States federal prison for female inmates in West Virginia. It is
operated by the Federal Bureau of Prisons, a division of the United
States Department of Justice. FPC Alderson is in two West Virginia
counties, near the town of Alderson.
A copy of the Plaintiff's motion to certify class dated Sept. 22,
2021 is available from PacerMonitor.com at https://bit.ly/2YlI4YL
at no extra charge.[CC]
FPC ALDERSON: Sysio Suit Seeks to Certify Class of Inmates
----------------------------------------------------------
In the class action lawsuit captioned as Taylor Sysio v. Warden
Carver and BOP Director Carvajal, Case No. 1:21-cv-00533
(S.D.W.Va.), the Plaintiff asks the Court to enter an order
granting class certification and appointing class counsel.
The class certification is on behalf of the vulnerable inmates of
FPC Alderson who qualify for compassionate release of the CARES
ACT, elderly inmates that qualify for home confinement,m and other
inmates whom are living in unsafe conditions at FPC Alderson. The
inmates that are living in unsafe conditions with subclasses being
vulnerable inmates and another subclass, as to make up the entire
population of over 650 inmates, the suit says.
The class contends that their Eight Amendment rights are being
violated by way of substantial risk of serious illness or death,
constituting irreparable harm.
The Federal Prison Camp, Alderson is a minimum-security United
States federal prison for female inmates in West Virginia. It is
operated by the Federal Bureau of Prisons, a division of the United
States Department of Justice. FPC Alderson is in two West Virginia
counties, near the town of Alderson.
A copy of the Plaintiff's motion to certify class dated Sept. 22,
2021 is available from PacerMonitor.com at https://bit.ly/3D9dal8
at no extra charge.[CC]
FRESH VENTURE: EEOC Sues Over Sexual Harassment in the Workplace
----------------------------------------------------------------
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, on behalf of a class
of aggrieved individuals, Plaintiff v. FRESH VENTURE FOODS, LLC;
and DOES 1-10, inclusive, Defendant, Case No. 2:21-cv-07679 (C.D.
Cal., September 27, 2021) is a class action against the Defendants
for violations of Title VII of the Civil Rights Act of 1964 and
Title I of the Civil Rights Act of 1991.
The Plaintiff brings this action against the Defendant on behalf of
female employees and all others similarly situated who experienced
unlawful employment practices based on their gender. The aggrieved
individuals were subjected to sexual harassment in the workplace
and despite multiple complaints about the unwelcome sexual
advances, the Defendant failed to take any corrective action or
preventive measures to stop the harassment. Moreover, the female
employees also experienced constructive discharge and retaliation
for opposing the Defendant's unlawful employment practices.
The U.S. Equal Employment Opportunity Commission is a federal
agency that was established via the Civil Rights Act of 1964 to
administer and enforce civil rights laws against workplace
discrimination in the U.S.
Fresh Venture Foods, LLC is a food processing company in Santa
Maria, California. [BN]
The Plaintiff is represented by:
Anna Y. Park, Esq.
Nakkisa Akhavan, Esq.
Lorena Garcia-Bautista, Esq.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
255 East Temple Street, Fourth Floor
Los Angeles, CA 90012
Telephone: (213) 894-1083
Facsimile: (213) 894-1301
E-mail: lado.legal@eeoc.gov
FRONTIER AIRLINES: Colorado Court Tosses Consolidated Class Suit
----------------------------------------------------------------
The U.S. District Court for the District of Colorado grants
Frontier Airlines, Inc.'s Motion to Dismiss Consolidated Class
Action Complaint in the matter captioned In re Frontier Airlines
Litigation, Case No. 20-cv-01153-PAB-KLM, Consolidated with Civil
Action No. 20-cv-01340-PAB-KLM, No. 20-cv-01518-PAB-KLM,
20-cv-01689-PAB-KLM, 20-cv-01751-PAB-KLM, 20-cv-01837-PAB-KLM (D.
Colo.).
In 2020, the COVID-19 pandemic led to a sharp drop in air travel,
which led airlines to change flight schedules and cancel thousands
of flights to avoid incurring losses caused by operating at lower
capacity. The case deals with passengers, who booked tickets with
Frontier and whose flights were cancelled.
Frontier's Contract of Carriage provides, in relevant part, that in
the event a passenger's flight is canceled by Frontier, Frontier
will provide transportation on its own flights at no additional
charge to the passenger's original destination or equivalent
destination as provided herein. Frontier will have no obligation to
provide transportation on another carrier. If Frontier cannot
provide the foregoing transportation, Frontier will, if requested,
provide a refund for the unused portion of the passenger's ticket
in lieu of the transportation.
If a passenger cancels a ticket before a scheduled flight's
departure, the Contract states that the value of the ticket less a
service fee will be retained for 90 days from the date of
cancellation of the ticket in the form of an electronic credit.
Instead of fulfilling its obligations to provide refunds, Frontier
has provided only 90-day travel vouchers, which were worthless
during the pandemic due to travel restrictions and limited flight
capacity and routes. Frontier also re-booked passengers on
non-comparable flights, sent "misleading emails" offering travel
credits that "duped passengers into purportedly forgoing their
right to a refund," and failed to "meaningfully disclose" that
credits would expire in 90 days.
Frontier also waited as long as possible to cancel flights and,
instead of cancelling a flight and issuing a refund, Frontier
emailed passengers to encourage the passengers to cancel their
flights preemptively in exchange for travel credit and an
additional voucher, but Frontier failed to disclose that, if
passengers simply waited for Frontier to cancel the flights,
Frontier would be obligated to provide them with a full monetary
refund. Moreover, when a customer chose to preemptively cancel
their flight, Frontier did not refund them, through a travel credit
or otherwise.
Frontier's customer service has been "inadequate," and customers
have reported their calls being disconnected, long hold times, and
representatives providing "confusing and conflicting information,"
which has led customers not being able to discuss their options
with Frontier or "obtain reliable information regarding their
flights."
The named plaintiffs bring one claim for breach of contract against
Frontier on behalf of themselves and other passengers similarly
situated.
Specifically, the Plaintiffs argue that Frontier breached Section
18(C) of the Contract, which allegedly requires it to provide
either alternative transportation or a refund; Section 18(E), which
states that, if the schedule modification is significant, at
Frontier's discretion, it may offer a refund; Section 20(A)(1),
which allegedly incorporates DOT regulations requiring Frontier to
issue refunds when it cancels flights for any reason; and Section
22(A), which states that the Contract will be subordinate to
applicable law.
The Plaintiffs state that the breach occurred when Frontier failed
to provide monetary refunds upon request when Frontier cancelled
flights and when Frontier automatically re-booked passengers on
non-comparable flights without providing refunds upon request. By
failing to timely advise passengers that their flights would be
cancelled, the Plaintiffs argue that Frontier coerced them into
accepting travel credits or additional vouchers instead of cash
refunds, which customers would be entitled to when Frontier
cancelled the flights. Alternatively, the Plaintiffs argue,
Frontier entered into a new agreement with its customers when it
unilaterally imposed a 90-day expiration date on the travel
credits, which was not a term of Frontier's offer and formed no
part of any agreement with passengers.
Frontier filed a motion to dismiss the Plaintiffs' claim, arguing
that the Contract expressly prohibits class action claims, that
Frontier did not breach the Contract, and that the Plaintiffs have
no damages. Frontier also argues that plaintiffs cannot incorporate
federal law into their breach of contract claim, and even if they
could, that aspect of the claim would be preempted.
In addition, Frontier argues that the Plaintiffs cannot seek
damages other than compensatory damages, that the Plaintiffs lack
standing to pursue injunctive relief, and that the Plaintiffs, who
did not originally file complaints before consolidation--Bone,
Powell, Porreca, Dickstein, and Capra--must be dismissed because
the Plaintiffs did not seek or obtain permission from the Court to
join them.
Analysis
Chief District Judge Philip A. Brimmer states that the Court will
first address whether Plaintiffs Bone, Powell, Porreca, Dickstein,
and Capra, who did not previously file complaints against Frontier,
may proceed in this matter. Next, the Court will consider whether
the Plaintiffs failed to state a claim for breach of the Contract
and, if so, what relief they are entitled to.
Newly-Added Plaintiffs
Frontier argues that Plaintiffs Bone, Powell, Porreca, Dickstein,
and Capra must be dismissed from this action because they did not
seek leave to add these Plaintiffs to the amended complaint. After
consolidation, the parties agreed that the consolidated class
action complaint would supersede all pending complaints in the
consolidated actions. The Plaintiffs, thus, argue that, because the
consolidated class action complaint superseded all pending
complaints in all actions and became the "legally operative
complaint," they were permitted to add additional plaintiffs, which
they claim is common in this sort of litigation.
The Court agrees with the Plaintiffs. When the parties agreed that
the Plaintiffs were permitted to file a consolidated class action
complaint and that the new complaint would supersede any other
pending complaints, the parties also agreed that the original
complaints were of "no legal effect." Moreover, neither the Court's
order granting the unopposed motion to consolidate nor the parties'
status report limited the claims or parties that the Plaintiffs
were permitted to add or drop in the consolidated class action
complaint.
Even if the Plaintiffs had sought leave to amend, as Frontier
appears to believe would have been proper, the Court would have
found no undue delay, bad faith, or prejudice, Judge Brimmer holds.
First, the consolidated class action complaint was filed within the
time frame that the parties agreed to in the joint status report,
and Frontier was able to move to dismiss the newly-added plaintiffs
on the merits, which it has done, within the time that the parties
agreed to.
Second, given that the parties agreed that the consolidated class
action complaint superseded the original complaints yet did not
agree to limit the Plaintiffs' ability to amend the allegations or
parties in the consolidated complaint, the Court finds no bad
faith. Finally, there is no prejudice to Frontier in the addition
of Bone, Powell, Porreca, Dickstein, and Capra, as the amendment
does not unfairly affect Frontier in terms of preparing its defense
to the amendment, Judge Brimmer holds.
The Court will, therefore, deny Frontier's motion to dismiss the
claims of Bone, Powell, Porreca, Dickstein, and Capra based on them
being improperly added.
Failure to State a Claim
Frontier seeks dismissal of the Plaintiffs' claim for failure to
plausibly allege that Frontier breached the Contract. The elements
of a breach of contract claim under Colorado law are the existence
of a binding agreement; plaintiff's performance of plaintiff's
obligations or some justification for non-performance; defendant's
failure to perform its obligations; and damages resulting
therefrom, Judge Brimmer notes citing Western Distributing Co. v.
Diodosio, 841 P.2d 1053, 1058 (Colo. 1992).
The parties' dispute centers on the third element--whether the
Plaintiffs have plausibly alleged that Frontier failed to perform
its obligations under the Contract. In order to determine whether
the Plaintiffs have plausibly stated a claim, the Court must first
consider whether the DOT regulations and notices were incorporated
in the Contract and whether the Plaintiffs' claim is preempted by
the Airline Deregulation Act ("ADA").
The Plaintiffs contend that the Contract expressly incorporates
United States Department of Transportation ("DOT") notices and
other federal regulations because the Contract provides that
refunds will be subject to government laws, rules, regulations, or
orders of the country in which the ticket was originally purchased
and of the country in which the refund is being made, and that, in
all cases, this Contract of Carriage will be subordinate to any
applicable law.
The Plaintiffs allege that these regulations require airlines to
issue refunds when the airline cancels a flight and that Frontier
has violated these regulations by failing to provide refunds. The
Plaintiffs, thus, conclude that, because the regulations are
incorporated into the Contract, Frontier's failure to comply with
the regulations amounts to breach of the Contract. Frontier argues
that these provisions of the Contract do not incorporate federal
law or regulation.
The April 3, 2020 enforcement notice was published after the
Plaintiffs purchased their tickets. Thus, incorporation of that
notice into the Contract is impossible because the Plaintiffs and
Frontier could not have agreed to incorporate into the Contract a
notice that did not yet exist, Judge Brimmer holds. Additionally,
courts have found language similar to the Contract's to be too
general to effect incorporation.
The Court also finds that the Contract's general reference to
refunds being subject to the rules and regulations of the country
where the ticket was purchased and where the refund is being made
and that the Contract will be subordinate to applicable law,
insufficiently specific to incorporate the precise regulations that
the Plaintiffs cite to. There is also no clear intent on Frontier's
part to be bound by the specific regulations that the Plaintiffs
refer to.
The Court also finds that the Plaintiffs' allegations do not seek
to enlarge the contractual obligations or the breach of Contract
claim and are, therefore, not preempted by the ADA. In their
response to Frontier's motion, the Plaintiffs disclaim any intent
to exceed the bounds of the Contract and state that they seek
merely to enforce the Contract's express terms.
Thus, the Court does not consider the Plaintiffs' allegations that
Frontier has duped or tricked passengers outside of the Plaintiffs'
claim that Frontier did not perform the Contract.
Because the amended complaint alleges that Plaintiffs Rivera-De
Leon, Muters, Johnson, Porreca, and Capra cancelled their own
flights and received a travel credit, Frontier argues that they are
not entitled to further relief under the language of the Contract.
Judge Brimmer holds that the Plaintiffs are mistaken about what the
Contract requires. The Contract does not require those who cancel
their own flights prior to departure to be issued a monetary
refund. Rather, the Contract states, "[i]f a passenger cancels a
ticket before the scheduled flight departure time, the value of the
ticket less a service fee will be retained for 90 days from the
date of cancellation of the ticket in the form of an electronic
credit."
The Plaintiffs' arguments that Frontier breached the Contract by
sending emails intending to dissuade the Plaintiffs from securing a
refund and that this was "prevention or hindrance" are not
persuasive, Judge Brimmer holds. He explains that the Plaintiffs
rely on the Restatement for this argument; however, the Restatement
does not provide support. It states that prevention or hindrance
"of any occurrence or performance requisite under the contract" is
a breach of contract (Restatement (First) of Contracts Section 315
(1932)).
The Court will, therefore, dismiss the breach of contract claim for
the Plaintiffs, who cancelled their tickets before Frontier did,
because the Plaintiffs have failed to plausibly allege that
Frontier's conduct breached the Contact.
The Plaintiffs allege that Frontier breached the Contract by
providing only travel vouchers rather than refunds to the
Plaintiffs whose flights Frontier cancelled. These Plaintiffs
include Bone, Powell, and Dickstein. Frontier argues that the
Plaintiffs fail to plausibly allege that it breached the Contract
because it performed as the Contract required.
While it is true that a plaintiff's allegations are assumed to be
true on a motion to dismiss, the allegations must be sufficient to
meet the pleading burden of plausibility, Judge Brimmer notes. As
to Plaintiff Bone's re-booking, he does not allege that he refused
the schedule change and did not take the new flight. Moreover, the
Contract required Frontier to provide alternative transportation
or, if it could not, a refund.
The Plaintiffs do not allege that Frontier could not provide
alternative transportation such that it was obligated to refund
Bone's ticket upon request. Nor do the Plaintiffs allege that the
new flight was a "significant" change, permitting Frontier to
exercise its discretion to refund the ticket.
The Court, thus, finds that the Plaintiffs have failed to plausibly
allege that Frontier breached the Contract in its treatment of
Bone.
As to Plaintiff Powell, Frontier argues that the allegations are
vague and do not plausibly allege a breach of the Contract.
The Court finds that the allegations concerning Powell also fail to
plausibly allege that Frontier breached the Contract because
plaintiffs do not allege which flight Frontier cancelled, whether
Frontier was able to provide alternative transportation, or, if so,
whether the route change was so significant that Frontier may have
exercised its discretion to refund her ticket.
While Frontier is correct that the Contract permitted it to either
re-book Dickstein or provide him a refund, Dickstein has plausibly
alleged that this schedule modification the day before his trip,
such that he arrived to his destination 12 hours later than he
intended and had an overnight layover, was "significant," Judge
Brimmer notes. However, the Court finds that Dickstein's
allegations are not sufficient to allege he was entitled to a
refund from Frontier, as the Contract provides Frontier discretion
in this process.
Although the Contract is unclear what it leaves to Frontier's
discretion--discretion as to whether a schedule modification is
"significant" or discretion whether to provide a refund--this lack
of clarity has no bearing on the success of Dickstein's claim
because the Plaintiffs provide no allegations concerning Frontier's
exercise of its discretion or whether it did so improperly under
the Contract.
The Plaintiffs contend that no reasonable interpretation of the
Contract would "allow Frontier the discretion to regard a 12-hour
delay as insignificant." However, there are no allegations
regarding this issue in the complaint, and a motion to dismiss
tests the sufficiency of allegations in a complaint, Judge Brimmer
states.
The Court will, therefore, dismiss the complaint as to the
Plaintiffs whose flights Frontier cancelled.
Conclusion
For these reasons, Judge Brimmer ruled that the Motion to Dismiss
consolidated Class Action Complaint is granted, and the Named
Plaintiffs' breach of contract claim is dismissed with prejudice.
Judge Brimmer ordered that this case is closed.
A full-text copy of the Court's Order dated Sept. 13, 2021, is
available at https://tinyurl.com/zfhhc89j from Leagle.com.
FS PALO ALTO EMPLOYMENT: Johnson Seeks Unpaid Wages, Reimbursements
-------------------------------------------------------------------
Allen Johnson, on behalf of himself and all others similarly
situated, Plaintiffs, v. FS Palo Alto Employment, Inc. and Does 1
through 50, Defendants, Case No. 21CV386975 (Cal. Super., September
23, 2021), seeks unpaid wages and interest thereon for failure to
pay for all hours worked and minimum wage rate, reimbursement of
business-related expenses, statutory penalties for failure to
provide accurate wage statements, waiting time penalties in the
form of continuation wages for failure to timely pay employees all
wages due upon separation of employment, injunctive relief and
other equitable relief, reasonable attorney's fees, costs and
interest under California Labor Code, Unfair Competition Law of the
California Business and Professions Code and applicable Industrial
Welfare Commission Wage Orders including wrongful termination in
violation of public policy and anticipatory breach of contract.
Johnson worked as a non-exempt, hourly employee for FS Palo Alto at
their location in Santa Clara from May 17, 2017 to March 1, 2021.
He claims to have not received final wages at the time of his
termination, worked without meal and rest periods nor compensation
in lieu thereof, worked in excess of eight hours per workday or in
excess of forty hours per workweek without receiving compensation
at a rate of one and one half the regular rate of pay, received
inaccurately itemized and deficient wage statements, and was not
paid in a timely manner pertaining to the waiting time penalties.
[BN]
Plaintiff is represented by:
Larry W. Lee, Esq.
Kristen M. Agnew, Esq.
Nicholas Rosenthal, Esq.
DIVERSITY LAW GROUP, P.C.
515 S. Figueroa Street, Suite 1250
Los Angeles, CA 90071
Tel: (213) 488—6555
Fax: (213) 488—6554
GENERAC HOLDINGS: Kessler Topaz Reminds of October 19 Deadline
--------------------------------------------------------------
The law firm of Kessler Topaz Meltzer & Check, LLP on Sept. 21
disclosed that a securities fraud class action lawsuit has been
filed in the United States District Court for the Central District
of California against Generac Holdings Inc. (NYSE: GNRC)
("Generac") on behalf of those who purchased or acquired Generac
securities between February 23, 2021 and July 29, 2021, inclusive
(the "Class Period").
Investor Deadline Reminder: Investors who purchased or acquired
Generac securities during the Class Period may, no later than
October 19, 2021, seek to be appointed as a lead plaintiff
representative of the class. For additional information or to learn
how to participate in this litigation please contact Kessler Topaz
Meltzer & Check, LLP: James Maro, Esq. (484) 270-1453; toll free at
(844) 887-9500; via e-mail at info@ktmc.com; or click
https://www.ktmc.com/generac-class-action-lawsuit?utm_source=PR&utm_medium=link&utm_campaign=generac
Generac describes itself as a leading global designer and
manufacturer of a wide range of energy technology solutions, which
provides power generation equipment and other power products
serving the residential, light commercial and industrial markets.
On July 29, 2021, the United States Consumer Product Safety
Commission, Health Canada, and the Organisation for Economic
Co-operation and Development announced the Generac portable
generator recall, revealing that the company had received reports
of seven finger amputations and one finger crushing.
Following this news, Generac's stock price fell $31.04 per share,
or 7%, from its July 28, 2021 closing price over the next three
trading days to close at $400.00 per share on August 2, 2021.
The complaint alleges that, throughout the Class Period, the
defendants made false and/or misleading statements and/or failed to
disclose that: (1) Generac's portable generators posed an
unreasonable risk of injury to users and the public; (2) as a
result, at least seven finger amputations and one crushed finger
had been reported to the company; (3) as a result, Generac would
face increased regulatory scrutiny; (4) Generac would end sales in
its Generac® and DR® 6500 Watt and 8000 Watt portable generators
in the United States and Canada in June 2021; (5) Generac would
recall its Generac® and DR® 6500 Watt and 8000 Watt portable
generators in the United States and Canada; (6) the end of sales
and the recall would occur before Generac's noted hurricane and
wildfire seasons and following the Texas outage—periods the
company has touted for sales; and (7) as a result, defendants'
public statements and statements to journalists were materially
false and/or misleading at all relevant times.
Generac investors may, no later than October 19, 2021, seek to be
appointed as a lead plaintiff representative of the class through
Kessler Topaz Meltzer & Check, LLP or other counsel, or may choose
to do nothing and remain an absent class member. A lead plaintiff
is a representative party who acts on behalf of all class members
in directing the litigation. In order to be appointed as a lead
plaintiff, the Court must determine that the class member's claim
is typical of the claims of other class members, and that the class
member will adequately represent the class. Your ability to share
in any recovery is not affected by the decision of whether or not
to serve as a lead plaintiff.
Kessler Topaz Meltzer & Check, LLP prosecutes class actions in
state and federal courts throughout the country involving
securities fraud, breaches of fiduciary duties and other violations
of state and federal law. Kessler Topaz Meltzer & Check, LLP is a
driving force behind corporate governance reform, and has recovered
billions of dollars on behalf of institutional and individual
investors from the United States and around the world. The firm
represents investors, consumers and whistleblowers (private
citizens who report fraudulent practices against the government and
share in the recovery of government dollars). The complaint in this
action was not filed by Kessler Topaz Meltzer & Check, LLP. For
more information about Kessler Topaz Meltzer & Check, LLP please
visit www.ktmc.com.
CONTACT:
Kessler Topaz Meltzer & Check, LLP
James Maro, Jr., Esq.
280 King of Prussia Road
Radnor, PA 19087
(844) 887-9500 (toll free)
info@ktmc.com [GN]
GENERAC HOLDINGS: Pomerantz Law Firm Reminds of Oct. 19 Deadline
----------------------------------------------------------------
Pomerantz LLP on Sept. 21 disclosed that a class action lawsuit has
been filed against Generac Holdings Inc. and certain of its
officers. The class action, filed in the United States District
Court for the Central District of California, and docketed under
21-cv-07009, is on behalf of a class consisting of all persons and
entities other than Defendants that purchased or otherwise acquired
publicly traded Generac securities between February 23, 2021 and
July 29, 2021, inclusive (the "Class Period"). Plaintiff seeks to
recover compensable damages caused by Defendants' violations of the
federal securities laws under the Securities Exchange Act of 1934
(the "Exchange Act").
If you are a shareholder who purchased or otherwise acquired
Generac securities during the Class Period, you have until October
19, 2021 to ask the Court to appoint you as Lead Plaintiff for the
Class. A copy of the Complaint can be obtained at
www.pomerantzlaw.com. To discuss this action, contact
Robert S. Willoughby at newaction@pomlaw.com or 888.476.6529 (or
888.4-POMLAW), toll-free, Ext. 7980. Those who inquire by e-mail
are encouraged to include their mailing address, telephone number,
and the number of shares purchased.
Generac purports to be a leading global designer and manufacturer
of a wide range of energy technology solutions, which provides
power generation equipment and other power products serving the
residential, light commercial and industrial markets.
The complaint alleges that, throughout the Class Period, statements
made by Defendants were materially false and/or misleading because
they misrepresented and failed to disclose the following adverse
facts about the Company's business, operational and financial
results, which were known to Defendants or recklessly disregarded
by them. Specifically, Defendants made false and/or misleading
statements and/or failed to disclose that: (i) Generac's portable
generators posed an unreasonable risk of injury to users and the
public; (ii) as a result, at least seven finger amputations and one
crushed finger had been reported to the Company; (iii) as a result,
Generac would face increased regulatory scrutiny; (iv) the Company
would end sales in its Generac® and DR® 6500 Watt and 8000 Watt
portable generators in the U.S. and Canada in June 2021; (v) the
Company would recall its Generac® and DR® 6500 Watt and 8000 Watt
portable generators in the U.S. and Canada; (vi) the end of sales
and the recall would occur before the Company's noted hurricane and
wildfire seasons and following the Texas outage-periods the Company
has touted for sales; and (vii) as a result, Defendants' public
statements and statements to journalists were materially false
and/or misleading at all relevant times.
On July 29, 2021, the U.S. Consumer Product Safety Commission,
Health Canada, and the Organization for Economic Co-operation and
Development announced the Generac portable generator recall,
revealing that the Company had received reports of seven finger
amputations and one finger crushing.
On this news, Generac's stock price fell $31.04 per share, or 7%,
from its July 28, 2021 closing price over the next three trading
days to close at $400.00 per share on August 2, 2021, damaging
investors.
Pomerantz LLP, with offices in New York, Chicago, Los Angeles,
Paris, and Tel Aviv, is acknowledged as one of the premier firms in
the areas of corporate, securities, and antitrust class litigation.
Founded by the late Abraham L. Pomerantz, known as the dean of the
class action bar, Pomerantz pioneered the field of securities class
actions. Today, more than 85 years later, Pomerantz continues in
the tradition he established, fighting for the rights of the
victims of securities fraud, breaches of fiduciary duty, and
corporate misconduct. The Firm has recovered numerous
multimillion-dollar damages awards on behalf of class members. See
www.pomlaw.com.
CONTACT:
Robert S. Willoughby
Pomerantz LLP
rswilloughby@pomlaw.com
888-476-6529 ext. 7980
URL: http://www.pomlaw.com[GN]
GENERAC POWER: Wins Summary Judgment Bid in Craftwood TCPA Suit
---------------------------------------------------------------
In the lawsuit captioned CRAFTWOOD II, INC., a California
corporation, d/b/a Bay Hardware; CRAFTWOOD III, INC., a California
corporation d/b/a Lunada Bay Hardware, individually and as
representatives of all others similarly situated, Plaintiffs v.
GENERAC POWER SYSTEMS, INC., a Wisconsin corporation, Defendant,
Case No. 17 C 4105 (N.D. Ill.), the U.S. District Court for the
Northern District of Illinois, Eastern Division, issued a
Memorandum Opinion & Order:
(a) granting the Defendant's motion for summary judgment; and
(b) denying the Plaintiffs' motion to strike.
Plaintiffs Craftwood II, Inc., d/b/a Bay Hardware, and Craftwood
III, Inc., d/b/a Lunada Bay Hardware have filed a one-count
putative class action complaint against Defendant Generac, alleging
a violation of the Telephone Consumer Protection Act, 47 U.S.C.
Section 227 ("TCPA") for the three "junk" faxes. The Defendant has
moved for summary judgment, arguing that the Plaintiffs consented
to the faxes.
Background
When Plaintiffs Bay Hardware and Lunada Bay Hardware opened their
stores in 2009 and 2013, respectively, they applied to join Do It
Best ("DIB"), a hardware industry cooperative and wholesaler.
Joining DIB gives hardware stores access to cheaper goods from
certain vendors, promotional materials, as well as advertising and
buying assistance. To join the cooperative, each member store must
complete a Membership Agreement.
The Agreement states that DIB "agrees to sell its goods and provide
its advertising programs, training services and other programs to
Member (so long as Member makes timely payment therefore) at DIB's
established prices, terms, and conditions...." The Agreement later
has a section for the applicant to provide contact information,
including a fax number. The Agreement does not explicitly ask the
member to give permission for fax ads. Both Bay Hardware and Lunada
Bay completed the membership agreement and provided their fax
numbers.
In addition to specialized pricing, DIB provides an "Ad-Pak
program," which is an optional advertising program to help member
hardware stores with their outbound promotions to customers.
Although the description of the program is somewhat unclear, it
appears that DIB's vendors would send promotions to the member
hardware stores, which in turn would then pass on those promotions
to their customers. Both Bay Hardware and Lunada Bay Hardware opted
into the Ad-Pak program.
Comprehensive Marketing Inc. ("CMI") represents vendors in DIB,
such as Defendant Generac. CMI serves as an independent sales
representative and sends promotions to DIB members on behalf of DIB
vendors, often via fax. Vendors like the Defendant would provide
CMI with copies of the subject faxes, and CMI would send the faxes
to the DIB members. The three faxes of which the Plaintiffs
complain were sent by CMI on behalf of Generac. The Defendant
claims that at least one of these faxes was through the Ad-Pak
program--that is, the Defendant sent a promotion to Bay Hardware
for Bay Hardware to send to its customers.
The Defendant further asserts that in May 2012, a representative of
CMI, Sheri Davis, called Craftwood II and obtained the fax number
for Bay Hardware along with express permission to send fax
advertisements. At the time, Davis was calling member stores to ask
permission to send promotional faxes. She kept track of these calls
in a spreadsheet, where she also noted which DIB members provided
fax numbers and consented to receive fax promotions. Davis would
note whether the member did not want ads at all, or whether it
wanted ads from certain vendors and not others.
For Bay Hardware, Davis's spreadsheet has no qualifying notations.
It merely states the fax number which means, the Defendant argues,
that Bay Hardware gave full permission to receive fax ads from CMI.
Davis did not call the Lunada Bay Hardware store when making these
calls in 2012, because it was not yet in existence.
During her deposition, Davis also testified that DIB expected CMI
to send fax promotions and fax advertisements to DIB's members. She
testified that CMI "told" her this on many occasions, that it was
common practice, and that DIB generally expected that CMI would
send faxes to DIB members. Davis further testified that, beginning
in 2016, DIB would send CMI its own member fax list, with the
expectation that CMI would send faxes to those members.
The Plaintiffs contest nearly all of Davis's testimony, focusing on
her credibility and lack of memory (she can't remember who she
spoke to, or their race or gender), and raising hearsay objections.
The Plaintiffs also point to the testimony of Craftwood's president
and owner, David Brunjes, who claimed that he hates fax promotions
and would have never consented to them, and that he has no
recollection of Davis's phone call. Brunjes claimed that both
Lunada Bay Hardware and Bay Hardware have strict policies against
giving permission to receive fax ads.
The parties also contest the relationship between the two
Plaintiffs. The Plaintiffs note that Lunada Bay Hardware and Bay
Hardware are "affiliated," but claim that they are separate
entities, separate corporations, and that one's actions do not
affect the other. The Defendant argues that the Plaintiffs have the
same corporate address, are owned by the same individuals, one has
placed orders for the other, and that the owners have operated the
stores as a single unit. Davis testified that CMI assumed the
Plaintiffs were a "three store chain" based on the way Brunjes and
the stores operated.
Discussion
Summary judgment is appropriate when the movant shows that there is
no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law, notes District Judge
Robert W. Gettleman, citing Rule 56(a) of the Federal Rules of
Civil Procedure.
I. Local Rule 56.1
As a preliminary matter, Judge Gettleman notes that both the
Plaintiffs' and the Defendant's summary judgment pleadings violate
Local Rule 56.1. Local Rule 56.1 is intended to simplify matters
and make the court's job "easier," Portis v. City of Chi, 510
F.Supp.2d 461, 463 (N.D. Ill. 2007), by identifying for the court
the evidence supporting a party's factual assertions in an
organized manner.
In this case, it appears that the parties "intended to complicate
rather than simplify the court's task," Judge Gettleman states. He
explains that both the Plaintiffs and the Defendant quibble over
facts that should be straightforward admissions or denials.
In addition to their response, the Plaintiffs filed a motion to
strike certain portions of the Defendant's Local Rule 56.1
statement that contest the relevance of basic facts, complains that
individuals testifying about their own knowledge lack foundation,
makes lengthy hearsay objections, and argues that defendant raises
improper legal conclusions (the Plaintiffs do this as well). The
Judge points out that the motion to strike does little to advance
the Plaintiffs' position and serves to complicate rather than
simplify.
Although the Court declines to strike the inappropriate portions of
both parties' Local Rule 56.1 statements and declines to treat
improper denials as admissions, the Court will consider the Local
Rule 56.1 statements only to the extent they are supported by the
record and comply with the Local Rule. Hence, the Plaintiffs'
motion to strike is denied.
In addition, the Defendant's briefs improperly cite to raw record
materials rather than to its Local Rule 56.1 statement, which is a
blatant violation of the local rules, Judge Gettleman finds. He
points out that that violation alone is enough to deny the
Defendant's motion for summary judgment. The Court will, however,
in its discretion exercise leniency and consider the merits of the
Defendant's motion.
II. Summary Judgment Motion
The TCPA prohibits "unsolicited" fax advertisements, 47 U.S.C.
Section 227. The statute defines an "unsolicited advertisement" as
"any material advertising the commercial availability or quality of
any property, goods, or services which is transmitted to any person
without that person's prior express invitation or permission, in
writing or otherwise."
The Defendant argues that it is entitled to summary judgment
because the Plaintiffs gave prior, express permission to receive
the faxes.
The Plaintiffs make two arguments in response. First, the Seventh
Circuit has not expressly adopted the holding of the Eleventh
Circuit case, and second, the Plaintiffs' president, David Brunjes,
testified that he did not consent, and would not consent, to the
faxes, and this testimony precludes summary judgment. Regarding the
first argument, Judge Gettleman opines that although the Seventh
Circuit has not expressly adopted the Eleventh Circuit's holding,
the Seventh Circuit's analysis in Physicians Healthsource, Inc. v.
A-S Medication Solutions, LLC, 950 F.3d 959, 964-65 (7th Cir. 2020)
is strikingly similar, and there are no discernible conflicts
between the two courts' reasoning.
As for the second argument, Judge Gettleman opines, to preclude
summary judgment, there must be an issue of fact that is material,
meaning that the fact might affect the outcome of the suit. That
Brunjes testified that the faxes were unsolicited, and that Lunada
Bay and Bay Hardwood had strict policies against faxes, does not
affect the outcome of this case. The testimony about what Brunjes
subjectively thought is immaterial because both Bay Hardware and
Lunada Bay Hardware had already provided their express permission
in the Membership Agreements, the Judge points out.
Judge Gettleman also states that the Defendant's motion for Bay
Hardware is even stronger given Davis's phone call seeking
permission to send fax advertisements, along with Davis's testimony
about DIB's instructions to CMI to send frequent fax advertisements
to DIB members. The Plaintiffs object that Davis's testimony
regarding the phone call is not credible and that her testimony
regarding DIB's statements and instructions is inadmissible
hearsay. Consequently, because Davis's testimony is uncontested,
the Plaintiffs' first argument is a nonstarter.
As for the Plaintiffs' hearsay objections, the Defendant argues
that Davis's testimony is not offered for the truth of the matter
asserted, but rather for non-hearsay purposes. The Defendant also
contends that Davis's testimony relates to her instructions from
DIB, which are akin to a verbal act because their significance lies
in the fact that the instructions were made, and that Davis's
testimony shows the effect on her as the listener and her
understanding of what was authorized.
The Court agrees with the Defendant that Davis's testimony is not
hearsay, and considers it for non-hearsay purposes. Regardless of
the hearsay objections, the evidence of Davis's phone call to
Craftwood II and corresponding spreadsheet is admissible as a party
admission under F.R.E. 802(d)(2), and further supports the granting
of the Defendant's summary judgment motion regarding the faxes sent
to Bay Hardware, Judge Gettleman holds.
Finally, the Court says it need not address the issue of "lateral
veil piercing," and whether the two entities are effectively the
same. Although the Defendant provides compelling evidence that the
Craftwood stores behaved as multiple stores in a single chain as
opposed to separate legal entities, the Court need not reach that
issue. Because both Plaintiffs executed the same Member Agreement
with DIB, they individually consented to receive the subject
faxes.
Conclusion
For these reasons, the Defendant's motion for summary judgment is
granted, and the Plaintiffs' motion to strike is denied.
A full-text copy of the Court's Memorandum Opinion & Order dated
Sept. 13, 2021, is available at https://tinyurl.com/2m89ncwy from
Leagle.com.
GENERAL MOTORS: Court Dismisses Sproles Suit With Leave to Amend
----------------------------------------------------------------
The U.S. District Court for the Western District of Virginia, Big
Stone Gap, Division, dismisses with leave to amend the lawsuit
titled CHRISTOPHER SPROLES, individually and on behalf of all
others similarly situated, Plaintiff v. GENERAL MOTORS LLC,
Defendant, Case No. 2:21CV00016 (W.D. Va.).
In this products liability class action, the Named Plaintiff,
Christopher Sproles, sues Defendant GM, alleging a defective engine
contained in certain GM vehicles. GM has moved under Rule 12(b)(6)
of the Federal Rules of Civil Procedure to dismiss the Class Action
Complaint.
I.
The purchaser of a 2013 Chevrolet Silverado, Sproles brought this
putative class action on Feb. 18, 2021, on behalf of consumers, who
purchased model year 2011-2014 GM vehicles, manufactured on or
after Feb. 10, 2011, each equipped with the Generation IV 5.3-liter
Vortec 5300 LC9 engine ("Generation IV Vortec 5300 Engine").
The Generation IV Vortec 5300 Engines suffer from a design defect
primarily caused by inadequate coating around the piston rings.
This defect, which causes excessive oil loss, engine damage, and
ultimately engine failure, has been termed the Oil Consumption
Defect. GM knew about the defect from studies it acquired from its
corporate predecessor, "Old GM," reports it issued, and consumer
complaints documenting excessive oil loss, engine damage, and
engine failure. Despite this knowledge, GM took affirmative steps
to actively conceal the defect from the public and made misleading
or false statements that touted the engine's durability and
reliability.
A. Oil Consumption Defect.
In gasoline-powered automobile engines, a metal piston is pushed
upward and pulled downward, compressing air and fuel in a cylinder.
Once that compressed mixture is ignited by the spark plug, it
creates a combustion. That energy flows out of the cylinder's
exhaust valve and powers the vehicle.
Piston are fitted with flat, circular piston rings to seal the gaps
between the piston and the cylinder that houses it, providing the
air-tight pressure necessary for compression and combustion.
Pistons and their rings must be coated with a thin film of oil to
reduce friction, heat, and metal scarring as the metal components
slide past each other in the cylinder. Thus, the piston rings also
work as an oil sealant to keep oil in the crankcase and prevent it
from leaking into the combustion chamber.
Oil entering the combustion chamber can be burned in excessive
quantities and the resultant oil loss will cause the vehicle's
metal components to overheat, seize, and fail. That is what the
Plaintiff alleges occurs in GM's Generation IV Vortec 5300 Engine.
The piston rings in the Generation IV Vortec 5300 Engine eventually
lose their sealing capacity because GM coated them with an
inadequate sealing material that is supposed to prevent the ring
from wearing and grinding over time. But the sealant that GM chose
actually allows the piston ring to erode prematurely, permitting
excessive quantities of oil to reach the combustion chamber.
In the combustion chamber, the oil contaminates and fouls the spark
plugs which are responsible for providing the spark necessary for
combustion. When a fouled spark plug cannot ignite combustion
within a cylinder, that cylinder fails to produce power, resulting
in the engine not starting, stalling, or shutting down. Moreover,
oil is burned in excessive quantities in the combustion chamber,
which causes reduced lubrication of the vehicle's metal components,
and ultimately engine damage or failure.
Although the piston ring coating is the primary cause of the Oil
Consumption Defect, the oil loss is exacerbated by several other
features of the vehicles at issue. First, the Active Fuel
Management ("AFM") system, which converts engines from eight
cylinders to four cylinders during light duty operation, contains
an oil pressure relief valve that sprays oil at the piston rings.
But since the rings are inadequately sealed, the AFM function
causes more oil to escape. Second, a Positive Crankcase Ventilation
("PCV") system vacuums oil from the valvetrain into the intake
system where it is ultimately burned in the combustion chamber.
Finally, the Oil Life Monitoring System, oil pressure gauge, and
oil cannister symbol on the dashboard fail to alert drivers that
the quantity of oil in their vehicles is low, inducing them to
unknowingly drive with dangerously low oil and further damage their
engines.
B. GM's Knowledge.
Although GM knew or learned about the defect from studies, reports,
and consumers, it concealed the issue from the public. Old GM first
began manufacturing the Generation IV Vortec 5300 Engine in 2007
and learned of the Oil Consumption Defect as early as 2008. In the
latter year, an employee named Grant Tappan conducted a root cause
analysis of excessive oil consumption in the Engines. Additionally,
in June 2008 Generation IV Vortec 5300 Engine consumers began
making numerous complaints of excessive oil consumption to
dealerships, third-party blogs, and later the National Highway
Traffic Safety Administration.
Specifically, they complained of using a quart of oil a week, burnt
out spark plugs, engine failures causing drivers to be stranded on
the side of the road, no oil appearing on the dipstick despite no
"low-oil" warnings, and "smoke" emanating from the exhaust. GM was
put on notice of such complaints because some were filed "against
it directly," others were documented in GM's warranty data reviewed
by employee Steve Pfromm during 2009-2010, and GM's dealers made
other complaints known to it. In May 2009, GM engineer Arthur
Miller opined that the excessive oil consumption "likely followed"
from a defect in the piston rings.
After Old GM filed for Chapter 11 bankruptcy on June 8, 2009, this
Defendant emerged as its successor on July 10, 2009, and "acquired
the assets of Old GM." Shortly thereafter, GM conducted two
investigations of its own which confirmed what its predecessor had
first discovered. First, GM launched Red X, an internal
investigation into fouled spark plugs, rough running engines, and
excessive oil loss. A January 2010 Executive report of that
investigation concluded that "oil consumption clearly follows the
piston/ring assembly." Second, GM generated a December 2012 Problem
Investigation, which collected widespread reports of similar
complaints that had been submitted to dealerships. GM marked this
document "confidential" and "withheld the findings from the
public."
GM likewise concealed its knowledge about the defect from its
dealerships. From August 2010 until Nov. 26, 2014, GM issued twelve
Technical Service Bulletins to dealerships, instructing them on how
to address complaints about excessive oil loss, piston repairs,
fouled spark plugs, and rough running in the Generation IV Vortec
5300 Engine. GM attempted to conceal the defect by recommending to
its dealerships that they attempt repairs and design
modifications--proposals that GM knew would be "ineffective"
according to its own February 2010 5.3L LC9 Oil Consumption report,
as it knew the "ultimate fix" was "replacement of the piston
assemblies."
C. GM's Fraudulent Statements.
Although GM knew that vehicles equipped with a Generation IV Vortec
5300 Engine suffered from excessive oil loss and premature engine
failure, it falsely promoted vehicles with those engines as "safe,"
"reliable," and "durable" in brochures, commercials, radio
advertisements, and website postings. As relevant to the specific
claims asserted in this case, GM made the following statements
touting the reliability of vehicles containing a Generation IV
Vortec 5300 Engine.
A brochure for GM's 2010 Chevrolet Colorado stated that "every
Colorado has the endurance and dependability you expect from a
Chevy truck." GM claimed in a 2011 Chevrolet Silverado brochure
that the vehicles were "the most dependable, long-lasting full size
pickups on the road." On Aug. 29, 2011, GM advertised on its
website that "Chevrolet provides consumers with fuel-efficient,
safe and reliable vehicles."
In addition to making affirmative statements, GM's failure to
disclose certain facts likewise deceived customers. Specifically,
GM never indicated in its marketing materials that vehicles
equipped with a Generation IV Vortec 5300 Engine suffered from a
fatal flaw in design and materials--the Oil Consumption Defect.
D. Plaintiff's Vehicle.
In November 2012, Plaintiff Sproles, a citizen of Virginia,
purchased a new 2013 Chevrolet Silverado equipped with a Generation
IV Vortec 5300 Engine from a dealership in Coeburn, Virginia. The
vehicle came certified with GM's New Vehicle Limited Warranty. In
purchasing the vehicle, Sproles relied on unspecified commercials
that he had seen promoting the reliability and durability of the
Chevrolet Silverado. Like many other customers, GM never disclosed
to Sproles the purported Oil Consumption Defect in the Generation
IV Vortec 5300 Engine. If he had known about the defect, Sproles
claims that he would have paid less for the vehicle or not
purchased it at all.
E. The Present Action.
Mr. Sproles has brought this putative class action on behalf of
himself and all who purchased or leased the following model year
2011-2014 GM vehicles, which are all manufactured with a Generation
IV Vortec 5300 Engine: Chevrolet Avalanche, Silverado, Suburban,
Tahoe, GMC Sierra, Yukon, and Yukon XL ("Class Vehicles").
Specifically, Sproles asserts claims for violation of the Virginia
Consumer Protection Act (Count I), breach of express and implied
warranties (Counts II and III), fraudulent nondisclosure (Count
IV), violation of the Magnuson-Moss Warranty Act (Count V), and
unjust enrichment (Count VI).
Mr. Sproles seeks to represent two classes of plaintiffs--those who
purchased or leased class vehicles in Virginia, and those who
purchased or leased the same anywhere in the United States. He
asserts subject matter jurisdiction based on the parties' diverse
citizenship, 28 U.S.C. Section 1332(a), and the Class Action
Fairness Act, 28 U.S.C. Section 1332(d). It is alleged that the
amount in controversy exceeds five million dollars and that one or
more of the putative class members are citizens of a different
state than GM.
Other class actions against GM have been filed arising from the Oil
Consumption Defect in the Generation IV Vortec 5300 Engine.
Certified classes have survived summary judgment with regard to
implied warranty or consumer protection claims. Sloan v. Gen.
Motors LLC, No. 16-CV-07244-EMC, 2020 WL 1955643, at *52 (N.D. Cal.
Apr. 23, 2020) (California, North Carolina, and Texas implied
warranty); Siqueiros v. Gen. Motors LLC, No. 16-CV-07244-EMC, 2021
WL 2115400, at *27 (N.D. Cal. May 25, 2021) (Idaho consumer
protection). Another action has been dismissed under Rule 12(b)(6).
Tucker v. Gen. Motors, LLC, No. 1:20-CV-254-SNLJ, 2021 WL 2665761,
at *8 (E.D. Mo. June 29, 2021).
GM has filed a motion under Rule 12(b)(6) to dismiss the Complaint
in its entirety for failure to state a claim. Although the parties
have fully briefed the motion, they have not addressed whether
Sproles has standing under Article III.
II.
To establish standing under Article III, a plaintiff must have "(1)
suffered an injury in fact, (2) that is fairly traceable to the
challenged conduct of the defendant, and (3) that is likely to be
redressed by a favorable judicial decision." Spokeo, Inc. v.
Robins, 136 S.Ct. 1540, 1547 (2016).
Senior District Judge James P. Jones opines that Sproles has failed
to establish an injury in fact because he has not plausibly alleged
that his vehicle has the specific defect alleged--improperly sealed
piston rings. The lone factual allegation to suggest that Sproles'
vehicle contains this defect is that he "has noticed his 2013
Silverado consumes an excessive amount of oil" since November 2016.
But the physical manifestations of the asserted defect are
reportedly legion.
According to the Class Action Complaint, vehicles with improperly
sealed piston rings require a quart of oil or more per week, suffer
from burnt or fouled spark plugs, emanate blue or black smoke from
the exhaust, do not start, run roughly, stall, or fail. This
invites the Court to infer that because Sproles' vehicle shares a
single common effect with other vehicles, then they must also share
a common cause (defective piston rings).
Judge Jones finds that Sproles has not provided any factual
allegations that would render such an inference reasonable. Unlike
other consumers, Sproles does not claim to have done an oil
consumption test thru his local dealer to confirm the rings are
leaking allowing oil to be burned. Nor has he claimed two
easily-alleged and direct indications that his piston rings are not
properly sealing: that oil and carbon buildup have contaminated his
spark plugs and combustion chamber. Simply put, alleging that
Sproles' engine uses an unspecified amount of oil is not sufficient
to allege that his vehicle has defective piston rings, Judge Jones
points out.
Since Sproles has failed to allege a defect in his vehicle, he has
no injury in fact to support any of his claims. Indeed, his
requested damage in each count of the Complaint is predicated on a
single injury: his overpayment for a defective vehicle that did not
conform to GM's warranties or statements of fact. Thus, any
"diminution" in his vehicle's value, or "actual damages" for which
he seeks to be recompensed would be contingent upon his purchase of
a defective vehicle, Judge Jones notes. But Sproles has simply
alleged that his vehicle may contain a defect. Judge Jones opines
that this speculative or hypothetical injury cannot support any of
his claims.
What is more, the Complaint's factual allegations do not establish
that the oil consumption in Sproles' vehicle is fairly traceable to
the challenged action of the Defendant, and not the result of the
independent action of some third party not before the Court.
Although Sproles invites the inference that his vehicle's oil
consumption is caused by GM's design defect, he does nothing to
connect the two, Judge Jones notes. Sproles has not alleged, as
other consumers have, that a mechanic has inspected his vehicle and
told him that GM's "piston rings" are "the issue" causing the oil
loss. Indeed, the Complaint does nothing to indicate that Sproles'
oil loss is due to defective piston rings that GM installed, or any
other choice that GM made in design or materials. He claims to
suffer from an isolated issue which could have many plausible
diagnoses--some wholly unrelated to GM's design of his engine.
Without more, Sproles has not met his burden to show that the oil
usage in his vehicle has been caused by GM's design rather than his
own conduct or that of a third party. Therefore, he has not
plausibly alleged traceability.
In sum, Judge Jones finds, Sproles has failed to establish two
elements of standing. First, he has not established an injury in
fact because he has not plausibly alleged that his vehicle is
defective--the basis of his purported injury. Second, he has failed
to establish that any oil issue currently plaguing his vehicle can
be fairly traced to GM's conduct. Whatever defect GM's Generation
IV Vortec 5300 Engine may have, Sproles has not shown at this point
that he has standing to bring this suit to recover for it.
III.
For these reasons, the Class Action Complaint is dismissed. The
Motion to Dismiss is terminated as moot. The Plaintiff is granted
leave to file an Amended Class Action Complaint, if he can,
provided it is filed no later than 21 days from this date. If no
such Amended Class Action Complaint is timely filed, this action
will be dismissed without prejudice.
A full-text copy of the Court's Opinion and Order dated Sept. 13,
2021, is available at https://tinyurl.com/46jaddfj from
Leagle.com.
Lisa S. Brook -- lbrook@michiehamlett.com -- E. Kyle McNew --
kmcnew@michiehamlett.com -- and J. Gregory Webb --
gwebb@michiehamlett.com -- MICHIEHAMLETT, in Charlottesville,
Virginia; Adam J. Levitt -- alevitt@dicellolevitt.com -- Daniel R.
Ferri -- dferri@dicellolevitt.com -- and John E. Tangren --
jtangren@dicellolevitt.com -- DICELLO LEVITT GUTZLER LLC, in
Chicago, Illinois; W. Daniel "Dee" Miles, III --
dee.miles@beasleyallen.com -- H. Clay Barnett, III --
clay.barnett@beasleyallen.com -- and J. Mitch Williams --
Mitch.williams@Beasleyallen.com -- BEASLEY, ALLEN, CROW, METHVIN,
PORTIS & MILES, P.C., in Montgomery, Alabama, for the Plaintiff and
Proposed Class.
Kathleen Taylor Sooy -- ksooy@crowell.com -- April N. Ross --
aross@crowell.com -- and Rachel P. Raphael -- rraphael@crowell.com
-- CROWELL & MORING LLP, in Washington, D.C., for the Defendant.
GERBER PRODUCTS: Baby Food Suit Moved From New Jersey to Virginia
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In the lawsuit styled IN RE GERBER PRODUCTS COMPANY BABY FOOD
LITIGATION, Lead Case No. 21-1977 (CCC) (D.N.J.), Chief Magistrate
Judge Mark Falk of the U.S. District Court for the District of New
Jersey grants the Plaintiffs' motion to transfer the consolidated
action to the U.S. District Court for the Eastern District of
Virginia.
The lawsuit is a consolidated case comprised of 13 putative class
actions asserting a variety of claims against Defendant Gerber.
These putative class actions assert false advertising and similar
claims against Gerber stemming from a Feb. 4, 2021 report issued by
a subcommittee of the United States House of Representatives
relating to the alleged presence of heavy metals in certain baby
foods.
The class actions are: (1) Shepard, et al. v. Gerber Products Co.,
No. 21-01977; (2) Moore v. Gerber Products Co., No. 21-02516; (3)
Muslin Pierre-Louis v. Gerber Products Co., No. 21-04791; (4) Kelly
et al. v. Gerber Products Co. No. 21-12504; (5) Eldridge v. Gerber
Products Co., 21-12910; (6) Douglas v. Gerber Products Co.,
21-12354; (7) Robbins v. Gerber Products Co. et al., 21-12666; (8)
McNealy v. Gerber Products Co., 21-9064; (9) Fondacaro et al. v.
Gerber Products Co., 21-5032; (10) Martin et al. v. Gerber Products
Co., 21-5846; (11) Henry et al. v. Gerber Products Co., 21-5864;
(12) Wallace et al. v. Gerber Products Co., 21-9980; (13) Lawrence
et al. v Gerber Baby Products, 21-13676.
The first-filed case in this District against Gerber stemming from
the Report, Shepard v. Gerber Products Co., No. 21-01977, was filed
on Feb. 5, 2021. Since then, 12 other, similar putative class
actions were filed in this Court.
On March 12, 2021, the Plaintiffs in Shephard moved to consolidate
the cases. The Plaintiff in Moore v. Gerber Products Co., then
filed a cross-motion seeking to transfer the cases to the Eastern
District of Virginia. On consent of the parties and without
prejudice to the Moore Plaintiffs' request to transfer, the Court
entered an Order on May 21, 2021, consolidating the then-pending
cases and any other class action arising out of the same or similar
operative facts subsequently filed in this Court.
The Moore Plaintiffs and Martin Plaintiffs have requested transfer
of this consolidated action to Virginia. It appears that at least
36 Plaintiffs have filed suit against Gerber in the Eastern
District of Virginia alleging the same or similar claims against
Gerber. In response, Gerber has moved to transfer those cases to
the District of New Jersey. On June 28, 2021, the Honorable Liam
O'Grady, Senior U.S.D.J., entered an Order holding those cases--and
the motion to transfer to New Jersey--in abeyance until this Court
decides the motion to transfer.
The Motion to Transfer
Judge Falk notes that this motion is somewhat unusual in that the
Plaintiffs are seeking to transfer these consolidated
cases--including their own, which they chose to file here--to
another district. In the more traditional sense, it is usually a
defendant seeking to transfer a case to an allegedly more
convenient or appropriate forum. The Plaintiffs seek transfer on
two basic grounds pursuant to 28 U.S.C. Sections 1404(a) and
1406(a).
First, the Plaintiffs admit that they mistakenly filed suit in an
improper district. Specifically, the Plaintiffs state that they
filed their Complaints in New Jersey under the belief that Gerber's
principal place of business was in New Jersey at the time of
filing. It was not. Starting in 2018 and concluding in 2019,
Gerber, a Michigan corporation, undertook a relocation of its
corporate headquarters from Florham Park, New Jersey, to Arlington,
Virginia. Thus, at the time these cases were filed, Gerber was a
Michigan corporation with its principal place of business in
Virginia. That would mean there is general jurisdiction over Gerber
in Virginia.
Seeking to correct their error, the Plaintiffs claim proceeding in
New Jersey creates issues of personal jurisdiction and that it is
in the best interests of all parties and the court to transfer all
of these cases to a district that has general personal jurisdiction
over Gerber.
Second, the Plaintiffs contend that the Section 1404(a) transfer
considerations support transfer, in particular the possibility for
duplicate work and effort of counsel and the Court; and that the
relative congestion of the courts favors transfer to the Eastern
District. Finally, the Plaintiffs contend that Gerber wants to
remain in New Jersey for strategic purposes--i.e., that they
believe that the requirements to certify a class under Rule 23 of
the Federal Rules of Civil Procedure are more onerous in this
Circuit.
Gerber and the Shepard Plaintiffs oppose transfer. They contend
that some of the decision-making with respect to the events
underlying the claims in the case occurred when Gerber was in New
Jersey. Gerber also states that it will not contest personal
jurisdiction in this District "with respect to this and similar
disputes." They also contend that some Gerber employees that could
have relevant information to the claims may be located in New
Jersey.
Decision
A "transfer analysis is flexible and must be made on the unique
facts of each case," Judge Falk notes, citing Calkins v.
Dollarland, Inc., 117 F.Supp.2d 421, 428 (D.N.J. 2000). Here, there
is a unique circumstance. The Plaintiffs filed a complaint in this
District attempting to secure general personal jurisdiction over a
corporation based on the assumption that their principal place of
business was in New Jersey. As it turns out, the Plaintiffs were
wrong; Gerber's principal place of business is not in New Jersey;
Gerber has been sued in its actual principal place of business for
the same allegations as those presented here; and now, the
Plaintiffs want to transfer these cases, including their own, to
the actual home forum while Gerber wants to proceed in the
mistakenly chosen, foreign forum.
Upon the consideration of the facts of these cases and the Section
1404(a) factors, transfer of this case to the Eastern District of
Virginia is appropriate for the convenience of the parties and in
the interests of justice, Judge Falk holds.
Judge Falk explains that there is the issue of general personal
jurisdiction. This is a proposed nationwide class action alleging
Gerber has engaged in false advertising and made affirmative
misrepresentations and omissions regarding the presence of heavy
metals in baby foods. Some of these events allegedly occurred while
Gerber was in New Jersey, but some did not. He adds, among other
things, that the relevant private interest factors independently
support transfer to Virginia, and that the public factors also
support transfer.
As is the result when the traditional Section 1404(a) factors are
considered, the Court finds for reasons explained, the interests of
justice support transfer of these cases to Virginia, where they
could be joined with the cases pending there, free of any plausible
concern relating to jurisdiction and in Gerber's home forum.
Conclusion
For the reasons set forth in this Opinion, the Plaintiffs' motion
to transfer venue is granted. An appropriate Order will be
entered.
A full-text copy of the Court's Opinion dated Sept. 13, 2021, is
available at https://tinyurl.com/hk9f5xb5 from Leagle.com.
GERBER PRODUCTS: Dempsey Hits Nondisclosure of Toxins in Baby Food
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Hannah Dempsey and Kathleen Hood, on behalf of themselves and all
others similarly situated, Plaintiffs, v. Gerber Products Company,
Defendant, Case No. 21-cv-01080 (E.D. Va., September 23, 2021),
seeks injunctive relief resulting from negligent misrepresentation,
fraud, unjust enrichment, breaches of express warranty, implied
warranty of merchantability and for violation of the Connecticut
Trade Practices Act and the Missouri Merchandising Practices Act.
Gerber packages, labels, markets, advertises, formulates,
manufactures and distributes infant food throughout the United
States.
This action derives its claim from a recent report by the U.S.
House of Representatives' Subcommittee on Economic and Consumer
Policy, Committee on Oversight and Reform revealing that certain
brands of commercial baby food (including Gerber products made with
ingredients such as rice flour, sweet potatoes, certain juices,
certain juice concentrates, and carrots, among other ingredients)
are tainted with significant and dangerous levels of toxic heavy
metals, including arsenic, lead, cadmium and mercury saying that
exposure to toxic heavy metals causes permanent decreases in IQ and
endangers neurological development and long-term brain function,
among numerous other deleterious alarming conditions and problems.
Plaintiff seeks full disclosure of all such substances and
ingredients in Gerber's marketing, advertising and labeling, and
requiring testing of all ingredients and final products for such
substances. [BN]
Plaintiff is represented by:
Michael G. Phelan, Esq.
Jonathan M. Petty, Esq.
Christopher P. Yakubisin, Esq.
Brielle M. Hunt, Esq.
PHELAN PETTY, PLC
3315 West Broad Street
Richmond, VA 23230
Telephone: (804) 980-7100
Facsimile: (804) 767-4601
Email: mphelan@phelanpetty.com
Jpetty@phelanpetty.com
cyakubisin@phelanpetty.com
bhunt@phelanpetty.com
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Mark S. Reich, Esq.
Courtney E. Maccarone, Esq.
LEVI & KORSINSKY, LLP
55 Broadway, 10th Floor
New York, NY 10006
Telephone: (212) 363-7500
Facsimile: (212) 363-7171
Email: mreich@zlk.com
cmaccarone@zlk.com
GIGACQUISITIONS2 LLC: Laidlaw Sues Over Uphealth/Cloudbreak Mergers
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Cody Laidlaw, individually and on behalf of himself and similarly
situated current and former stockholders of GigCapital2, Inc.
("Gig2"), Plaintiff, v. GIGACQUISITIONS2, LLC, Raluca Dinu, Avi S.
Katz, Neil Miotto, John Mikulsky and Gil Frostig, Defendants, Case
No. 21-cv-07336 (N.D. Cal., September 21, 2021), is a class action
complaint asserting: (i) breach of fiduciary duty claims stemming
from Gig2's merger with UpHealth Holdings, Inc. and UpHealth Meger
Sub, Inc. and its merger with Cloudbreak Health, LLC and Cloudbreak
Merger Sub, LLC against (a) Avi S. Katz, Raluca Dinu, Neil Miotto,
John Mikulsky and Gil Frostig, in their capacities as members of
the Gig2's board of directors and/or Gig2 officers, and (b)
GigAcquisitions2, LLC ("Sponsor") and Katz, in their capacity as
Gig2's controller; and (ii) unjust enrichment of Sponsor and Katz.
According to the complaint, Katz and the Board orchestrated the
mergers with Uphealth and Cloudbreak, which closed on June 9, 2021.
However, these transactions were losing propositions for Gig2
public stockholders, alleges the complaint. The Board provided no
meaningful oversight, serving instead as a rubberstamp. There were
no fairness opinions and no special committee. The
deeply-conflicted members of the Board also breached their duty of
loyalty by approving the Mergers and their financing, and
recommending the transactions to stockholders, it adds.
By approving the Mergers and retaining their shares, Gig2
stockholders saw their shares decline in price to $9.38 on the day
the Mergers closed, and to $3.99 on September 13, 2021, three
months since the Mergers -- a period during which the NYSE
composite index rose slightly. Total losses to public shareholders
since the date of the Mergers are $34 million, the complaint
relates.
Due to the conflicts of interest on the part of the Board and the
Sponsor, which drove the Board's decision to approve the Mergers,
the Mergers require judicial review for entire fairness, asserts
the complaint. [BN]
Plaintiff is represented by:
Michael J. Barry, Esq.
Michael D. Bell, Esq.
GRANT & EISENHOFER P.A.
123 Justison St., 7th Floor
Wilmington, DE 19801
Tel: (302) 622-7000
Email: mbarry@gelaw.com
mbell@gelaw.com
HARVEST HOSPITALITIES: Duke Granted Leave to Narrow Wage Complaint
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In the case, TAYLOR DUKE, Plaintiff v. HARVEST HOSPITALITIES, INC.,
SATTAR SHAIK, Defendants, Case No. 2:20-CV-00865-CCW (W.D. Pa.),
Judge Christy Criswell Wiegand of the U.S. District Court for the
Western District of Pennsylvania granted Duke's Motion (on behalf
of herself and similarly situated employees) for Leave to Narrow
the Complaint and Dismiss Certain Opt-Ins Without Prejudice.
Background
The Plaintiff is a former employee of the Defendants' IHOP
restaurants in Robinson and Homestead, Pennsylvania. He alleges
that Defendant Harvest is a restaurant chain operating over twenty
IHOP restaurants in Pennsylvania and throughout the United States,
and that Defendant Sattar Sheik owns and operates Harvest.
In the case, the Plaintiff alleges that the Defendants failed to
pay him and the other similarly situated employees of the
Defendants' restaurants certain wages, including minimum wage and
overtime, that are required under the Fair Labor Standards Act
("FLSA") and the Pennsylvania Minimum Wage Act ("PMWA"). He also
asserts a breach of contract claim under the Pennsylvania Wage
Payment and Collection Law ("WPCL"). The case includes both a
collective action component under the FLSA, as well as a class
action component.
On June 12, 2020, the Plaintiff filed an "Individual and Collective
and Class Action Complaint" on behalf of herself and similarly
situated employees seeking damages under the FLSA, PMWA and WPCL
due to Defendants' alleged failure to pay certain wages (including
minimum wage and overtime). After the Defendants answered the
Complaint, the Plaintiff filed a First Amended Complaint that
expanded the scope of this action to include claims under the laws
of Maryland, New Jersey, and Virginia, which Defendants answered on
Oct. 30, 2020.
On Nov. 18, 2020, the Court granted the parties' Agreed Motion for
Approval of Stipulation to Conditional Certification, and
conditionally certified a collective action pursuant to 29 U.S.C.
Section 216(b) that includes "all hourly paid workers employed by
IHOP stores within the Harvest Hospitalities franchise at any time
from Oct. 23, 2017 to the present." The opt-in period closed on
Feb. 26, 2021, and 293 individuals filed opt-in forms. Fact
discovery is ongoing and is scheduled to close on Oct. 29, 2021.
In her current Motion, the Plaintiff seeks leave to narrow the case
by voluntarily dismissing certain opt-in Plaintiffs so that the
remaining FLSA collective would be limited to restaurants in and
around Pittsburgh and Harrisburg, Pennsylvania. He also seeks to
file a Second Amended Complaint that would conform the pleadings to
the voluntary dismissal by reducing the scope of claims to only
those involving Plaintiff and other similarly situated employees in
the Pittsburgh and Harrisburg regions. The Defendant opposes the
Plaintiff's Motion and requests that these opt-in plaintiffs be
dismissed with prejudice or, in the alternative, with conditions
sufficient to protect Defendants from legal prejudice.
Analysis
a. Opt-in Plaintiffs are Entitled to Voluntary Dismissal without
Prejudice
In an exercise of its sound discretion, Judge Wiegand finds that
the opt-in plaintiffs in the action who did not work in the
restaurants in the Pittsburgh and Harrisburg area should be
dismissed without prejudice.
i. Risk of Excessive and Duplicative Expense of a Second
Litigation
Given the FLSA context, Jduge Wiegand finds that dismissal of
opt-in plaintiffs would not increase the risk of excessive and
duplicative expense of a second litigation. If, at the time of
final certification, the Court were to find that the members of the
proposed collective action are not "similarly situated," the opt-in
plaintiffs would be dismissed without prejudice and each opt-in
plaintiff would be entitled to file another suit against the
Defendants.
Moreover, Judge Wiegand is not aware of any opt-in plaintiff's
intent to pursue another action and, even if that were the case, a
substantial amount of the discovery efforts would arguably be
relevant to such second case. She says delaying withdrawal without
prejudice of opt-in plaintiffs to the time of final certification
would only lead to a greater risk of excessive and duplicative
expense of a second litigation.
ii. Effort and Expense Incurred by the Defendant in Preparing for
Trial
To assess the effort and expense incurred by the defendant in
preparing for trial, courts look at both how long the case has been
pending and how much activity has occurred during that time. In the
case, the parties are still in discovery, and there is no
indication that any opt-in plaintiff has been uncooperative with
respect to discovery. Further, both substantive motions in the case
were resolved by the parties' consent.
Judge Wiegand finds that the Defendants' effort and expenses are
related to pre-trial discovery and not substantive motion practice
or preparation for trial. Further, a significant number of opt-in
plaintiffs will remain after the withdrawal. Therefore, this factor
of the Rule 41(a)(2) analysis favors the Plaintiff.
iii. Extent to Which the Current Suit Has Progressed
With respect to the extent to which the case has progressed, the
Plaintiff's Motion comes prior to the close of both fact and expert
discovery, prior to significant contested motion practice
(including final certification or decertification) and prior to any
trial date being scheduled. Judge Wiegand finds that the fact that
the Plaintiff's motion was filed prior to the close of factual
discovery and any motion on final certification weighs in favor of
the Plaintiff.
iv. Plaintiff's Diligence in Bringing the Motion to Dismiss and
Explanation Thereof
Judge Wiegand finds that the Plaintiff has been diligent in
bringing her Motion and that her justification is compelling. The
Plaintiff alleges that recent depositions, and responses to the
Defendants' interrogatories from more than 150 opt-in plaintiffs,
led her to believe that the alleged wage violations "involve, to a
greater degree than initially believed, conduct that occurred at
the district and restaurant level," as opposed to at a broader,
Harvest-wide level. These alleged violations "include numerous
accounts of modifications at the restaurant level" and "wage
violations that Plaintiff Duke did not experience." Because the
alleged violations are somewhat more localized than initially
expected, the Plaintiff now seeks to narrow the complaint prior to
"any opt-in depositions or supplemental opt-in discovery."
Further, Judge Wiegand finds that the Plaintiff's reason for
seeking to narrow the scope of this action now -- because
"discovery revealed the extent of region- and restaurant-specific
wage violations" and to avoid pursuing an "overbroad" collective
action -- is compelling. Dismissing certain opt-in plaintiffs at
this earlier stage of litigation will promote an efficient of use
of the parties' and the Court's resources and streamline issues "by
resolving common issues arising from the same activity in the same
proceeding."
v. Pendency of a Dispositive Motion by the Nonmoving Party
Despite vague assertions by the Defendants that the Plaintiff seeks
to "gain a tactical advantage relative to settlement negotiations,"
the fact that the Plaintiff's Motion was filed at a time when no
dispositive motion is pending weighs in favor of voluntary
dismissal.
Based on the factors she discussed, Judge Wiegand grants the
Plaintiff's Motion and dismiss without prejudice the opt-in
plaintiffs who did not work in the restaurants in the Pittsburgh
and Harrisburg area.
b. The Voluntary Dismissal Without Prejudice Is Not Conditional
Judge Wiegand now turns to the Defendants' request that this Court
impose conditions including costs and attorney fees, no tolling of
the statute of limitations, and "ordering that notice of the
dismissals will be given to all members of the putative class." A
District Court has broad discretion in its decision to dismiss the
case "on terms that the court considers proper."
In support of their request for costs and fees, the Defendants rely
heavily on Hernandez -- indeed, it is the only FLSA case cited by
Defendants in their request for cost and fees -- but ignore that
the Hernandez court severely circumscribed its award of cost and
fees by allowing only costs with respect to the removal
proceedings, not those for "time expended in answering the
complaint and preparing basic discovery disclosures," because such
"work would be useful in later state-court class action litigation
of these issues," citing Hernandez v. Chipotle Mexican Grill, No.
16-CV-571-JPS, 2016 U.S. Dist. LEXIS 166782 at *4-5 (E.D. Wis. Dec.
2, 2016).
In the case, the discovery conducted to date by the Defendants will
likely be useful in any hypothetical future suit by the dismissed
opt-in plaintiffs. Accordingly, Judge Wiegand finds that an award
of costs (and of attorney's fees) is not warranted. Therefore, she
will not attach conditions to the dismissal without prejudice of
the opt-in plaintiffs who did not work in the restaurants in the
Pittsburgh and Harrisburg area.
c. Good Cause Exists to Amend the Complaint to Narrow the Scope of
Claims
Finally, Judge Wiegand turns to the Plaintiff's request to file a
Second Amended Complaint to conform the pleadings to the Court's
ruling on dismissal of opt-in Plaintiffs who did not work in the
restaurants in the Pittsburgh and Harrisburg area. Prior to its
analysis under Rule 15(a) to amend a complaint, the Court must
address whether the Plaintiff has shown good cause under Rule
16(b)(4) -- that is, whether the Plaintiff has shown diligence.
The Defendants argue not only that the Plaintiff has lacked
diligence by its failure to: (1) conduct any investigation to
confirm that there was a good faith factual basis to broaden the
scope of pleadings in the first place; (2) interview opt-ins
plaintiffs in the locations outside of Pennsylvania; and (3) take
management depositions to confirm the existence of common claims.
They also claim that the inconsistencies between certain
depositions from the Plaintiff's witnesses as compared to their
declarations show that the declarations were "greatly exaggerated,
if not false." The Plaintiff argues that after receiving a critical
mass of opt-in interrogatory responses, she raised this issue with
the Defendants.
Judge Wiegand finds that the Plaintiff has acted with reasonable
diligence and therefore satisfies Rule 16(b)(4)'s good cause
requirement. First, she says, the Plaintiff seeks leave to amend
her complaint while discovery is still ongoing, which is indicative
of diligence. Thus, the Plaintiff has acted with reasonable
diligence. Second, the Defendants' arguments regarding the
Plaintiff's alleged lack of diligence and good faith investigation
prior to broadening the scope of the action through her first
amended pleading are also uncompelling. The Judge does not agree
with the Defendants that the Plaintiff failed to exercise diligence
"in performing any pre-suit investigation or early discovery to
confirm that there was a good faith factual basis" to expand the
scope of this action in the first instance.
With respect to the more liberal standard to amend the complaint
under Rule 15(a), Judge Wiegand finds that the Plaintiff has not
acted with undue delay, bad faith or dilatory motives. Further, an
amendment to narrow the scope of the ongoing litigation would not
be futile. Finally, not only has the Court discussed the potential
prejudice to the Defendants in the context of Rule 41(a)(2), the
amendment, which seeks to narrow the complaint, would not give rise
to additional "discovery, cost, and preparation to defend against
new facts or new theories."
Conclusion
For the foregoing reasons, the Plaintiff's Motion for Leave to
Narrow the Complaint and Dismiss Certain Opt-Ins Without Prejudice
is granted.
A full-text copy of the Court's Sept. 17, 2021 Memorandum Opinion
is available at https://tinyurl.com/n9unx2w from Leagle.com.
HDI GLOBAL: Florida Court Dismisses Atma Beauty Insurance Suit
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In the lawsuit titled ATMA BEAUTY, INC., Plaintiff v. HDI GLOBAL
SPECIALTY SE, AXIS SPECIALTY EUROPE SE, UNDERWRITERS AT LLOYD'S
LONDON SUBSCRIBING TO POLICY NUMBER RSK003959, and UNDERWRITERS AT
LLOYD'S LONDON KNOWN AS SYNDICATES AFB 2623, AFB 623, APL 1969, ARG
2121, BRT 2987, BRT 2988, HIS 33, KLN 510, MMX 2010, MSP 318, NVA
2007, TRV 5000, AND XLC 2003, Defendants, Case No.
1:20-cv-21745-GAYLES (S.D. Fla.), the U.S. District Court for the
Southern District of Florida grants the Defendants' Motion to
Dismiss the Amended Class Action Complaint.
The Motion was filed by Defendants HDI Global Specialty SE, Axis
Specialty Europe SE, Underwriters at Lloyd's London Subscribing to
Policy Number RSK003959, and Underwriters at Lloyd's London Known
as Syndicates AFB 2623, AFB 623, APL 1969, ARG 2121, BRT 2987, BRT
2988, HIS 33, KLN 510, MMX 2010, MSP 318, NVA 2007, TRV 5000, and
XLC 2003.
Plaintiff Atma Beauty, Inc., owns and operates a full-service salon
and medical spa in Miami Beach, Florida. On Dec. 19, 2019, the
Defendants issued an all-risk insurance policy that insured the
physical premises of the Plaintiff's salon and income generated
from the salon. The Policy's coverage period was from Dec. 19,
2019, to Dec. 19, 2020.
The Plaintiff paid monthly premiums in exchange for the Defendants
covering certain losses and expenses, including loss of business
income due to suspension of the salon's operations, expenses
incurred during the salon's suspension, and loss resulting from
actions of a civil authority that prohibited access to the salon.
The Policy
The general coverage provision of the Policy states that the
Defendants will pay for direct physical loss of or damage to
Covered Property at the premises caused by or resulting from any
Covered Cause of Loss. A "Covered Cause of Loss" under the Policy
means "Risks of Direct Physical Loss" unless the loss is excluded
or limited. The Policy includes a standard form titled "Business
Income (and Extra Expense) Coverage Form" that outlines coverage
for various losses and expenses.
The Policy provides coverage for loss of business income resulting
from a Covered Cause of Loss. The Policy also provides payment for
necessary expenses the Plaintiff incurs during the "period of
restoration" that it would not have incurred if there had been no
direct physical loss or damage to property caused by or resulting
from a Covered Cause of Loss. This "Extra Expense" payment is
designed to avoid or minimize the suspension of business and to
continue operations at the covered premises or at an alternative
location or to minimize the suspension of business if the Plaintiff
cannot continue operations. The Policy will also provide payment
under this provision to repair or replace property, but only to the
extent it reduces the amount of loss during the period of
restoration.
The Policy also provides coverage for loss of business income
caused by the actions of a civil authority and states in pertinent
part that: "When a Covered Cause of Loss causes damage to property
other than property at the covered premises, the Defendants will
pay for the actual loss of Business Income you sustain and
necessary Extra Expense caused by action of civil authority that
prohibits access to the covered premises, provided that both of the
following apply: (1) Access to the area immediately surrounding the
damaged property is prohibited by civil authority as a result of
the damage, and the covered premises are within that area but are
not more than one mile from the damaged property; and (2) The
action of civil authority is taken in response to dangerous
physical conditions resulting from the damage or continuation of
the Covered Cause of Loss that caused the damage, or the action is
taken to enable a civil authority to have unimpeded access to the
damaged property."
Factual Background
In response to the SARS CoV-2 virus ("COVID-19") pandemic,
businesses across the United States were forced to close, severely
limit and/or change their operations, and reconfigure their
premises to mitigate, prevent, and contain the spread of COVID-19
on their properties. On March 12, 2020, the City of Miami Beach
declared a State of Emergency in response to the COVID-19 pandemic
and, on April 23, 2020, extended the State of Emergency through
April 30, 2020. The State of Emergency required the closure of all
non-essential retail and commercial establishments in Miami Beach,
including the Plaintiff's salon.
On March 19, 2020, Miami-Dade County issued Emergency Order 07-20,
which also required that all non-essential businesses close. On
March 30, 2020, the Governor of Florida signed Executive Order
20-89, which ordered counties in Florida--including Miami-Dade
County--to restrict public access to non-essential businesses.
The Plaintiff states that the presence of COVID-19 caused direct
physical loss of and/or damage to the salon in two ways. First, it
physically contaminated the air and surfaces of Plaintiff's
property, which eliminated, impaired, or limited the use of the
property. The Plaintiff made efforts to mitigate, prevent, contain,
and reduce the contamination but could not do so permanently or
reliably.
Second, the Plaintiff had to physically alter its property,
including: (1) installing physical barriers throughout its
property; (2) using harsh cleaning agents that cause surfaces to
deteriorate faster; (3) significantly reducing the occupancy of its
property; and (4) reducing the number of stations at which beauty
services are provided. The Plaintiff also states that the presence
of COVID-19 caused all or part of the property to be uninhabitable
by customers and caused the property's physical function to be
nearly eliminated, destroyed, and/or severely limited.
Although the Plaintiff implemented decontamination protocols, it
could not eliminate the presence of COVID-19 or fully mitigate its
losses. First, the cleaning protocols could not eliminate COVID-19
contamination because of the possibility of recurring
contamination. Second, the physical alterations the Plaintiff made
to its property caused a loss of business income. Third, the
Plaintiff's cleaning protocols caused loss and damage to the
property because the use of harsh cleaning agents deteriorated
surfaces more rapidly.
Additionally, the actions of civil authorities prohibiting public
access to the salon and surrounding areas in response to the
COVID-19 pandemic caused the Plaintiff's business operations to
suspend. In response, the Plaintiff provided notice to the
Defendants of its losses and expenses, as required by the Policy.
However, the Defendants refused to provide coverage under the
Policy.
Procedural History
On April 27, 2020, the Plaintiff filed this action against the
Defendants for declaratory relief and monetary damages pursuant to
the Policy. On July 14, 2020, the Defendants moved to dismiss the
Plaintiff's Complaint, which the Court granted on Dec. 30, 2020.
On Jan. 25, 2021, the Plaintiff filed its Amended Class Action
Complaint (the "Amended Complaint") which brings claims for: (1)
declaratory judgment as to the Business Income, Extra Expense, and
Civil Authority Coverage provisions (Counts I, III, and V); and (2)
breach of contract of the Business Income, Extra Expense, and Civil
Authority Coverage provisions (Counts II, IV, and VI). On Feb. 16,
2021, the Defendants filed the instant Motion seeking dismissal of
the Amended Complaint with prejudice.
Discussion
In their Motion, the Defendants seek to dismiss the Plaintiff's
Amended Complaint with prejudice. The Defendants argue that the
Plaintiff fails to establish that the presence of COVID-19 caused a
"direct physical loss of or damage to" the insured property to
trigger the Business Income Coverage provision of the Policy.
Additionally, the Defendants argue that the Plaintiff fails to
properly establish a claim under the Civil Authority Coverage
provision of the Policy. In the alternative, the Defendants argue
that the microorganism and pollution exclusions bar coverage of the
Plaintiff's claims.
The Court finds that the Plaintiff fails to establish that its
claims are covered under the Policy.
District Judge Darrin P. Gayles notes that to trigger coverage
under the Business Income Coverage and Civil Authority Coverage
provisions of the Policy, the Plaintiff must prove that there was
"direct physical loss of or damage to" the insured property or a
nearby property while the Policy was in effect.
The Plaintiff argues that the presence of COVID-19 on its property
physically changed the condition of its property from usable and
inhabitable to unusable, uninhabitable, and unfit for its intended
purpose of beauty services, and dangerous and unsafe for human
occupation. The Plaintiff also details the physical alterations it
made to its property in response to COVID-19, which include: (1)
reconfiguration of seating; (2) installation of plexiglass shields
and additional sanitizer dispensers; (3) enhancement of air
filtration systems; and (4) more frequent replacement of equipment
due to deterioration from increased cleaning.
However, Judge Gayles states, courts in this Circuit have almost
uniformly dismissed these types of allegations as insufficient to
establish coverage.
First, Judge Gayles opines, the mere presence of the virus on the
physical structure of the premises does not amount to direct
physical loss, citing Mena Catering, Inc. v. Scottsdale Ins. Co.,
512 F.Supp.3d 1309, 1318 (S.D. Fla. 2021). The Eleventh Circuit
recently affirmed this finding. Second, the physical alterations
the Plaintiff made in order to avoid contamination of COVID-19 on
its property do not qualify as physical loss or damage to the
property, Judge Gayles holds, citing Bourgier v. Hartford Cas. Ins.
Co., No. 21-CIV-21053, 2021 WL 3603601, at *4 (S.D. Fla. Aug. 12,
2021), et al.
The Court is cognizant of the effects of the COVID-19 pandemic on
the Plaintiff's business; however, the Court declines to depart
from the prevailing consensus in this Circuit.
The Plaintiff also argues that it qualifies for coverage under the
Civil Authority Coverage provision of the Policy as a result of the
City of Miami Beach, Miami-Dade County, and the State of Florida's
emergency orders in response to the COVID-19 pandemic. Triggering
the Civil Authority Coverage provision of the Policy first requires
a showing of damage to property other than property at the covered
premises. The Plaintiff argues that the emergency orders prohibited
public access to the covered premises and the surrounding area in
response to dangerous physical conditions in the vicinity of the
Plaintiff's salon and caused a suspension of business operations on
the covered premises.
However, Judge Gayles finds, this is insufficient to establish
coverage under the Policy. First, the emergency orders were issued
in response to the presence of COVID-19, not in response to damage
to nearby property that limited access to the Plaintiff's property.
Second, as previously stated, the possible presence of COVID-19 at
nearby properties would similarly not qualify as physical loss or
damage to those properties such that the Civil Authority Coverage
provision would be triggered.
Thus, the Court finds that the Plaintiff's allegations, even if
taken as true, do not plausibly show direct physical loss or damage
to the insured property or nearby property to trigger coverage
under the Civil Authority Coverage provision of the Policy.
Because the Plaintiff fails to establish coverage under either the
Business Income Coverage or Civil Authority Coverage provisions of
the Policy, the Defendants' Motion is granted and the Plaintiff's
Amended Complaint will be dismissed with prejudice.
Conclusion
Accordingly, it is ordered and adjudged as follows:
1. Defendants HDI Global Specialty SE, Axis Specialty Europe
SE, Underwriters at Lloyd's London Subscribing to Policy
Number RSK003959, and Underwriters at Lloyd's London Known
as Syndicates AFB 2623, AFB 623, APL 1969, ARG 2121, BRT
2987, BRT 2988, HIS 33, KLN 510, MMX 2010, MSP 318, NVA
2007, TRV 5000, and XLC 2003's Motion to Dismiss the
Amended Class Action Complaint is granted;
2. Plaintiff Atma Beauty, Inc.'s Amended Class Action
Complaint is dismissed with prejudice;
3. Any pending motions are denied as moot; and
4. This case is closed.
A full-text copy of the Court's Order dated Sept. 13, 2021, is
available at https://tinyurl.com/3z52wewj from Leagle.com.
HETERO USA: Court Rules on Bids to Seal in Bystolic Antitrust Suit
------------------------------------------------------------------
Judge Lewis J. Liman of the U.S. District Court for the Southern
District of New York issued an order addressing several pending
motions to seal in the case, IN RE BYSTOLIC ANTITRUST LITIGATION,
Case No. 20-cv-5735 (LJL) (S.D.N.Y.).
Judge Liman's decisions on these motions are without prejudice to
the Court's unsealing either on motion or sua sponte.
The motion at Dkt. No. 102 is denied. The motion at Dkt. No. 106 is
granted, and the exhibits at Dkt. Nos. 104-2 through 104-16 will
remain under seal. The Clerk is respectfully directed to unseal
Dkt. Nos. 103, 104, 104-1, 104-17, 104-18.
The motions at Dkt. Nos. 110 and 112 are denied. The motion at Dkt.
No. 139 is granted. The Plaintiffs will file the partially redacted
complaints consistent with the redactions at Dkt. Nos. 139-1 and
139-2.
The motion at Dkt. No. 221 is granted, and the exhibit at Dkt. No.
222-3 may be maintained under seal.
The motion at Dkt. No. 224 is denied. The motion at Dkt. No. 237 is
granted, and the memorandum and declaration will be filed in
partially redacted form as set forth in Dkt. Nos. 237-1 and 237-2,
respectively. The exhibits filed at Dkt. Nos. 227-1 through 227-19
will remain under seal.
The motion at Dkt. No. 249 is granted to the extent that it seeks
to file publicly a second consolidated and amended class action
complaint with redactions consistent with those approved at Dkt.
No. 161.
All filings to be made in the form directed by the Order on the
public docket by Sept. 20, 2021. The Clerk is respectfully directed
to close the motions at Dkt. Nos. 102, 106, 110, 112, 139, 221,
224, 237, and 249.
A full-text copy of the Court's Sept. 17, 2021 Order is available
at https://tinyurl.com/49tr57vz from Leagle.com.
HF FOODS: California Court Tosses Mendoza Class Suit With Prejudice
-------------------------------------------------------------------
In the case, JESUS MENDOZA, Plaintiff v. HF FOODS GROUP INC., et
al., Defendants, Case No. 2:20-cv-02929-ODW (JPRx) (C.D. Cal.),
Judge Otis D. Wright, II, of the U.S. District Court for the
Central District of California entered a judgment in favor of the
Defendants.
In light of the Court's Order granting the Defendants' Motion to
Dismiss along with the Plaintiffs' subsequent failure to timely
amend, Judge Wright ordered that the Defendant will have Judgment
in its favor. The Plaintiffs will recover nothing from the
Defendants. The Plaintiffs' Amended Class Action Complaint is
dismissed on the merits and with prejudice.
The Clerk of the Court will close the case.
A full-text copy of the Court's Sept. 17, 2021 Order is available
at https://tinyurl.com/3bjux8vs from Leagle.com.
HORIZON HEALTHCARE: Champey ERISA Suit Removed to D. New Jersey
---------------------------------------------------------------
The case styled CHAMPEY PAIN GROUP, MINE HILL SURGICAL CENTER, and
MINE HILL ANESTHSIA GROUP, individually and on behalf of all others
similarly situated v. HORIZON HEALTHCARE SERVICES, d/b/a HORIZON
BLUE CROSS BLUE SHIELD OF NEW JERSEY, Case No. ESX-L-6563-21, was
removed from the Superior Court of New Jersey, Essex County, Law
Division, to the U.S. District Court for the District of New Jersey
on September 29, 2021.
The Clerk of Court for the District of New Jersey assigned Case No.
3:21-cv-17815 to the proceeding.
The case arises from the Defendant's alleged denial of health
insurance coverage under the Employee Retirement Income Security
Act.
Champey Pain Group is a chronic pain management provider based in
New Jersey.
Mine Hill Surgical Center is a surgical center in New Jersey.
Mine Hill Anesthsia Group is a health care provider in New Jersey.
Horizon Healthcare Services, doing business as Horizon Blue Cross
Blue Shield Of New Jersey, is a health insurance provider,
headquartered in Newark, New Jersey. [BN]
The Defendant is represented by:
Patricia A. Lee, Esq.
CONNELL FOLEY LLP
56 Livingston Avenue
Roseland, NJ 07068
Telephone: (973) 535-0500
Facsimile: (973) 535-9217
E-mail: plee@connellfoley.com
IEC CORP: FCC's Bid to Compel Arbitration in Britt Suit Granted
---------------------------------------------------------------
The U.S. District Court for the Southern District of Florida grants
FCC's Motion to Compel Arbitration in the lawsuit styled KAREEM
BRITT, et al., Plaintiffs v. IEC CORP., et al., Defendants, Case
No. 20-60814-CIV-ALTMAN/Hunt (S.D. Fla.).
The Defendants in the case are Florida Career College ("FCC") and
its parent company, IEC Corporation. They are referred to
collectively, as "FCC."
When the Plaintiffs, Kareem Britt and Sharon Henry, enrolled in
FCC, they agreed to arbitrate any claims they might later bring
against the School. In 2016, the Department of Education
promulgated a series of regulations that required any school
participating in a federal student-loan program (like FCC) to waive
the arbitration agreements they had signed with their students. In
accordance with those regulations, FCC sent its students a notice,
in which it waived its right to arbitrate. But that notice wasn't
timeless. It made clear that FCC's waiver would "apply to your
arbitration agreement with FCC for any period during which these
regulations are in effect."
While this case was pending, a new set of Department of Education
regulations took effect. These new regulations, among other things,
erased the prior scheme's anti-arbitration provisions. Because the
now-excised regulations--which conditioned federal aid on the
School's waiver--are no longer in effect, FCC's waiver has expired,
and the parties are bound by their original agreement to
arbitrate.
Background
The Plaintiffs--Kareem Britt and Sharon Henry--are former students
at FCC, a for-profit vocational school. Britt and Henry brought
this putative class action against FCC, alleging (1) breach of
contract; (2) negligence; (3) violations of the Florida Deceptive
and Unfair Trade Practices Act; (4) violations of the Equal Credit
Opportunity Act; and (5) violations of Title VI of the Civil Rights
Act of 1964. They aver, in short, that FCC engages in certain
"deceptive" conduct and that the School uses discriminatory
admissions practices.
When they enrolled at FCC, each Plaintiff entered into a contract
with the School, consisting of an Enrollment Agreement and a Course
Catalog. Each of the Enrollment Agreements contained an arbitration
clause. The Enrollment Agreements also included class-action
waivers, which required the students to arbitrate their claims
individually. When signing their Enrollment Agreements, Britt and
Henry acknowledged that they had read, understood, and agreed to
the arbitration clauses and class-action waivers.
Congress passed Title IV of the Higher Education Act of 1965
("HEA") to expand access to higher education. The HEA gives the
Secretary of Education authority to include in its program
participation agreements such "provisions as the Secretary
determines are necessary to protect the interests of the United
States." The Old Regulations amended the rules that govern the
terms of the program participation agreements "to prohibit
participating schools from using predispute arbitration agreements
or class action waivers."
In May 2019, consistent with these provisions, FCC sent a notice to
its current students ("Notice"). FCC sent the Notice to Britt, who
was a current student at the time, but never sent it to Henry, who
(by that time) had left the school. In its cover email, FCC told
its students that it was "providing them with the attached notice
as a supplement to their Enrollment Agreement." It then went on to
say this: "When you enrolled at Florida Career College, you signed
a pre-dispute arbitration agreement that contained a class action
waiver. Under federal law, Florida Career College is providing you
with the notice below. These provisions are included pursuant to
U.S. Department of Education regulations at 34 C.F.R. Section
685.300(e) and (f), respectively, and shall apply to your
arbitration agreement with Florida Career College for any period
during which these regulations are in effect."
District Judge Roy K. Altman notes that FCC, thus, waived its right
to arbitrate "for any period during which these regulations [34
C.F.R. Section 685.300(e) and (f)] are in effect."
On Sept. 23, 2019, the Department of Education promulgated
amendments to the Old Regulations ("New Regulations"). The New
Regulations went into effect on July 1, 2020. As relevant in the
case, the New Regulations removed the requirement that schools
agree to waive their arbitration agreements and class-action bans.
The Case
The Plaintiffs filed this lawsuit on April 20, 2020. About a
month-and-a-half later, on June 1, 2020, FCC filed an (initial)
motion to compel arbitration or, in the alternative, to dismiss. At
that time, the Old Regulations were still in effect. As a result,
FCC relied--not on the view that its waiver was ineffectual--but on
the narrower contention that the Plaintiffs' claims didn't qualify
as "borrower defense claims."
In advancing this argument, though, FCC observed that "the BDR
Regulations are in flux," and it expressly "reserved its right to
compel arbitration of any remaining claims in the event of new
legal or factual developments." When it filed its reply brief, on
July 6, 2020, the New Regulations had gone into effect just five
days earlier.
About five months later (on Dec. 3, 2020), at the hearing on its
initial motion to compel arbitration, FCC told the Court that
there'd been a big change in the legal landscape.
While noting that FCC hadn't pointed the Court to this change in
the law in its reply or in a subsequent notice of supplemental
briefing, Judge Altman--to give both sides an adequate opportunity
to litigate the issue--nonetheless concluded as follows: "What I'll
do is, I think I'll probably deny your motion to arbitrate and then
you could just file a new motion to arbitrate based on newly
developed facts."
The Court, thus, declined to opine on the issue one way or the
other without the benefit of full briefing. Several months have
passed, and the issue is now ripe for resolution.
Analysis
In assessing a party's motion to compel arbitration, Judge Altman
asks whether: (1) a written agreement exists between the parties
containing an arbitration clause; (2) an arbitrable issue exists;
and (3) the right to arbitration has not been waived, citing Sims
v. Clarendon Nat. Ins. Co., 336 F.Supp.2d 1311, 1326 (S.D. Fla.
2004) (Altonaga, J.).
A. The Parties Agreed to Arbitrate
The parties in the case agreed to arbitrate, Judge Altman finds.
When Britt and Henry enrolled at FCC, they each executed an
Enrollment Agreement that contained materially identical
arbitration clauses, through which the Plaintiffs promised that
"any dispute I may bring against School shall be resolved by
binding arbitration." Both students specifically initialed the
arbitration clause, signifying their acceptance, and acknowledged
that they had read, understood, and agreed to the terms of the
agreement. The parties, in short, entered into a written
arbitration agreement.
Judge Altman also holds that the language of the Notice is clear
that FCC's waiver of its right to arbitrate "shall apply to your
arbitration agreement with Florida Career College for any period
during which these regulations [34 C.F.R. Section 685.300(e) and
(f)] are in effect." And those "regulations"--which required
schools to waive their arbitration agreements and class-action
bans--are no longer in effect.
When the Department of Education promulgated the New Regulations,
it removed from the regulations the provisions covering class
action bans and pre-dispute arbitration agreements, Judge Altman
explains. Hence, the "period" during which those Old Regulations
were in effect has, thus, ended.
B. The Issues Are Arbitrable
Judge Altman notes that the parties have agreed to submit any
dispute no matter how characterized, pleaded or styled to binding
arbitration, citing Britt Enrollment Agreement and Henry Enrollment
Agreement. That expansive opening clause--covering any
dispute--plainly includes the claims the Plaintiffs have filed
here. Unsurprisingly, Judge Altman says, Britt and Henry never
dispute this point.
C. FCC Has Not Waived its Right to Arbitrate
Because FCC has consistently pushed for arbitration--from the very
beginning of this case--it hasn't, by its conduct, waived its right
to arbitrate, implicitly or otherwise, Judge Altman opines.
Judge Altman explains that in determining whether a party has
waived its right to arbitrate, a two-part test has been
established, citing Ivax Corp. v. B. Braun of Am., Inc., 286 F.3d
1309, 1315 (11th Cir. 2002). First, the Court must decide if, under
the totality of the circumstances, the party has acted
inconsistently with the arbitration right. Second, the Court must
look to see whether, by doing so, that party has in some way
prejudiced the other party.
Plaintiffs Britt and Henry stumble at both steps: they can show
neither that FCC acted inconsistently with its right to arbitrate
nor that they've been prejudiced in any meaningful way, Judge
Altman holds.
Conclusion
After a careful review of the record, the briefing, and the
applicable law, the Court orders and adjudges as follows:
1. The Motion to Compel Arbitration is granted;
2. The parties will submit their dispute to individual
arbitration;
3. The case is stayed pending arbitration;
4. The Clerk will close this case. All pending deadlines and
hearings are terminated, and any pending motions are denied
as moot;
5. Every ninety (90) days from the date of this Order, the
parties will jointly file a report on the status of their
arbitration proceedings; and
6. Within fifteen (15) days of the arbitration's conclusion,
the parties will jointly file a notice briefly describing
the outcome of that arbitration.
A full-text copy of the Court's Order dated Sept. 13, 2021, is
available at https://tinyurl.com/9w6vczbr from Leagle.com.
INTER-CON SECURITY: Wins Bid to Dismiss Beltran's Labor Claims
--------------------------------------------------------------
In the lawsuit styled Guillermo Beltran, et al., Plaintiffs v.
Inter-Con Security Systems, Inc. et al., Defendants, Case No.
2:21-cv-04927-VAP-(AFMx) (C.D. Cal.), District Judge Virginia A.
Phillips of the U.S. District Court for the Central District of
California issued an order:
-- denying the Plaintiff's Motion to Remand; and
-- granting the Defendant's Motion to Dismiss.
Plaintiffs Guillermo Beltran, et al., filed a Motion to Remand on
June 29, 2021. Defendants Inter-Con Security Systems, Inc., et al.,
filed opposition on Aug. 23, 2021, and Beltran replied on Aug. 30,
2021. Inter-Con filed a Motion to Dismiss on Aug. 9, 2021. Beltran
filed opposition on Aug. 23, 2021, and Inter-Con replied on Aug.
30, 2021.
Background
Mr. Beltran filed this putative class action in Los Angeles
Superior Court against Inter-Con. Beltran and other putative class
members worked as Armed Nuclear Security Officers for Inter-Con at
San Onofre Nuclear Generating Station ("SONGS") located in Camp
Pendleton, California. The First Amended Complaint alleges that
Inter-Con failed to pay overtime wages and failed to provide rest
periods to Beltran and other putative class members. Accordingly,
Beltran asserts labor law claims and unfair business practices
claims against Inter-Con.
On June 16, 2021, Inter-Con timely removed the Complaint to this
Court based on federal question jurisdiction by asserting the
federal enclave doctrine.
Motion to Remand
Mr. Beltran argues the Court lacks federal question subject matter
jurisdiction and thus remand is warranted. He contends he alleges
only state law claims and, therefore, a federal defense, like the
federal enclave doctrine, fails to create federal question
jurisdiction.
Judge Phillips holds that Mr. Beltran's arguments fail because
federal courts have federal question jurisdiction over tort claims
that arise on federal enclaves, citing Durham v. Lockheed Martin
Corp., 445 F.3d 1247, 1250 (9th Cir. 2006).
As a threshold matter, SONGS, located within Camp Pendleton, is a
federal enclave, Judge Phillips points out. Further, although the
parties do not raise it, the Court notes that under 40 U.S.C.
section 3112, Undersecretary of the Navy James Forrestal's letter
establishes the date that the United States acquired federal
jurisdiction. Under section 3112(b), an authorized officer of the
United States must accept jurisdiction "by filing a notice of
acceptance with the Governor of the State or in another manner
prescribed by the laws of the State where the land is situated."
As required by statute, Undersecretary of the Navy James Forrestal,
an authorized officer of the United States, formally accepted
jurisdiction of Camp Pendleton as of Dec. 31, 1942, in his letter
to then-California Governor Earl Warren. Accordingly, although
Beltran asserts only state law claims, the claims arise on the
federal enclave of Camp Pendleton, and the Court, therefore, has
federal question jurisdiction over Beltran's claims.
Mr. Beltran next argues that, even assuming the federal enclave
doctrine applies, federal jurisdiction extends to only the subclass
of employees, who worked at the federal enclave and not those who
worked elsewhere.
Judge Phillips holds that Mr. Beltran's argument again is
unavailing. The Complaint's other proposed subclass also includes
those who worked on the federal enclave. In other words, she notes,
Beltran fails to identify a subclass of only those who worked
exclusively outside the federal enclave. Accordingly, original
jurisdiction extends to all subclasses because they include
employees who worked at SONGS.
For these reasons, the Court has original jurisdiction over Mr.
Beltran's action.
Motion to Dismiss
Mr. Beltran argues that his state labor law claims are not barred
because the California statutes, upon which the Complaint is based,
preceded the date that SONGS became a federal enclave. The FAC
alleges, in part, violations of California Labor Code Sections 226,
226.7, and 512(a), as well as Business and Professions Code
Sections 17200, et seq.
Judge Phillips holds that Mr. Beltran's argument lacks merit. She
explains that only state laws in effect at the time of cession or
transfer of jurisdiction can continue in operation. Laws enacted by
the state after transfer of jurisdiction do not apply in the
federal enclave unless they come within a reservation of
jurisdiction or are adopted by Congress.
As described, SONGS is located within the federal enclave of Camp
Pendleton, which the United States acquired in 1942. California
Labor Code Section 226 was enacted in 1943, Section 226.7 was
adopted in 2000, Section 512(a) was enacted in 1999, and the
Business and Professions Code sections 1700, et seq., were enacted
in 1977. Accordingly, these sections were enacted or adopted after
1942 and, thus, do not apply to Beltran's claims, Judge Phillips
opines.
The Court, therefore, dismisses the claims asserted under
California Labor Code Sections 226, 226.7, and 512(a), as well as
Business and Professions Code Sections 17200, et seq.
Arbitration Agreement
The Court now addresses whether the remaining claims are subject to
arbitration. Mr. Beltran challenges the validity of the electronic
signatures on the arbitration agreements and, alternatively, argues
that the Agreement is unenforceable. Further, Beltran contends
Inter-Con waived its right to arbitrate by litigating the merits of
the claims in court.
1. Validity of Electronic Signatures
The Court addresses first the validity of the electronic
signatures. Beltran does not contest the validity of the signatures
for Named-Plaintiffs Guillermo Beltran, Luis Jimenez, Louis
Dawkins, and Rudy Delao. Beltran does, however, contest the
validity of the electronic signatures for Named-Plaintiffs Frank
Anicoche, Jr., Paganini Louissaint, and Joshua Bolden.
Mr. Beltran specifically challenges the authenticity of the
exhibits attached to the declaration of Caitlin R. Johnson, counsel
for Inter-Con. He relies on Ruiz v. Moss Bros. Auto Grp., Inc., 232
Cal.App.4th 836 (2014) to attack the authenticity of the exhibits.
The Ruiz court held that the declaration accompanying the
electronic signatures failed to explain how the declarant concluded
that plaintiff had signed the document after plaintiff averred he
did not recall electronically signing the document.
Judge Phillips holds that Beltran's arguments are unpersuasive.
Whether a valid electronic signature exists and, thus, whether a
valid arbitration agreement exists, is a question of contract
formation, the Judge points out. Accordingly, federal courts apply
state law in determining whether a valid arbitration agreement
exists.
Judge Phillips also holds that Beltran's challenge to the
sufficiency of Johnson's declaration authenticating the electronic
signature fails. Johnson, who is familiar with Inter-Con's hiring
practices and policies, has personal knowledge of Inter-Con's
secure internet portal, hosted by Taleo and Paycom, where new
applicants apply for positions. The declaration explains that
applicants use their password-protected account to review and sign
all initial hiring documents, including the Agreement, prior to
employment.
Unlike the unsuccessful declarant in Ruiz, Johnson describes in
detail the steps of the initial hiring process, clarifying that the
process could be completed only with signer's private password, and
that the Plaintiffs completed the initial hiring process only by
signing the arbitration agreement. Finally, Beltran does not argue
the Plaintiffs did not sign the agreements and thus Ruiz is
distinguishable. Inter-Con, therefore, properly authenticated the
Plaintiffs' electronic signatures on the Agreement.
2. Class Action Waiver
Mr. Beltran next argues that, even assuming the electronic
signatures are authenticated, the Agreement is unenforceable
because the Plaintiffs had no meaningful opportunity to opt out of
the Agreement.
Judge Phillips finds that Beltran falls short of demonstrating the
Agreement is unenforceable. Under the Federal Arbitration Act, an
arbitration agreement is valid and enforceable unless grounds exist
at law or in equity for revocation. In California, a contract is
unenforceable if it is both procedurally and substantively
unconscionable, Judge Phillips notes, citing Armendariz v. Found.
Health Psychcare Servs., Inc., 24 Cal.4th 83, 114 (2000).
Procedural unconscionability focuses on oppression or surprise due
to unequal bargaining power, and is concerned with overly harsh or
one-sided results.
Even assuming for the purpose of this Motion that Beltran had no
meaningful opportunity to opt out, this would show only procedural
unconscionability, Judge Phillips finds. As Beltran fails to make
substantive unconscionability arguments, and both procedural and
substantive unconscionability need to exist for an
unconscionability defense, the Court finds the Agreement is
enforceable.
3. Arbitration Waiver
Mr. Beltran asserts that Inter-Con waived its right to arbitrate by
removing the action to federal court and by filing motions to
dismiss his claims.
Under federal law, waiver is the intentional relinquishment or
abandonment of a known right. A party seeking to prove that the
right to compel arbitration has been waived must carry the heavy
burden of demonstrating: (1) knowledge of an existing right to
compel arbitration; (2) intentional acts inconsistent with that
existing right; and (3) prejudice to the person opposing
arbitration from such inconsistent acts, Judge Phillips notes,
citing Newirth v. Aegis Senior Cmtys., LLC, 931 F.3d 935, 940 (9th
Cir. 2019).
Inter-Con knows of its right to compel arbitration, satisfying the
first element, Judge Phillips finds. As to the second element,
Inter-Con's acts are wholly consistent with an intent to seek
arbitration. Finally, Judge Phillips finds, as there is no
inconsistent conduct, there is no prejudice. Inter-Con, therefore,
has not waived arbitration.
The Court, therefore, finds the Agreement is enforceable and
requires Beltran to arbitrate his remaining claims not dismissed.
Conclusion
For the reasons stated, the Court denies Mr. Beltran's Motion to
Remand and grants Inter-Con's Motion to Dismiss with prejudice as
to claims asserted under California Labor Code Sections 226, 226.7,
and 512(a), as well as Business and Professions Code Sections
17200, et seq. All remaining claims also are dismissed against
Inter-Con without prejudice and are compelled to arbitration.
A full-text copy of the Court's Order dated Sept. 13, 2021, is
available at https://tinyurl.com/4j9mpxcd from Leagle.com.
JOHN C. HEATH: Doyle Files TCPA Suit in D. New Jersey
-----------------------------------------------------
A class action lawsuit has been filed against JOHN C. HEATH, PC.
The case is styled as Robert Doyle, individually, and all others
similarly situated v. JOHN C. HEATH, PC doing business as:
LEXINGTON LAW FIRM, Case No. 2:21-cv-17255-JMV-LDW (D.N.J., Sept.
17, 2021).
The lawsuit is brought over alleged violation of the Telephone
Consumer Protection Act for Restrictions of Use of Telephone
Equipment.
Lexington Law -- https://www.lexingtonlaw.com/ -- is a credit
repair firm and is one of the most well-known credit repair
companies and has been serving clients since 2004.[BN]
The Plaintiff appears pro se.
JOSEPH'S/CANDLER: Betz Sues Over Failure to Protect PII and PHI
---------------------------------------------------------------
Heather Erica Betz, on behalf of herself and all others similarly
situated v. ST. JOSEPH'S/CANDLER HEALTH SYSTEM, INC., Case No.
9:21-cv-03016-BHH (D.S.C., Sept. 17, 2021), is brought against the
Defendant for disregarding the Plaintiff's and Class Members'
rights as to their Personally Identifiable Information" or "PII"
and "Personal Health Information" or "PHI" by (i) intentionally,
willfully, recklessly, or negligently failing to take reasonable
measures protect the SJ/C IT and data systems from unauthorized
intrusion; (ii) failing to disclose to patients that SJ/C's IT and
data systems were vulnerable to intrusion before patients entrusted
their PII and PHI to Defendant; (iii) failing to take reasonable
and necessary steps to detect cyber criminals roaming freely in
SJ/C's system for six months; and (iv) failing to timely notify
patients of the Data Breach.
According to the complaint, on December 18, 2020, unauthorized
individuals hacked SJ/C's IT network and accessed the private and
confidential medical information of approximately 1,400,000
individuals1 (the "Data Breach"), including names, addresses,
Social Security numbers, dates of birth, driver's license numbers,
billing account information, financial information, health
insurance information, employment information, family member and
emergency contact information, medical record numbers, dates of
service, provider names, and medical and clinical treatment
information. For a full six months after these cyber criminals
first accessed SJ/C's IT system, the hackers were able to move
freely and undetected through the hospital system's IT network It
was not until June 17, 2021, that "SJ/C identified suspicious
activity in its IT network.
Despite repeated, explicit, detailed notices of the risks faced by
hospital systems storing sensitive patient data, Defendant
recklessly stored Class Members' PII and PHI in an unsafe manner.
Despite repeated, explicit, detailed warnings as to the manner in
which hackers were targeting hospitals' IT systems and how to
prevent such attacks, Defendant maintained an IT system vulnerable
to attack from those very same cyber criminals. The Data Breach was
a direct and proximate result of Defendant's failure to implement
adequate, reasonable IT security protocols.
Further, Defendant failed to implement reasonable and necessary
measures to monitor its IT and data systems to detect cyber
criminals' intrusion into its network—despite concrete and
specific instructions from federal agencies and cyber security
experts as to how to detect such an intrusion. The Defendant failed
to notify its patients that their PII and PHI had been compromised
until August 10, 2021, almost two full months after the Data Breach
was discovered. As a result of the Data Breach, the Plaintiff and
the Class suffered injury and ascertainable losses, says the
complaint.
The Plaintiff was notified of Defendant's Data Breach and her
PII/PHI being compromised upon receiving a notice letter dated
August 10, 2021.
SJ/C is a healthcare provider rendering medical services to
patients.[BN]
The Plaintiff is represented by:
Constance Cooper, Esq.
HACH ROSE SCHIRRIPA & CHEVERIE LLP
1505 Washington Ave.
Savannah, GA 31404
Email: ccooper@hrsclaw.com
- and -
Frank R. Schirripa, Esq.
Seth M. Pavsner, Esq.
HACH ROSE SCHIRRIPA & CHEVERIE LLP
112 Madison Avenue, 10th Floor
New York, NY 10016
Phone: (212) 213-8311
Email: fschirripa@hrsclaw.com
spavsner@hrsclaw.com
JUICIFY INC: Shanahan TCPA Suit Moved From Nebraska to Illinois
---------------------------------------------------------------
Magistrate Judge Cheryl R. Zwart of the U.S. District Court for the
District of Nebraska transferred the case, TERRENCE SHANAHAN,
individually, and on behalf of all others similarly situated,
Plaintiff v. JUICIFY, INC., an Illinois corporation, Defendant,
Case No. 8:21CV243 (D. Neb.), to the U.S. District Court for the
Northern District of Illinois.
Juicify has moved to transfer the putative, nationwide class action
to the Northern District of Illinois for the convenience of the
parties and witnesses and in the interests of justice. Shanahan has
not responded to the motion and the deadline for doing so has
passed. The motion is deemed unopposed.
Judge Zwart states that if the Plaintiff's lawsuit could have been
brought, in the first instance, in the Northern District of
Illinois, the Court has discretion to transfer it to that forum for
the convenience of the parties and witnesses. Based on the evidence
of record, Juicify's only business locations are in Chicago,
Illinois, and therefore the case could have been filed in the
Northern District of Illinois.
Although Juicify's motion to transfer is unopposed, Judge Zwart
must nonetheless consider the facts of record and determine whether
the requested transfer will advance the convenience and fairness of
these proceedings. She considers "the convenience of the parties,
the convenience of the witnesses, the interests of justice, and any
other relevant factors when comparing alternative venues." Factors
include the willingness of witnesses to appear, the ability to
subpoena witnesses, the adequacy of deposition testimony, the
accessibility to records and documents, the location where the
conduct complained of occurred, and the applicability of each forum
state's substantive law.
Judge Zwart finds that the Plaintiff, a Nebraska citizen, seeks
recovery under the Telephone Consumer Protection Act ("TCPA"), 47
U.S.C. Section 227 on behalf of himself and everyone in the United
States whose phone number is registered on the "Do Not Call" list
but has nonetheless received a text message promoting the
Defendant's products and/or services. While the Plaintiff's choice
of forum is a significant factor to consider, Shanahan has not
objected to Juicify's motion to transfer, indicating he does not
prefer the Nebraska court over the Northern District of Illinois.
Defendant Juicify, its two business locations, and all of its
employees are located in the Chicago, Illinois area. Juicify does
no business in Nebraska, and it does not ship to Nebraska. The
Plaintiff provided his phone number to Juicify when he obtained a
product at one of Juicify's Chicago stores. Defense witnesses will
no doubt be from Illinois, beyond the subpoena reach of Nebraska.
The Plaintiff is from Nebraska with several direct one-hour flights
available daily from Omaha to Chicago. The putative class members
are from across the United States.
So, even assuming a class is certified and a class member will
provide testimony or attend the trial, flights to Chicago are
available from anywhere in the United States -- with far more
direct flights into Chicago compared to Omaha. Judge Zwart holds
that convenience to the parties and witnesses weighs in favor of
transfer.
The complaint raises claims arising solely under federal law. State
and local law is not implicated, and neither the Nebraska nor the
Illinois forum will be tasked with deciding conflict of law issues.
Moreover, since the putative class is from the entire United
States, as to the plaintiffs, Nebraska has no greater interest in
the outcome than any other state. But as to the Defendant, Illinois
does have an interest in the outcome of litigation against a
business located solely in Chicago. The interests of justice weigh
in favor of transfer.
After considering the totality of the evidence before her, Judge
Zwart finds the case should be transferred to the Northern District
of Illinois. Accordingly, she granted the Defendant's Motion to
Transfer, and transferred the case to the Northern District of
Illinois.
A full-text copy of the Court's Sept. 15, 2021 Memorandum & Order
is available at https://tinyurl.com/3ewmnky7 from Leagle.com.
JUUL LABS: Baldwinsville Sues Over E-Cigarette Campaign to Youth
----------------------------------------------------------------
BALDWINSVILLE CENTRAL SCHOOL DISTRICT, on behalf of itself and all
others similarly situated, Plaintiff v. JUUL LABS, INC. F/K/A PAX
LABS, INC.; JAMES MONSEES; ADAM BOWEN; NICHOLAS PRITZKER; HOYOUNG
HUH; RIAZ VALANI; ALTRIA GROUP, INC.; ALTRIA CLIENT SERVICES LLC;
ALTRIA GROUP DISTRIBUTION COMPANY; and PHILIP MORRIS USA, INC.,
Defendants, Case No. 3:21-cv-07613 (N.D. Cal., September 29, 2021)
is a class action against the Defendants for negligence, gross
negligence, and violations of Public Nuisance Law and the Racketeer
Influenced and Corrupt Organizations Act.
According to the complaint, the Defendants used three tactics to
maintain market dominance in the cigarette industry: (1) product
design to maximize addiction, (2) mass deception, and (3) targeting
of youth. Defendants JUUL Labs and Adam Bowen designed an
e-cigarette device allegedly intended to create and sustain
addiction, but without the stigma associated with cigarettes and
promoted them to vulnerable young population. JUUL Labs and other
Defendants developed and implemented a marketing scheme to mislead
users into believing that JUUL products contained less nicotine
than they actually do and were healthy and safe. The Defendants
enticed newcomers to nicotine with kid-friendly flavors without
ensuring the flavoring additives were safe for inhalation. The
Defendants targeted the youth market by placing vaporized campaigns
on youth-oriented websites and media and using influencers and
affiliates to amplify their message to a teenage audience. The
Defendants have successfully caused more young people to start
using e-cigarettes, creating a youth e-cigarette epidemic and
public health crisis, says the suit.
Baldwinsville Central School District is a unified school district
with its offices located at 29 East Oneida Street in Baldwinsville,
New York.
JUUL Labs, Inc., formerly known as Pax Labs, Inc., is an American
electronic cigarette company, with its principal place of business
in San Francisco, California.
Altria Group, Inc. is a producer of tobacco products, with its
principal place of business in Richmond, Virginia.
Philip Morris USA, Inc. is a wholly-owned subsidiary of Altria
Group, Inc., with its principal place of business in Richmond,
Virginia.
Altria Client Services LLC is a tobacco company, with its principal
place of business in Richmond, Virginia.
Altria Group Distribution Company is a tobacco company, with its
principal place of business in Richmond, Virginia. [BN]
The Plaintiff is represented by:
James Frantz, Esq.
William B. Shinoff, Esq.
FRANTZ LAW GROUP, APLC
402 W. Broadway, Ste. 860
San Diego, CA 92101
Telephone: (619) 233-5945
Facsimile: (619) 525-7672
E-mail: jpf@frantzlawgroup.com
wshinoff@frantzlawgroup.com
JUUL LABS: Causes Youth E-Cigarette Crisis, Tuscumbia City Says
---------------------------------------------------------------
TUSCUMBIA CITY SCHOOL DISTRICT, STATE OF ALABAMA, on behalf of
itself and all others similarly situated, Plaintiff v. JUUL LABS,
INC. F/K/A PAX LABS, INC.; JAMES MONSEES; ADAM BOWEN; NICHOLAS
PRITZKER; HOYOUNG HUH; RIAZ VALANI; ALTRIA GROUP, INC.; ALTRIA
CLIENT SERVICES LLC; ALTRIA GROUP DISTRIBUTION COMPANY; and PHILIP
MORRIS USA, INC., Defendants, Case No. 3:21-cv-07574 (N.D. Cal.,
September 28, 2021) is a class action against the Defendants for
negligence, gross negligence, and violations of Alabama Public
Nuisance Law and the Racketeer Influenced and Corrupt Organizations
Act.
According to the complaint, the Defendants used three tactics to
maintain market dominance in the cigarette industry: (1) product
design to maximize addiction, (2) mass deception, and (3) targeting
of youth. Defendants JUUL Labs and Adam Bowen designed an
e-cigarette device allegedly intended to create and sustain
addiction, but without the stigma associated with cigarettes and
promoted them to vulnerable young population. JUUL Labs and other
Defendants developed and implemented a marketing scheme to mislead
users into believing that JUUL products contained less nicotine
than they actually do and were healthy and safe. The Defendants
enticed newcomers to nicotine with kid-friendly flavors without
ensuring the flavoring additives were safe for inhalation. The
Defendants targeted the youth market by placing vaporized campaigns
on youth-oriented websites and media and using influencers and
affiliates to amplify their message to a teenage audience. The
Defendants have successfully caused more young people to start
using e-cigarettes, creating a youth e-cigarette epidemic and
public health crisis, the suit contends.
Tuscumbia City School District is a school district with its
offices located at 303 North Commons Street east, Tuscumbia,
Alabama.
JUUL Labs, Inc., formerly known as Pax Labs, Inc., is an American
electronic cigarette company, with its principal place of business
in San Francisco, California.
Altria Group, Inc. is a producer of tobacco products, with its
principal place of business in Richmond, Virginia.
Philip Morris USA, Inc. is a wholly-owned subsidiary of Altria
Group, Inc., with its principal place of business in Richmond,
Virginia.
Altria Client Services LLC is a tobacco company, with its principal
place of business in Richmond, Virginia.
Altria Group Distribution Company is a tobacco company, with its
principal place of business in Richmond, Virginia. [BN]
The Plaintiff is represented by:
Andy D. Birchfield, Jr., Esq.
Joseph G. VanZandt, Esq.
Davis S. Vaughn, Esq.
BEASLEY ALLEN CROW METHVIN PORTIS & MILES, LLC
234 Commerce Street
Montgomery, AL 36103
Telephone: (334) 269-2343
E-mail: Andy.Birchfield@BeasleyAllen.com
Joseph.VanZandt@BeasleyAllen.com
Davis.Vaughn@BeasleyAllen.com
JUUL LABS: E-Cigarette Ads Target Youth, Montgomery Suit Claims
---------------------------------------------------------------
MONTGOMERY PUBLIC SCHOOLS, MONTGOMERY COUNTY, STATE OF ALABAMA, on
behalf of itself and all others similarly situated, Plaintiff v.
JUUL LABS, INC. F/K/A PAX LABS, INC.; JAMES MONSEES; ADAM BOWEN;
NICHOLAS PRITZKER; HOYOUNG HUH; RIAZ VALANI; ALTRIA GROUP, INC.;
ALTRIA CLIENT SERVICES LLC; ALTRIA GROUP DISTRIBUTION COMPANY; and
PHILIP MORRIS USA, INC., Defendants, Case No. 3:21-cv-07547 (N.D.
Cal., September 28, 2021) is a class action against the Defendants
for negligence, gross negligence, and violations of Alabama Public
Nuisance Law and the Racketeer Influenced and Corrupt Organizations
Act.
According to the complaint, the Defendants used three tactics to
maintain market dominance in the cigarette industry: (1) product
design to maximize addiction, (2) mass deception, and (3) targeting
of youth. Defendants JUUL Labs and Adam Bowen designed an
e-cigarette device allegedly intended to create and sustain
addiction, but without the stigma associated with cigarettes and
promoted them to vulnerable young population. JUUL Labs and other
Defendants developed and implemented a marketing scheme to mislead
users into believing that JUUL products contained less nicotine
than they actually do and were healthy and safe. The Defendants
enticed newcomers to nicotine with kid-friendly flavors without
ensuring the flavoring additives were safe for inhalation. The
Defendants targeted the youth market by placing vaporized campaigns
on youth-oriented websites and media and using influencers and
affiliates to amplify their message to a teenage audience. The
Defendants have successfully caused more young people to start
using e-cigarettes, creating a youth e-cigarette epidemic and
public health crisis, added the suit.
Montgomery Public Schools is a school district with its offices
located at 307 S. Decatur Street, Montgomery, Alabama.
JUUL Labs, Inc., formerly known as Pax Labs, Inc., is an American
electronic cigarette company, with its principal place of business
in San Francisco, California.
Altria Group, Inc. is a producer of tobacco products, with its
principal place of business in Richmond, Virginia.
Philip Morris USA, Inc. is a wholly-owned subsidiary of Altria
Group, Inc., with its principal place of business in Richmond,
Virginia.
Altria Client Services LLC is a tobacco company, with its principal
place of business in Richmond, Virginia.
Altria Group Distribution Company is a tobacco company, with its
principal place of business in Richmond, Virginia. [BN]
The Plaintiff is represented by:
Andy D. Birchfield, Jr., Esq.
Joseph G. VanZandt, Esq.
Davis S. Vaughn, Esq.
BEASLEY ALLEN CROW METHVIN PORTIS & MILES, LLC
234 Commerce Street
Montgomery, AL 36103
Telephone: (334) 269-2343
E-mail: Andy.Birchfield@BeasleyAllen.com
Joseph.VanZandt@BeasleyAllen.com
Davis.Vaughn@BeasleyAllen.com
JUUL LABS: E-Cigarette Ads Target Youth, Williams Bay Suit Claims
-----------------------------------------------------------------
WILLIAMS BAY SCHOOL DISTRICT, on behalf of itself and all others
similarly situated, Plaintiff v. JUUL LABS, INC. F/K/A PAX LABS,
INC.; JAMES MONSEES; ADAM BOWEN; NICHOLAS PRITZKER; HOYOUNG HUH;
RIAZ VALANI; ALTRIA GROUP, INC.; ALTRIA CLIENT SERVICES LLC; ALTRIA
GROUP DISTRIBUTION COMPANY; and PHILIP MORRIS USA, INC.,
Defendants, Case No. 3:21-cv-07512 (N.D. Cal., September 27, 2021)
is a class action against the Defendants for negligence, gross
negligence, and violations of Public Nuisance Law and the Racketeer
Influenced and Corrupt Organizations Act.
According to the complaint, the Defendants used three tactics to
maintain market dominance in the cigarette industry: (1) product
design to maximize addiction, (2) mass deception, and (3) targeting
of youth. Defendants JUUL Labs and Adam Bowen designed an
e-cigarette device allegedly intended to create and sustain
addiction, but without the stigma associated with cigarettes and
promoted them to vulnerable young population. JUUL Labs and other
Defendants developed and implemented a marketing scheme to mislead
users into believing that JUUL products contained less nicotine
than they actually do and were healthy and safe. The Defendants
enticed newcomers to nicotine with kid-friendly flavors without
ensuring the flavoring additives were safe for inhalation. The
Defendants targeted the youth market by placing vaporized campaigns
on youth-oriented websites and media and using influencers and
affiliates to amplify their message to a teenage audience. The
Defendants have successfully caused more young people to start
using e-cigarettes, creating a youth e-cigarette epidemic and
public health crisis, the suit says.
Williams Bay School District is a unified school district with its
offices located at 250 Theatre Road in Williams Bay, Wisconsin.
JUUL Labs, Inc., formerly known as Pax Labs, Inc., is an American
electronic cigarette company, with its principal place of business
in San Francisco, California.
Altria Group, Inc. is a producer of tobacco products, with its
principal place of business in Richmond, Virginia.
Philip Morris USA, Inc. is a wholly-owned subsidiary of Altria
Group, Inc., with its principal place of business in Richmond,
Virginia.
Altria Client Services LLC is a tobacco company, with its principal
place of business in Richmond, Virginia.
Altria Group Distribution Company is a tobacco company, with its
principal place of business in Richmond, Virginia. [BN]
The Plaintiff is represented by:
James Frantz, Esq.
William B. Shinoff, Esq.
FRANTZ LAW GROUP, APLC
402 W. Broadway, Ste. 860
San Diego, CA 92101
Telephone: (619) 233-5945
Facsimile: (619) 525-7672
E-mail: jpf@frantzlawgroup.com
wshinoff@frantzlawgroup.com
JUUL LABS: Elizabethton Sues Over E-Cigarette Campaign to Youth
---------------------------------------------------------------
ELIZABETHTON CITY SCHOOLS, on behalf of itself and all others
similarly situated, Plaintiff v. JUUL LABS, INC. F/K/A PAX LABS,
INC.; JAMES MONSEES; ADAM BOWEN; NICHOLAS PRITZKER; HOYOUNG HUH;
RIAZ VALANI; ALTRIA GROUP, INC.; ALTRIA CLIENT SERVICES LLC; ALTRIA
GROUP DISTRIBUTION COMPANY; and PHILIP MORRIS USA, INC.,
Defendants, Case No. 3:21-cv-07572 (N.D. Cal., September 28, 2021)
is a class action against the Defendants for negligence, gross
negligence, and violations of Public Nuisance Law and the Racketeer
Influenced and Corrupt Organizations Act.
According to the complaint, the Defendants used three tactics to
maintain market dominance in the cigarette industry: (1) product
design to maximize addiction, (2) mass deception, and (3) targeting
of youth. Defendants JUUL Labs and Adam Bowen designed an
e-cigarette device allegedly intended to create and sustain
addiction, but without the stigma associated with cigarettes and
promoted them to vulnerable young population. JUUL Labs and other
Defendants developed and implemented a marketing scheme to mislead
users into believing that JUUL products contained less nicotine
than they actually do and were healthy and safe. The Defendants
enticed newcomers to nicotine with kid-friendly flavors without
ensuring the flavoring additives were safe for inhalation. The
Defendants targeted the youth market by placing vaporized campaigns
on youth-oriented websites and media and using influencers and
affiliates to amplify their message to a teenage audience. The
Defendants have successfully caused more young people to start
using e-cigarettes, creating a youth e-cigarette epidemic and
public health crisis, the suit added.
Elizabethton City Schools is a unified school district with its
offices located at 804 South Watauga Avenue in Elizabethton,
Tennessee.
JUUL Labs, Inc., formerly known as Pax Labs, Inc., is an American
electronic cigarette company, with its principal place of business
in San Francisco, California.
Altria Group, Inc. is a producer of tobacco products, with its
principal place of business in Richmond, Virginia.
Philip Morris USA, Inc. is a wholly-owned subsidiary of Altria
Group, Inc., with its principal place of business in Richmond,
Virginia.
Altria Client Services LLC is a tobacco company, with its principal
place of business in Richmond, Virginia.
Altria Group Distribution Company is a tobacco company, with its
principal place of business in Richmond, Virginia. [BN]
The Plaintiff is represented by:
James Frantz, Esq.
William B. Shinoff, Esq.
FRANTZ LAW GROUP, APLC
402 W. Broadway, Ste. 860
San Diego, CA 92101
Telephone: (619) 233-5945
Facsimile: (619) 525-7672
E-mail: jpf@frantzlawgroup.com
wshinoff@frantzlawgroup.com
JUUL LABS: Faces Lakeview School Suit Over Youth E-Cigarette Crisis
-------------------------------------------------------------------
LAKEVIEW SCHOOL DISTRICT, on behalf of itself and all others
similarly situated, Plaintiff v. JUUL LABS, INC. F/K/A PAX LABS,
INC.; JAMES MONSEES; ADAM BOWEN; NICHOLAS PRITZKER; HOYOUNG HUH;
RIAZ VALANI; ALTRIA GROUP, INC.; ALTRIA CLIENT SERVICES LLC; ALTRIA
GROUP DISTRIBUTION COMPANY; and PHILIP MORRIS USA, INC.,
Defendants, Case No. 3:21-cv-07563 (N.D. Cal., September 28, 2021)
is a class action against the Defendants for negligence, gross
negligence, and violations of Public Nuisance Law and the Racketeer
Influenced and Corrupt Organizations Act.
According to the complaint, the Defendants used three tactics to
maintain market dominance in the cigarette industry: (1) product
design to maximize addiction, (2) mass deception, and (3) targeting
of youth. Defendants JUUL Labs and Adam Bowen designed an
e-cigarette device allegedly intended to create and sustain
addiction, but without the stigma associated with cigarettes and
promoted them to vulnerable young population. JUUL Labs and other
Defendants developed and implemented a marketing scheme to mislead
users into believing that JUUL products contained less nicotine
than they actually do and were healthy and safe. The Defendants
enticed newcomers to nicotine with kid-friendly flavors without
ensuring the flavoring additives were safe for inhalation. The
Defendants targeted the youth market by placing vaporized campaigns
on youth-oriented websites and media and using influencers and
affiliates to amplify their message to a teenage audience. The
Defendants have successfully caused more young people to start
using e-cigarettes, creating a youth e-cigarette epidemic and
public health crisis, the suit asserts.
Lakeview School District is a unified school district with its
offices located at 15 Arbor Street in Battle Creek, Michigan.
JUUL Labs, Inc., formerly known as Pax Labs, Inc., is an American
electronic cigarette company, with its principal place of business
in San Francisco, California.
Altria Group, Inc. is a producer of tobacco products, with its
principal place of business in Richmond, Virginia.
Philip Morris USA, Inc. is a wholly-owned subsidiary of Altria
Group, Inc., with its principal place of business in Richmond,
Virginia.
Altria Client Services LLC is a tobacco company, with its principal
place of business in Richmond, Virginia.
Altria Group Distribution Company is a tobacco company, with its
principal place of business in Richmond, Virginia. [BN]
The Plaintiff is represented by:
James Frantz, Esq.
William B. Shinoff, Esq.
FRANTZ LAW GROUP, APLC
402 W. Broadway, Ste. 860
San Diego, CA 92101
Telephone: (619) 233-5945
Facsimile: (619) 525-7672
E-mail: jpf@frantzlawgroup.com
wshinoff@frantzlawgroup.com
JUUL LABS: Faces Plain Local Suit Over Youth E-Cigarette Crisis
---------------------------------------------------------------
PLAIN LOCAL SCHOOLS, on behalf of itself and all others similarly
situated, Plaintiff v. JUUL LABS, INC. F/K/A PAX LABS, INC.; JAMES
MONSEES; ADAM BOWEN; NICHOLAS PRITZKER; HOYOUNG HUH; RIAZ VALANI;
ALTRIA GROUP, INC.; ALTRIA CLIENT SERVICES LLC; ALTRIA GROUP
DISTRIBUTION COMPANY; and PHILIP MORRIS USA, INC., Defendants, Case
No. 3:21-cv-07616 (N.D. Cal., September 29, 2021) is a class action
against the Defendants for negligence, gross negligence, and
violations of Public Nuisance Law and the Racketeer Influenced and
Corrupt Organizations Act.
According to the complaint, the Defendants used three tactics to
maintain market dominance in the cigarette industry: (1) product
design to maximize addiction, (2) mass deception, and (3) targeting
of youth. Defendants JUUL Labs and Adam Bowen designed an
e-cigarette device allegedly intended to create and sustain
addiction, but without the stigma associated with cigarettes and
promoted them to vulnerable young population. JUUL Labs and other
Defendants developed and implemented a marketing scheme to mislead
users into believing that JUUL products contained less nicotine
than they actually do and were healthy and safe. The Defendants
enticed newcomers to nicotine with kid-friendly flavors without
ensuring the flavoring additives were safe for inhalation. The
Defendants targeted the youth market by placing vaporized campaigns
on youth-oriented websites and media and using influencers and
affiliates to amplify their message to a teenage audience. The
Defendants have successfully caused more young people to start
using e-cigarettes, creating a youth e-cigarette epidemic and
public health crisis, the suit says.
Plain Local Schools is a unified school district with its offices
located at 901 44th Street NW in Canton, Ohio.
JUUL Labs, Inc., formerly known as Pax Labs, Inc., is an American
electronic cigarette company, with its principal place of business
in San Francisco, California.
Altria Group, Inc. is a producer of tobacco products, with its
principal place of business in Richmond, Virginia.
Philip Morris USA, Inc. is a wholly-owned subsidiary of Altria
Group, Inc., with its principal place of business in Richmond,
Virginia.
Altria Client Services LLC is a tobacco company, with its principal
place of business in Richmond, Virginia.
Altria Group Distribution Company is a tobacco company, with its
principal place of business in Richmond, Virginia. [BN]
The Plaintiff is represented by:
James Frantz, Esq.
William B. Shinoff, Esq.
FRANTZ LAW GROUP, APLC
402 W. Broadway, Ste. 860
San Diego, CA 92101
Telephone: (619) 233-5945
Facsimile: (619) 525-7672
E-mail: jpf@frantzlawgroup.com
wshinoff@frantzlawgroup.com
JUUL LABS: Faces Williamston Suit Over Youth Health Crisis in Mich.
-------------------------------------------------------------------
WILLIAMSTON COMMUNITY SCHOOLS, on behalf of itself and all others
similarly situated, Plaintiff v. JUUL LABS, INC. F/K/A PAX LABS,
INC.; JAMES MONSEES; ADAM BOWEN; NICHOLAS PRITZKER; HOYOUNG HUH;
RIAZ VALANI; ALTRIA GROUP, INC.; ALTRIA CLIENT SERVICES LLC; ALTRIA
GROUP DISTRIBUTION COMPANY; and PHILIP MORRIS USA, INC.,
Defendants, Case No. 3:21-cv-07575 (N.D. Cal., September 28, 2021)
is a class action against the Defendants for negligence, gross
negligence, and violations of Public Nuisance Law and the Racketeer
Influenced and Corrupt Organizations Act.
According to the complaint, the Defendants used three tactics to
maintain market dominance in the cigarette industry: (1) product
design to maximize addiction, (2) mass deception, and (3) targeting
of youth. Defendants JUUL Labs and Adam Bowen designed an
e-cigarette device allegedly intended to create and sustain
addiction, but without the stigma associated with cigarettes and
promoted them to vulnerable young population. JUUL Labs and other
Defendants developed and implemented a marketing scheme to mislead
users into believing that JUUL products contained less nicotine
than they actually do and were healthy and safe. The Defendants
enticed newcomers to nicotine with kid-friendly flavors without
ensuring the flavoring additives were safe for inhalation. The
Defendants targeted the youth market by placing vaporized campaigns
on youth-oriented websites and media and using influencers and
affiliates to amplify their message to a teenage audience. The
Defendants have successfully caused more young people to start
using e-cigarettes, creating a youth e-cigarette epidemic and
public health crisis, says the suit.
Williamston Community Schools is a unified school district with its
offices located at 418 Highland Street in Williamston, Michigan.
JUUL Labs, Inc., formerly known as Pax Labs, Inc., is an American
electronic cigarette company, with its principal place of business
in San Francisco, California.
Altria Group, Inc. is a producer of tobacco products, with its
principal place of business in Richmond, Virginia.
Philip Morris USA, Inc. is a wholly-owned subsidiary of Altria
Group, Inc., with its principal place of business in Richmond,
Virginia.
Altria Client Services LLC is a tobacco company, with its principal
place of business in Richmond, Virginia.
Altria Group Distribution Company is a tobacco company, with its
principal place of business in Richmond, Virginia. [BN]
The Plaintiff is represented by:
James Frantz, Esq.
William B. Shinoff, Esq.
FRANTZ LAW GROUP, APLC
402 W. Broadway, Ste. 860
San Diego, CA 92101
Telephone: (619) 233-5945
Facsimile: (619) 525-7672
E-mail: jpf@frantzlawgroup.com
wshinoff@frantzlawgroup.com
JUUL LABS: Gratiot-Isabella Sues Over Youth's E-Cigarette Crisis
----------------------------------------------------------------
GRATIOT-ISABELLA REGIONAL EDUCATION SERVICE DISTRICT, on behalf of
itself and all others similarly situated, Plaintiff v. JUUL LABS,
INC. F/K/A PAX LABS, INC.; JAMES MONSEES; ADAM BOWEN; NICHOLAS
PRITZKER; HOYOUNG HUH; RIAZ VALANI; ALTRIA GROUP, INC.; ALTRIA
CLIENT SERVICES LLC; ALTRIA GROUP DISTRIBUTION COMPANY; and PHILIP
MORRIS USA, INC., Defendants, Case No. 3:21-cv-07573 (N.D. Cal.,
September 28, 2021) is a class action against the Defendants for
negligence, gross negligence, and violations of Public Nuisance Law
and the Racketeer Influenced and Corrupt Organizations Act.
According to the complaint, the Defendants used three tactics to
maintain market dominance in the cigarette industry: (1) product
design to maximize addiction, (2) mass deception, and (3) targeting
of youth. Defendants JUUL Labs and Adam Bowen designed an
e-cigarette device allegedly intended to create and sustain
addiction, but without the stigma associated with cigarettes and
promoted them to vulnerable young population. JUUL Labs and other
Defendants developed and implemented a marketing scheme to mislead
users into believing that JUUL products contained less nicotine
than they actually do and were healthy and safe. The Defendants
enticed newcomers to nicotine with kid-friendly flavors without
ensuring the flavoring additives were safe for inhalation. The
Defendants targeted the youth market by placing vaporized campaigns
on youth-oriented websites and media and using influencers and
affiliates to amplify their message to a teenage audience. The
Defendants have successfully caused more young people to start
using e-cigarettes, creating a youth e-cigarette epidemic and
public health crisis, added the suit.
Gratiot-Isabella Regional Education Service District is a unified
school district with its offices located at 1131 East Center Street
P.O. Box 310 Ithaca, Michigan.
JUUL Labs, Inc., formerly known as Pax Labs, Inc., is an American
electronic cigarette company, with its principal place of business
in San Francisco, California.
Altria Group, Inc. is a producer of tobacco products, with its
principal place of business in Richmond, Virginia.
Philip Morris USA, Inc. is a wholly-owned subsidiary of Altria
Group, Inc., with its principal place of business in Richmond,
Virginia.
Altria Client Services LLC is a tobacco company, with its principal
place of business in Richmond, Virginia.
Altria Group Distribution Company is a tobacco company, with its
principal place of business in Richmond, Virginia. [BN]
The Plaintiff is represented by:
James Frantz, Esq.
William B. Shinoff, Esq.
FRANTZ LAW GROUP, APLC
402 W. Broadway, Ste. 860
San Diego, CA 92101
Telephone: (619) 233-5945
Facsimile: (619) 525-7672
E-mail: jpf@frantzlawgroup.com
wshinoff@frantzlawgroup.com
JUUL LABS: Kenosha School Sues Over E-Cigarette Campaign to Youth
-----------------------------------------------------------------
KENOSHA UNIFIED SCHOOL DISTRICT, on behalf of itself and all others
similarly situated, Plaintiff v. JUUL LABS, INC. F/K/A PAX LABS,
INC.; JAMES MONSEES; ADAM BOWEN; NICHOLAS PRITZKER; HOYOUNG HUH;
RIAZ VALANI; ALTRIA GROUP, INC.; ALTRIA CLIENT SERVICES LLC; ALTRIA
GROUP DISTRIBUTION COMPANY; and PHILIP MORRIS USA, INC.,
Defendants, Case No. 3:21-cv-07509 (N.D. Cal., September 27, 2021)
is a class action against the Defendants for negligence, gross
negligence, and violations of Public Nuisance Law and the Racketeer
Influenced and Corrupt Organizations Act.
According to the complaint, the Defendants used three tactics to
maintain market dominance in the cigarette industry: (1) product
design to maximize addiction, (2) mass deception, and (3) targeting
of youth. Defendants JUUL Labs and Adam Bowen designed an
e-cigarette device allegedly intended to create and sustain
addiction, but without the stigma associated with cigarettes and
promoted them to vulnerable young population. JUUL Labs and other
Defendants developed and implemented a marketing scheme to mislead
users into believing that JUUL products contained less nicotine
than they actually do and were healthy and safe. The Defendants
enticed newcomers to nicotine with kid-friendly flavors without
ensuring the flavoring additives were safe for inhalation. The
Defendants targeted the youth market by placing vaporized campaigns
on youth-oriented websites and media and using influencers and
affiliates to amplify their message to a teenage audience. The
Defendants have successfully caused more young people to start
using e-cigarettes, creating a youth e-cigarette epidemic and
public health crisis, says the suit.
Kenosha Unified School District is a unified school district with
its offices located at 3600 52nd Street in Kenosha, Wisconsin.
JUUL Labs, Inc., formerly known as Pax Labs, Inc., is an American
electronic cigarette company, with its principal place of business
in San Francisco, California.
Altria Group, Inc. is a producer of tobacco products, with its
principal place of business in Richmond, Virginia.
Philip Morris USA, Inc. is a wholly-owned subsidiary of Altria
Group, Inc., with its principal place of business in Richmond,
Virginia.
Altria Client Services LLC is a tobacco company, with its principal
place of business in Richmond, Virginia.
Altria Group Distribution Company is a tobacco company, with its
principal place of business in Richmond, Virginia. [BN]
The Plaintiff is represented by:
James Frantz, Esq.
William B. Shinoff, Esq.
FRANTZ LAW GROUP, APLC
402 W. Broadway, Ste. 860
San Diego, CA 92101
Telephone: (619) 233-5945
Facsimile: (619) 525-7672
E-mail: jpf@frantzlawgroup.com
wshinoff@frantzlawgroup.com
JUUL LABS: Meridian Sues Over Deceptive E-Cigarette Ads to Youth
----------------------------------------------------------------
MERIDIAN PUBLIC SCHOOLS, on behalf of itself and all others
similarly situated, Plaintiff v. JUUL LABS, INC. F/K/A PAX LABS,
INC.; JAMES MONSEES; ADAM BOWEN; NICHOLAS PRITZKER; HOYOUNG HUH;
RIAZ VALANI; ALTRIA GROUP, INC.; ALTRIA CLIENT SERVICES LLC; ALTRIA
GROUP DISTRIBUTION COMPANY; and PHILIP MORRIS USA, INC.,
Defendants, Case No. 3:21-cv-07513 (N.D. Cal., September 27, 2021)
is a class action against the Defendants for negligence, gross
negligence, and violations of Public Nuisance Law and the Racketeer
Influenced and Corrupt Organizations Act.
According to the complaint, the Defendants used three tactics to
maintain market dominance in the cigarette industry: (1) product
design to maximize addiction, (2) mass deception, and (3) targeting
of youth. Defendants JUUL Labs and Adam Bowen designed an
e-cigarette device allegedly intended to create and sustain
addiction, but without the stigma associated with cigarettes and
promoted them to vulnerable young population. JUUL Labs and other
Defendants developed and implemented a marketing scheme to mislead
users into believing that JUUL products contained less nicotine
than they actually do and were healthy and safe. The Defendants
enticed newcomers to nicotine with kid-friendly flavors without
ensuring the flavoring additives were safe for inhalation. The
Defendants targeted the youth market by placing vaporized campaigns
on youth-oriented websites and media and using influencers and
affiliates to amplify their message to a teenage audience. The
Defendants have successfully caused more young people to start
using e-cigarettes, creating a youth e-cigarette epidemic and
public health crisis, says the suit.
Meridian Public Schools is a unified school district with its
offices located at 3361 North M 30 in Sanford, Michigan.
JUUL Labs, Inc., formerly known as Pax Labs, Inc., is an American
electronic cigarette company, with its principal place of business
in San Francisco, California.
Altria Group, Inc. is a producer of tobacco products, with its
principal place of business in Richmond, Virginia.
Philip Morris USA, Inc. is a wholly-owned subsidiary of Altria
Group, Inc., with its principal place of business in Richmond,
Virginia.
Altria Client Services LLC is a tobacco company, with its principal
place of business in Richmond, Virginia.
Altria Group Distribution Company is a tobacco company, with its
principal place of business in Richmond, Virginia. [BN]
The Plaintiff is represented by:
James Frantz, Esq.
William B. Shinoff, Esq.
FRANTZ LAW GROUP, APLC
402 W. Broadway, Ste. 860
San Diego, CA 92101
Telephone: (619) 233-5945
Facsimile: (619) 525-7672
E-mail: jpf@frantzlawgroup.com
wshinoff@frantzlawgroup.com
JUUL LABS: Muscle Shoals City Sues Over Youth Health Crisis in Ala.
-------------------------------------------------------------------
MUSCLE SHOALS CITY SCHOOLS, STATE OF ALABAMA, on behalf of itself
and all others similarly situated, Plaintiff v. JUUL LABS, INC.
F/K/A PAX LABS, INC.; JAMES MONSEES; ADAM BOWEN; NICHOLAS PRITZKER;
HOYOUNG HUH; RIAZ VALANI; ALTRIA GROUP, INC.; ALTRIA CLIENT
SERVICES LLC; ALTRIA GROUP DISTRIBUTION COMPANY; and PHILIP MORRIS
USA, INC., Defendants, Case No. 3:21-cv-07549 (N.D. Cal., September
28, 2021) is a class action against the Defendants for negligence,
gross negligence, and violations of Alabama Public Nuisance Law and
the Racketeer Influenced and Corrupt Organizations Act.
According to the complaint, the Defendants used three tactics to
maintain market dominance in the cigarette industry: (1) product
design to maximize addiction, (2) mass deception, and (3) targeting
of youth. Defendants JUUL Labs and Adam Bowen designed an
e-cigarette device allegedly intended to create and sustain
addiction, but without the stigma associated with cigarettes and
promoted them to vulnerable young population. JUUL Labs and other
Defendants developed and implemented a marketing scheme to mislead
users into believing that JUUL products contained less nicotine
than they actually do and were healthy and safe. The Defendants
enticed newcomers to nicotine with kid-friendly flavors without
ensuring the flavoring additives were safe for inhalation. The
Defendants targeted the youth market by placing vaporized campaigns
on youth-oriented websites and media and using influencers and
affiliates to amplify their message to a teenage audience. The
Defendants have successfully caused more young people to start
using e-cigarettes, creating a youth e-cigarette epidemic and
public health crisis, says the suit.
Muscle Shoals City Schools is a school district with its offices
located at 3200 S. Wilson Dam Rd., Muscle Shoals, Alabama.
JUUL Labs, Inc., formerly known as Pax Labs, Inc., is an American
electronic cigarette company, with its principal place of business
in San Francisco, California.
Altria Group, Inc. is a producer of tobacco products, with its
principal place of business in Richmond, Virginia.
Philip Morris USA, Inc. is a wholly-owned subsidiary of Altria
Group, Inc., with its principal place of business in Richmond,
Virginia.
Altria Client Services LLC is a tobacco company, with its principal
place of business in Richmond, Virginia.
Altria Group Distribution Company is a tobacco company, with its
principal place of business in Richmond, Virginia. [BN]
The Plaintiff is represented by:
Andy D. Birchfield, Jr., Esq.
Joseph G. VanZandt, Esq.
Davis S. Vaughn, Esq.
BEASLEY ALLEN CROW METHVIN PORTIS & MILES, LLC
234 Commerce Street
Montgomery, AL 36103
Telephone: (334) 269-2343
E-mail: Andy.Birchfield@BeasleyAllen.com
Joseph.VanZandt@BeasleyAllen.com
Davis.Vaughn@BeasleyAllen.com
JUUL LABS: Obion County Sues Over Youth's E-Cigarette Addiction
---------------------------------------------------------------
OBION COUNTY SCHOOLS, on behalf of itself and all others similarly
situated, Plaintiff v. JUUL LABS, INC. F/K/A PAX LABS, INC.; JAMES
MONSEES; ADAM BOWEN; NICHOLAS PRITZKER; HOYOUNG HUH; RIAZ VALANI;
ALTRIA GROUP, INC.; ALTRIA CLIENT SERVICES LLC; ALTRIA GROUP
DISTRIBUTION COMPANY; and PHILIP MORRIS USA, INC., Defendants, Case
No. 3:21-cv-07618 (N.D. Cal., September 29, 2021) is a class action
against the Defendants for negligence, gross negligence, and
violations of Public Nuisance Law and the Racketeer Influenced and
Corrupt Organizations Act.
According to the complaint, the Defendants used three tactics to
maintain market dominance in the cigarette industry: (1) product
design to maximize addiction, (2) mass deception, and (3) targeting
of youth. Defendants JUUL Labs and Adam Bowen designed an
e-cigarette device allegedly intended to create and sustain
addiction, but without the stigma associated with cigarettes and
promoted them to vulnerable young population. JUUL Labs and other
Defendants developed and implemented a marketing scheme to mislead
users into believing that JUUL products contained less nicotine
than they actually do and were healthy and safe. The Defendants
enticed newcomers to nicotine with kid-friendly flavors without
ensuring the flavoring additives were safe for inhalation. The
Defendants targeted the youth market by placing vaporized campaigns
on youth-oriented websites and media and using influencers and
affiliates to amplify their message to a teenage audience. The
Defendants have successfully caused more young people to start
using e-cigarettes, creating a youth e-cigarette epidemic and
public health crisis, the suit says.
Obion County Schools is a unified school district with its offices
located at 1700 North 5th Street in Union City, Tennessee.
JUUL Labs, Inc., formerly known as Pax Labs, Inc., is an American
electronic cigarette company, with its principal place of business
in San Francisco, California.
Altria Group, Inc. is a producer of tobacco products, with its
principal place of business in Richmond, Virginia.
Philip Morris USA, Inc. is a wholly-owned subsidiary of Altria
Group, Inc., with its principal place of business in Richmond,
Virginia.
Altria Client Services LLC is a tobacco company, with its principal
place of business in Richmond, Virginia.
Altria Group Distribution Company is a tobacco company, with its
principal place of business in Richmond, Virginia. [BN]
The Plaintiff is represented by:
James Frantz, Esq.
William B. Shinoff, Esq.
FRANTZ LAW GROUP, APLC
402 W. Broadway, Ste. 860
San Diego, CA 92101
Telephone: (619) 233-5945
Facsimile: (619) 525-7672
E-mail: jpf@frantzlawgroup.com
wshinoff@frantzlawgroup.com
JUUL LABS: Sanborn Sues Over Deceptive E-Cigarette Ads to Youth
---------------------------------------------------------------
SANBORN REGIONAL SCHOOL DISTRICT, on behalf of itself and all
others similarly situated, Plaintiff v. JUUL LABS, INC. F/K/A PAX
LABS, INC.; JAMES MONSEES; ADAM BOWEN; NICHOLAS PRITZKER; HOYOUNG
HUH; RIAZ VALANI; ALTRIA GROUP, INC.; ALTRIA CLIENT SERVICES LLC;
ALTRIA GROUP DISTRIBUTION COMPANY; and PHILIP MORRIS USA, INC.,
Defendants, Case No. 3:21-cv-07577 (N.D. Cal., September 28, 2021)
is a class action against the Defendants for negligence, gross
negligence, and violations of Public Nuisance Law and the Racketeer
Influenced and Corrupt Organizations Act.
According to the complaint, the Defendants used three tactics to
maintain market dominance in the cigarette industry: (1) product
design to maximize addiction, (2) mass deception, and (3) targeting
of youth. Defendants JUUL Labs and Adam Bowen designed an
e-cigarette device allegedly intended to create and sustain
addiction, but without the stigma associated with cigarettes and
promoted them to vulnerable young population. JUUL Labs and other
Defendants developed and implemented a marketing scheme to mislead
users into believing that JUUL products contained less nicotine
than they actually do and were healthy and safe. The Defendants
enticed newcomers to nicotine with kid-friendly flavors without
ensuring the flavoring additives were safe for inhalation. The
Defendants targeted the youth market by placing vaporized campaigns
on youth-oriented websites and media and using influencers and
affiliates to amplify their message to a teenage audience. The
Defendants have successfully caused more young people to start
using e-cigarettes, creating a youth e-cigarette epidemic and
public health crisis, alleges the suit.
Sanborn Regional School District is a unified school district with
its offices located at 51 Church Street P.O. Box 429 in Kingston,
New Hampshire.
JUUL Labs, Inc., formerly known as Pax Labs, Inc., is an American
electronic cigarette company, with its principal place of business
in San Francisco, California.
Altria Group, Inc. is a producer of tobacco products, with its
principal place of business in Richmond, Virginia.
Philip Morris USA, Inc. is a wholly-owned subsidiary of Altria
Group, Inc., with its principal place of business in Richmond,
Virginia.
Altria Client Services LLC is a tobacco company, with its principal
place of business in Richmond, Virginia.
Altria Group Distribution Company is a tobacco company, with its
principal place of business in Richmond, Virginia. [BN]
The Plaintiff is represented by:
James Frantz, Esq.
William B. Shinoff, Esq.
FRANTZ LAW GROUP, APLC
402 W. Broadway, Ste. 860
San Diego, CA 92101
Telephone: (619) 233-5945
Facsimile: (619) 525-7672
E-mail: jpf@frantzlawgroup.com
wshinoff@frantzlawgroup.com
JUUL LABS: School District Sues Over Youth Health Crisis in Wis.
----------------------------------------------------------------
SCHOOL DISTRICT OF GREENFIELD, on behalf of itself and all others
similarly situated, Plaintiff v. JUUL LABS, INC. F/K/A PAX LABS,
INC.; JAMES MONSEES; ADAM BOWEN; NICHOLAS PRITZKER; HOYOUNG HUH;
RIAZ VALANI; ALTRIA GROUP, INC.; ALTRIA CLIENT SERVICES LLC; ALTRIA
GROUP DISTRIBUTION COMPANY; and PHILIP MORRIS USA, INC.,
Defendants, Case No. 3:21-cv-07518 (N.D. Cal., September 27, 2021)
is a class action against the Defendants for negligence, gross
negligence, and violations of Public Nuisance Law and the Racketeer
Influenced and Corrupt Organizations Act.
According to the complaint, the Defendants used three tactics to
maintain market dominance in the cigarette industry: (1) product
design to maximize addiction, (2) mass deception, and (3) targeting
of youth. Defendants JUUL Labs and Adam Bowen designed an
e-cigarette device allegedly intended to create and sustain
addiction, but without the stigma associated with cigarettes and
promoted them to vulnerable young population. JUUL Labs and other
Defendants developed and implemented a marketing scheme to mislead
users into believing that JUUL products contained less nicotine
than they actually do and were healthy and safe. The Defendants
enticed newcomers to nicotine with kid-friendly flavors without
ensuring the flavoring additives were safe for inhalation. The
Defendants targeted the youth market by placing vaporized campaigns
on youth-oriented websites and media and using influencers and
affiliates to amplify their message to a teenage audience. The
Defendants have successfully caused more young people to start
using e-cigarettes, creating a youth e-cigarette epidemic and
public health crisis, says the suit.
School District of Greenfield is a unified school district with its
offices located at 4850 South 60th Street in Greenfield,
Wisconsin.
JUUL Labs, Inc., formerly known as Pax Labs, Inc., is an American
electronic cigarette company, with its principal place of business
in San Francisco, California.
Altria Group, Inc. is a producer of tobacco products, with its
principal place of business in Richmond, Virginia.
Philip Morris USA, Inc. is a wholly-owned subsidiary of Altria
Group, Inc., with its principal place of business in Richmond,
Virginia.
Altria Client Services LLC is a tobacco company, with its principal
place of business in Richmond, Virginia.
Altria Group Distribution Company is a tobacco company, with its
principal place of business in Richmond, Virginia. [BN]
The Plaintiff is represented by:
James Frantz, Esq.
William B. Shinoff, Esq.
FRANTZ LAW GROUP, APLC
402 W. Broadway, Ste. 860
San Diego, CA 92101
Telephone: (619) 233-5945
Facsimile: (619) 525-7672
E-mail: jpf@frantzlawgroup.com
wshinoff@frantzlawgroup.com
JUUL LABS: Selma City Sues Over Youth's E-Cigarette Addiction
-------------------------------------------------------------
SELMA CITY SCHOOLS, DALLAS COUNTY, STATE OF ALABAMA, on behalf of
itself and all others similarly situated, Plaintiff v. JUUL LABS,
INC. F/K/A PAX LABS, INC.; JAMES MONSEES; ADAM BOWEN; NICHOLAS
PRITZKER; HOYOUNG HUH; RIAZ VALANI; ALTRIA GROUP, INC.; ALTRIA
CLIENT SERVICES LLC; ALTRIA GROUP DISTRIBUTION COMPANY; and PHILIP
MORRIS USA, INC., Defendants, Case No. 3:21-cv-07552 (N.D. Cal.,
September 28, 2021) is a class action against the Defendants for
negligence, gross negligence, and violations of Alabama Public
Nuisance Law and the Racketeer Influenced and Corrupt Organizations
Act.
According to the complaint, the Defendants used three tactics to
maintain market dominance in the cigarette industry: (1) product
design to maximize addiction, (2) mass deception, and (3) targeting
of youth. Defendants JUUL Labs and Adam Bowen designed an
e-cigarette device allegedly intended to create and sustain
addiction, but without the stigma associated with cigarettes and
promoted them to vulnerable young population. JUUL Labs and other
Defendants developed and implemented a marketing scheme to mislead
users into believing that JUUL products contained less nicotine
than they actually do and were healthy and safe. The Defendants
enticed newcomers to nicotine with kid-friendly flavors without
ensuring the flavoring additives were safe for inhalation. The
Defendants targeted the youth market by placing vaporized campaigns
on youth-oriented websites and media and using influencers and
affiliates to amplify their message to a teenage audience. The
Defendants have successfully caused more young people to start
using e-cigarettes, creating a youth e-cigarette epidemic and
public health crisis, says the suit.
Selma City Schools is a school district with its offices located at
2194 Broad Street, Selma, Alabama.
JUUL Labs, Inc., formerly known as Pax Labs, Inc., is an American
electronic cigarette company, with its principal place of business
in San Francisco, California.
Altria Group, Inc. is a producer of tobacco products, with its
principal place of business in Richmond, Virginia.
Philip Morris USA, Inc. is a wholly-owned subsidiary of Altria
Group, Inc., with its principal place of business in Richmond,
Virginia.
Altria Client Services LLC is a tobacco company, with its principal
place of business in Richmond, Virginia.
Altria Group Distribution Company is a tobacco company, with its
principal place of business in Richmond, Virginia. [BN]
The Plaintiff is represented by:
Andy D. Birchfield, Jr., Esq.
Joseph G. VanZandt, Esq.
Davis S. Vaughn, Esq.
BEASLEY ALLEN CROW METHVIN PORTIS & MILES, LLC
234 Commerce Street
Montgomery, AL 36103
Telephone: (334) 269-2343
E-mail: Andy.Birchfield@BeasleyAllen.com
Joseph.VanZandt@BeasleyAllen.com
Davis.Vaughn@BeasleyAllen.com
JUUL LABS: Township High School Sues Over Youth Health Crisis
-------------------------------------------------------------
TOWNSHIP HIGH SCHOOL DISTRICT NO. 211, on behalf of itself and all
others similarly situated, Plaintiff v. JUUL LABS, INC. F/K/A PAX
LABS, INC.; JAMES MONSEES; ADAM BOWEN; NICHOLAS PRITZKER; HOYOUNG
HUH; RIAZ VALANI; ALTRIA GROUP, INC.; ALTRIA CLIENT SERVICES LLC;
ALTRIA GROUP DISTRIBUTION COMPANY; and PHILIP MORRIS USA, INC.,
Defendants, Case No. 3:21-cv-07567 (N.D. Cal., September 28, 2021)
is a class action against the Defendants for negligence, gross
negligence, and violations of Public Nuisance Law and the Racketeer
Influenced and Corrupt Organizations Act.
According to the complaint, the Defendants used three tactics to
maintain market dominance in the cigarette industry: (1) product
design to maximize addiction, (2) mass deception, and (3) targeting
of youth. Defendants JUUL Labs and Adam Bowen designed an
e-cigarette device allegedly intended to create and sustain
addiction, but without the stigma associated with cigarettes and
promoted them to vulnerable young population. JUUL Labs and other
Defendants developed and implemented a marketing scheme to mislead
users into believing that JUUL products contained less nicotine
than they actually do and were healthy and safe. The Defendants
enticed newcomers to nicotine with kid-friendly flavors without
ensuring the flavoring additives were safe for inhalation. The
Defendants targeted the youth market by placing vaporized campaigns
on youth-oriented websites and media and using influencers and
affiliates to amplify their message to a teenage audience. The
Defendants have successfully caused more young people to start
using e-cigarettes, creating a youth e-cigarette epidemic and
public health crisis, says the suit.
Township High School District No. 211 is a unified school district
with its offices located at 1750 South Roselle Road in Palatine,
Illinois.
JUUL Labs, Inc., formerly known as Pax Labs, Inc., is an American
electronic cigarette company, with its principal place of business
in San Francisco, California.
Altria Group, Inc. is a producer of tobacco products, with its
principal place of business in Richmond, Virginia.
Philip Morris USA, Inc. is a wholly-owned subsidiary of Altria
Group, Inc., with its principal place of business in Richmond,
Virginia.
Altria Client Services LLC is a tobacco company, with its principal
place of business in Richmond, Virginia.
Altria Group Distribution Company is a tobacco company, with its
principal place of business in Richmond, Virginia. [BN]
The Plaintiff is represented by:
James Frantz, Esq.
William B. Shinoff, Esq.
FRANTZ LAW GROUP, APLC
402 W. Broadway, Ste. 860
San Diego, CA 92101
Telephone: (619) 233-5945
Facsimile: (619) 525-7672
E-mail: jpf@frantzlawgroup.com
wshinoff@frantzlawgroup.com
JUUL LABS: Triggers Youth E-Cigarette Crisis, Sheffield Suit Claims
-------------------------------------------------------------------
SHEFFIELD CITY SCHOOL DISTRICT, COLBERT COUNTY, STATE OF ALABAMA,
on behalf of itself and all others similarly situated, Plaintiff v.
JUUL LABS, INC. F/K/A PAX LABS, INC.; JAMES MONSEES; ADAM BOWEN;
NICHOLAS PRITZKER; HOYOUNG HUH; RIAZ VALANI; ALTRIA GROUP, INC.;
ALTRIA CLIENT SERVICES LLC; ALTRIA GROUP DISTRIBUTION COMPANY; and
PHILIP MORRIS USA, INC., Defendants, Case No. 3:21-cv-07576 (N.D.
Cal., September 28, 2021) is a class action against the Defendants
for negligence, gross negligence, and violations of Alabama Public
Nuisance Law and the Racketeer Influenced and Corrupt Organizations
Act.
According to the complaint, the Defendants used three tactics to
maintain market dominance in the cigarette industry: (1) product
design to maximize addiction, (2) mass deception, and (3) targeting
of youth. Defendants JUUL Labs and Adam Bowen designed an
e-cigarette device allegedly intended to create and sustain
addiction, but without the stigma associated with cigarettes and
promoted them to vulnerable young population. JUUL Labs and other
Defendants developed and implemented a marketing scheme to mislead
users into believing that JUUL products contained less nicotine
than they actually do and were healthy and safe. The Defendants
enticed newcomers to nicotine with kid-friendly flavors without
ensuring the flavoring additives were safe for inhalation. The
Defendants targeted the youth market by placing vaporized campaigns
on youth-oriented websites and media and using influencers and
affiliates to amplify their message to a teenage audience. The
Defendants have successfully caused more young people to start
using e-cigarettes, creating a youth e-cigarette epidemic and
public health crisis, says the suit.
Sheffield City School District is a school district with its
offices located at 300 West 6th Street, Sheffield, Alabama.
JUUL Labs, Inc., formerly known as Pax Labs, Inc., is an American
electronic cigarette company, with its principal place of business
in San Francisco, California.
Altria Group, Inc. is a producer of tobacco products, with its
principal place of business in Richmond, Virginia.
Philip Morris USA, Inc. is a wholly-owned subsidiary of Altria
Group, Inc., with its principal place of business in Richmond,
Virginia.
Altria Client Services LLC is a tobacco company, with its principal
place of business in Richmond, Virginia.
Altria Group Distribution Company is a tobacco company, with its
principal place of business in Richmond, Virginia. [BN]
The Plaintiff is represented by:
Andy D. Birchfield, Jr., Esq.
Joseph G. VanZandt, Esq.
Davis S. Vaughn, Esq.
BEASLEY ALLEN CROW METHVIN PORTIS & MILES, LLC
234 Commerce Street
Montgomery, AL 36103
Telephone: (334) 269-2343
E-mail: Andy.Birchfield@BeasleyAllen.com
Joseph.VanZandt@BeasleyAllen.com
Davis.Vaughn@BeasleyAllen.com
JUUL LABS: Tuscaloosa City Sues Over Youth E-Cigarette Epidemic
---------------------------------------------------------------
TUSCALOOSA CITY SCHOOLS, TUSCALOOSA COUNTY, STATE OF ALABAMA, on
behalf of itself and all others similarly situated, Plaintiff v.
JUUL LABS, INC. F/K/A PAX LABS, INC.; JAMES MONSEES; ADAM BOWEN;
NICHOLAS PRITZKER; HOYOUNG HUH; RIAZ VALANI; ALTRIA GROUP, INC.;
ALTRIA CLIENT SERVICES LLC; ALTRIA GROUP DISTRIBUTION COMPANY; and
PHILIP MORRIS USA, INC., Defendants, Case No. 3:21-cv-07565 (N.D.
Cal., September 28, 2021) is a class action against the Defendants
for negligence, gross negligence, and violations of Alabama Public
Nuisance Law and the Racketeer Influenced and Corrupt Organizations
Act.
According to the complaint, the Defendants used three tactics to
maintain market dominance in the cigarette industry: (1) product
design to maximize addiction, (2) mass deception, and (3) targeting
of youth. Defendants JUUL Labs and Adam Bowen designed an
e-cigarette device allegedly intended to create and sustain
addiction, but without the stigma associated with cigarettes and
promoted them to vulnerable young population. JUUL Labs and other
Defendants developed and implemented a marketing scheme to mislead
users into believing that JUUL products contained less nicotine
than they actually do and were healthy and safe. The Defendants
enticed newcomers to nicotine with kid-friendly flavors without
ensuring the flavoring additives were safe for inhalation. The
Defendants targeted the youth market by placing vaporized campaigns
on youth-oriented websites and media and using influencers and
affiliates to amplify their message to a teenage audience. The
Defendants have successfully caused more young people to start
using e-cigarettes, creating a youth e-cigarette epidemic and
public health crisis, says the suit.
Tuscaloosa City Schools is a school district with its offices
located at 1210 21st Avenue Tuscaloosa, Alabama.
JUUL Labs, Inc., formerly known as Pax Labs, Inc., is an American
electronic cigarette company, with its principal place of business
in San Francisco, California.
Altria Group, Inc. is a producer of tobacco products, with its
principal place of business in Richmond, Virginia.
Philip Morris USA, Inc. is a wholly-owned subsidiary of Altria
Group, Inc., with its principal place of business in Richmond,
Virginia.
Altria Client Services LLC is a tobacco company, with its principal
place of business in Richmond, Virginia.
Altria Group Distribution Company is a tobacco company, with its
principal place of business in Richmond, Virginia. [BN]
The Plaintiff is represented by:
Andy D. Birchfield, Jr., Esq.
Joseph G. VanZandt, Esq.
Davis S. Vaughn, Esq.
BEASLEY ALLEN CROW METHVIN PORTIS & MILES, LLC
234 Commerce Street
Montgomery, AL 36103
Telephone: (334) 269-2343
E-mail: Andy.Birchfield@BeasleyAllen.com
Joseph.VanZandt@BeasleyAllen.com
Davis.Vaughn@BeasleyAllen.com
KHOSROW SADEGHIAN: Court Grants in Part Marquis' Bids for Sanctions
-------------------------------------------------------------------
The U.S. District Court for the Eastern District of Texas, Sherman
Division, granted in part and denied in part the motions for
sanctions filed in the lawsuit captioned BILLY MARQUIS, et al.,
Plaintiffs v. KHOSROW SADEGHIAN and AMY JO SADEGHIAN, Defendants,
Case No. 4:19-cv-626-RWS-KPJ (E.D. Tex.).
Pending before the Court are Plaintiffs Billy Marquis, Alexis
Marquis, and Anthony Marquis' Opposed Motion for Sanctions and
Supplement to Opposed Motion for Sanctions. Defendants Khosrow
Sadeghian and Amy Jo Sadeghian filed two responses: the first
response was filed by Shabaz Nizami, the Defendants' former counsel
of record, and the second response was filed by the Defendants
proceeding pro se. The Plaintiffs then filed a reply.
The Court ordered supplemental briefing, which the parties timely
submitted. The Court also held eight hearings, seven of which
addressed the underlying conduct giving rise to the Motions for
Sanctions. In the eighth hearing, the Court heard oral argument on
the Motions for Sanctions.
Background
The Plaintiffs state that the Defendants own over one thousand
properties in Texas and other states, which they purchase, sell,
and lease to generate income. The Plaintiffs allege that, in
September 2014, the Defendants recruited them from Houston, Texas,
to the North Texas region to work for the Defendants and live in
one of the Defendants' properties. After the Plaintiffs arrived,
the Defendants allegedly exerted control over the Plaintiffs, kept
them "poverty-stricken" such that they could not leave, and
overall, treated them "as though they were slaves."
On Aug. 27, 2019, the Plaintiffs filed an Original Complaint, which
was superseded by a First Amended Complaint and a Second Amended
Complaint. The Second Amended Complaint asserts three causes of
actions against the Defendants: (1) willful violations of the Fair
Labor Standards Act ("FLSA"); (2) violations of the Texas Deceptive
Trade Practices Act ("DTPA"); and (3) negligent injuring of
Plaintiff Billy Marquis. The Plaintiffs' FLSA claim seeks
certification of a collective action, which, if granted, would be
comprised of current and former employees of the Defendants.
Discovery Dispute
On March 5, 2020, the Court entered its Order Governing Proceedings
("OGP"), wherein the Court placed the parties on notice that a
party that fails to timely disclose mandatory documents and
information will not, unless such failure is harmless, be permitted
to use such evidence at trial, at a hearing, or in support of a
motion. The OGP also ordered the Defendants to complete initial
mandatory disclosures by March 30, 2020. Such disclosures included
not only those outlined by Rule 26(a)(1), but also, a copy of all
documents, electronically stored information, witness statements,
and tangible things in the possession, custody or control of the
disclosing party that are relevant to the claim or defense of any
party.
After the Court conducted a Rule 16 management conference, it
entered a Scheduling Order. In the Scheduling Order, the Court
ordered the parties to complete limited discovery for conditional
certification of the collective action by Oct. 2, 2020.
On July 14, 2020, Eugene DuBose, counsel for the Plaintiffs,
notified the Court of a discovery dispute; the Court held a hearing
regarding the discovery dispute on July 20, 2020 ("First Hearing").
DuBose and Nizami appeared before the Court. The parties discussed
the general nature of the dispute, and the Court ordered the
parties to file letter briefs to explain their positions in further
detail. The Plaintiffs' letter brief advises that on May 18, 2020,
the Plaintiffs served the Defendants a Request for Production
("RFP"), and the Defendants did not produce any documents until
Aug. 3, 2020. Further, the Plaintiffs represented that the Aug. 3,
2020 production was deficient for several reasons, including that
the Defendants failed to organize and label documents such that the
Plaintiffs could determine which documents corresponded to which
categories identified in the RFP, and that the Defendants did not
produce telephone numbers for certain individuals, even though the
Plaintiffs requested their contact information.
In response, the Defendants' letter brief stated they would produce
the outstanding documents by Sept. 4, 2020. On Aug. 26, 2020, the
Court held a hearing, and that same day, the Court entered an Order
compelling the Defendants to produce responsive documents within
their possession, custody, or control by Sept. 4, 2020 (the "Second
Hearing"). The Order further directed that the documents be
Bates-numbered and organized.
On Sept. 25, 2020--two weeks after the Court's Sept. 4, 2020
deadline--the Plaintiffs filed a Motion to Expedite Discovery.
Therein, the Plaintiffs represented that although the Defendants
had produced certain documents on Sept. 4, 2020, the production was
inadequate. One inadequacy related to the contact information
produced by the Defendants. The Plaintiffs then served an RFP for
such contact information on Sept. 11, 2020, and the Plaintiffs'
Motion to Expedited Discovery requested that the Court order the
RFP be complied with by Oct. 2, 2020--the deadline for discovery
relating to conditional certification.
The Court ordered an expedited response, which the Defendants did
not file. On Oct. 1, 2020--the day before the Scheduling Order's
discovery deadline--the Court held yet another hearing ("Third
Hearing"). During the Third Hearing, the Plaintiffs argued that the
Defendants had still not fully complied with their discovery
obligations.
In response, the Defendants argued the documents sought by the
Plaintiffs were irrelevant to the claims and defenses in this
lawsuit, and, even if they were relevant, the Defendants should not
be compelled to produce documents from 2013, as any claims arising
from conduct in 2013 fell outside the FLSA's statute of
limitations.
Ultimately, the Court found the documents sought by the Plaintiffs
were relevant to the claims and defenses in this suit. However, the
Court noted that only documents from 2014 and forward were
discoverable, as documents from 2013 were responsive to claims
whose statutes of limitations had already lapsed. The Court further
observed that, at this juncture, five months had passed since the
Plaintiffs first filed their RFP, and the Defendants had still not
complied with their discovery obligations, despite having two
hearings on the matter.
The Court stated on the record that it was considering imposing
sanctions. The Court then ordered the Defendants to fulfill their
outstanding discovery obligations by Oct. 9, 2020. In that Order,
the Court explicitly warned the Defendants that failure to comply
with this Order may result in sanctions.
On Oct. 9, 2020, the Defendants filed a notice, wherein they
represented they had requested checks from the relevant banking
institutions, and such checks were arriving in batches. On Oct. 14,
2020, the Plaintiffs filed a notice, wherein they described the
discovery produced as profoundly inadequate. The Plaintiffs
explained that, based on their review of other documents, there
should be at least 534 checks issued from the Defendants to
Plaintiff Billy Marquis. However, of the checks produced, only a
handful were made to Plaintiff Billy Marquis.
On Nov. 3, 2020, the Plaintiffs filed another notice, wherein the
Plaintiffs described the discovery dispute as virtually unchanged.
The Plaintiffs explained that although they received 139 pages of
checks, most of the checks were issued to a Jacky Nash, who was
unlikely to be a putative class action member. The latest
production of documents contained no checks issued to Plaintiff
Billy Marquis, the central party in this lawsuit. Based on the
Plaintiffs' review of other documents, there should have been at
least 624 bills or checks issued to Plaintiff Billy Marquis.
On Nov. 19, Nov. 24, and Dec. 8, 2020, the Court held,
respectively, a status conference regarding the Defendants'
progress with producing responsive documents, a hearing on Nizami's
motion to withdraw, and a show cause hearing ("Fourth Hearing");
Minute Entry for November 24, 2020 ("Fifth Hearing"); Minute Entry
for December 8, 2020 ("Sixth Hearing").
Motions for Sanctions
Between the Fifth and Sixth Hearings, the Plaintiffs filed the
Motions for Sanctions, wherein they ask the Court to impose five
punitive measures: (1) deem certain facts as established for the
purposes of this action; (2) prohibit Defendants from supporting or
opposing designated claims and defendants; (3) prohibit Defendants
from introducing designated matters into evidence; (4) bar
Defendants from filing any response to Plaintiffs' Motion for
Conditional Certification of their FLSA collective action; and (5)
award DuBose attorney fees for litigating this discovery dispute.
The Plaintiffs submitted invoices authored by DuBose, wherein he
documented the extra time he spent litigating the discovery dispute
summarized herein ("Invoices"). Nizami, on behalf of the
Defendants, filed a response opposing the Motions for Sanctions.
During the Sixth Hearing, the Court expressed its dismay at how
this discovery dispute had unfolded, as seven months had passed
since the Plaintiffs served the first RFP and hundreds of documents
were still outstanding. The Court required Nizami and the
Defendants to show cause as to why sanctions should not be issued.
In response, Nizami explained he was not personally handling the
production of the checks, as another attorney from another firm
representing the Defendants, who had not made an appearance in this
matter, was in charge of handling the production of banking
records. As such, Nizami had not subpoenaed the banking
institutions.
The Court expressed its dissatisfaction with this explanation. The
Court stressed that it was Nizami's responsibility to ensure that
the Defendants fulfilled their discovery obligations in this
matter--not an attorney unknown to the Court who had yet to make an
appearance in this case. The Court further warned that, at this
juncture, sanctions in some form were appropriate. However, the
Court found the relief affecting the merits of this case was
extreme, as the litigation was still in its early stages.
The Court noted that, towards the end of the litigation, if the
Defendants failed to produce evidence to support a claim or defense
as required, certain facts favorable to the Plaintiffs could
properly be presumed true under the Federal Rules of Civil
Procedure and the Local Rules. The Court concluded the Sixth
Hearing by ordering the Defendants to produce certain documents and
noting it would consider awarding the Plaintiffs attorney's fees.
On Dec. 9, 2020, the Court issued a Memorandum Opinion and Order,
which ordered the Defendants to (1) serve subpoenas on the relevant
banking institutions by Dec. 11, 2020, (2) state in the subpoenas
that the banking institutions were to produce documents no later
than 30 days after being served with the subpoenas, and (3)
organize the banking documents and produce them to the Plaintiffs
no later than seven days after receiving the documents from the
banking institutions.
Because the attorney-client relationship between Nizami and the
Defendants had deteriorated, the Court permitted Nizami to withdraw
his representation. On Dec. 18, 2020, the Court held another
hearing, during which the Court granted the Defendants leave to
file a pro se response to the Motions for Sanctions, which the
Defendants timely submitted ("Seventh Hearing"). Thereafter, the
Plaintiffs filed a reply.
On Dec. 31, 2020, new counsel made an appearance on behalf of the
Defendants. Since new counsel made an appearance, the parties have
not contacted the Court regarding a discovery dispute.
Mr. DuBose's Hourly Rate
DuBose's Invoices report that he has expended 75.6 hours litigating
this discovery dispute. Citing an hourly rate of $400 per hour, the
Motions for Sanctions seek a total of $30,240 in attorney's fees.
Both Nizami and the Defendants' responses object to DuBose's hourly
rate.
Mr. Nizami and the Defendants argue that, if the Plaintiffs are to
be awarded attorney's fees, the applicable hourly rate should be
$100 per hour, not $400 per hour. After the Defendants filed their
pro se response, new counsel made an appearance on their behalf.
The Court then ordered the Plaintiffs and the Defendants, through
new counsel, to file supplemental briefing on the following issue:
If a "low bono" attorney is entitled to sanctions in the form of
reasonable attorney's fees, is the movant-attorney entitled to
compensation at the prevailing market rate, or the discounted rate
offered to clients?
The parties timely filed their supplemental briefs, and on July 22,
2021, the Court heard oral argument from the parties ("Eighth
Hearing"). During the Eighth Hearing and the briefing prepared
thereto, DuBose confirmed that he charges the Plaintiffs a
discounted hourly rate of $100 per hour.
Analysis
A. Whether Sanctions Should Be Issued
As explained at length in this Court's Dec. 6, 2020 Memorandum
Opinion and Order, the Defendants should be sanctioned for
embroiling the parties and the Court in this protracted discovery
dispute.
The Court, through its OGP and Scheduling Order, placed the
Defendants on advance notice of their discovery obligations. On May
18, 2020, the Plaintiffs served their first RFP on the Defendants.
Over seven months, the Court held seven hearings to monitor the
Defendants' progress towards producing responsive documents and to
remind them of their discovery obligations.
Magistrate Judge Kimberly C. Priest Johnson notes that the
Defendants repeatedly delayed and offered unsatisfactory excuses
and arguments for their delay. As a result, the Court entered four
written Orders instructing the Defendants to meet their discovery
obligations, and the Defendants did not comply.
Under Rule 37(b)(2)(A) of the Federal Rules of Civil Procedure, the
Judge holds that sanctions are warranted.
B. Which Sanctions Should Be Issued
In their Motions for Sanctions, the Plaintiffs ask the Court to:
(1) deem certain facts as established in this matter; (2) prohibit
the Defendants from supporting or opposing certain claims and
defenses; (3) prohibit the Defendants from introducing certain
matters into evidence; (4) bar the Defendants from filing a
response to the Plaintiffs' motion for conditional certification;
and (5) award the Plaintiffs reasonable attorney's fees arising
from this discovery dispute.
The first three sanctions sought by the Plaintiffs are too severe,
Judge Priest Johnson observes. The Court must issue sanctions
conservatively. In so doing, the Court must take care to impose the
least severe sanction that is adequate to deter the behavior under
the particular circumstances, citing Smith & Fuller, PA, 685 F.3d
at 488.
Here, the Court finds these three sanctions sought--striking the
Defendants' pleadings, prohibiting the Defendants from mounting a
defense, and prohibiting the Defendants from introducing certain
issues into evidence--prematurely affect the underlying merits of
the case. As the Court previously noted, the Motions for Sanctions
were filed when this case was in its procedural infancy, and the
Court had yet to decide the preliminary question of whether this
lawsuit should proceed as a collective action.
The Court concludes awarding attorney's fees sufficiently furthers
Rule 37(b)'s deterrence goals. However, should the Defendants
continue to flout their discovery obligations, the Court may impose
more severe sanctions in the future. The Plaintiffs' request for
these three sanctions is, therefore, denied without prejudice.
As to the fourth sanction sought by the Plaintiffs--prohibiting the
Defendants from filing a response to the Plaintiffs' Amended Motion
for Conditional Certification of Collective Action ("Amended Motion
for Conditional Certification")--this issue is now moot, Judge
Priest Johnson finds. While the Amended Motion for Conditional
Certification was pending, the Fifth Circuit decided Swales v. KLLM
Transport Services, LLC, 985 F.3d 430 (5th Cir. 2021), which held
that district courts may no longer conditionally certify an FLSA
collective action.
Accordingly, the Court denied the Amended Motion for Conditional
Certification and ordered the parties to propose an amended
scheduling order suggesting litigation phases consistent with
Swales, which the parties timely submitted. Because the Amended
Motion for Conditional Certification is no longer before the Court,
the Plaintiffs' request for this fourth sanction is denied as
moot.
Lastly, with respect to attorney's fees, the Court finds awarding
some amount of attorney's fees is appropriate. The Defendants
failed to fulfill their discovery obligations for seven months,
which forced the Court to hold eight hearings, wade through
numerous filings, and issue four Orders compelling the production
of documents. The Plaintiffs are entitled to a remedy compensating
them for their added litigation costs. Therefore, the Plaintiffs'
request for attorney's fees is granted.
C. Amount of Attorney's Fees to Award
Under Rule 37(b)(2)(E) of the Federal Rules of Civil Procedure, a
party may be personally liable for reasonable expenses, including
attorney's fees, caused by the failure to comply with a discovery
order (Batson v. Neal Spelce Assocs., Inc., 765 F.2d 511, 516 (5th
Cir. 1985)).
Reasonable hourly rates are determined by referring to the
prevailing market rate in the community in which the district court
sits. Within the Eastern District of Texas, Sherman Division,
courts have found the following hourly rates reasonable in an FLSA
collective action case: $275 per hour for an attorney with 19 years
of experience; $325 per hour for an attorney with 20 years of
experience; $400 per hour for an attorney with years of experience;
and $450 per hour for an attorney with 24 years of experience.
Mr. DuBose has submitted his curriculum vitae, which reports that
he has approximately 50 years of legal experience. He has
experience practicing commercial litigation at both the trial and
appellate levels, and he has served as an Assistant Professor at
Northwestern University School of Law. It, therefore, appears his
requested hourly rate of $400 per hour is reasonable based on the
prevailing market rate.
However, the Court is mindful of the three goals underlying an
award of attorney's fees: (1) reimbursing the Plaintiffs for the
costs actually incurred as a result of the Defendants'
disobedience; (2) deterring future misconduct; and (3) ensuring the
sanction imposed is the least severe in achieving the goal of
deterrence.
In light of these considerations, the Court finds that the
reasonable hourly rate, in this instance, is $300 per hour. This
figure accounts for the following: the $100 rate DuBose actually
charged the Plaintiffs, the hourly rates this Court has previously
approved in FLSA actions, deterring the Defendants and others from
similar misconduct, and the Court's obligation to impose the least
severe sanction available.
Having reviewed the line items reported in DuBose's Invoices and
drawing from the Court's own experience with similar discovery
disputes, the Court finds the 75.6 hours expended on this discovery
dispute excessive. For example, on November 26 and 27, 2020, DuBose
purportedly spent six hours drafting a letter to the Court. The
letter received by the Court was a five-page document with little
legal analysis.
The Court has reviewed the Invoices and cross-referenced the dates
of these activities with their corresponding court filings. Having
done so, the Court concludes the 75.6 hours expended on this
discovery dispute should be reduced by twenty percent. Therefore,
the Court concludes 60.48 hours constitute a reasonable amount of
time spent on this discovery dispute.
In light of this, a lodestar calculation of $300 per hour for 60.48
hours of work yields a fee award of $18,144.
After the lodestar is determined, the Court may then adjust the
lodestar upward or downward depending on the twelve factors set
forth in Johnson v. Georgia Highway Exp., Inc., 488 F.2d 714,
717-19 (5th Cir. 1974). The factors include the time and labor
required; the novelty and difficulty of the questions; and the
skill requisite to perform the legal service properly.
The Court does not discern any exceptional circumstances to warrant
an adjustment.
Overall, Judge Priest Johnson holds, four Johnson factors weigh in
favor of an upward adjustment and eight Johnson factors weigh
neutrally. On balance, the Court discerns no exceptional
circumstances to warrant an upward or downward adjustment of the
lodestar rate.
Conclusion
For these reasons, the Plaintiffs' Motions for Sanctions are
granted in part and denied in part as follows:
1. The Plaintiffs' request that certain facts be deemed
established in this action, that the Defendants are
prohibited from supporting or opposing certain claims and
defenses, and that the Defendants are prohibited from
introducing certain matters into evidence is denied without
prejudice;
2. The Plaintiffs' request that the Defendants be barred from
filing any response to the Plaintiffs' Motion for
Conditional Certification is denied as moot; and
3. The Plaintiffs' request for attorney's fees is granted.
However, the Plaintiffs' request for $30,240 for DuBose's
75.6 hours of legal work, calculated using an hourly rate
of $400 per hour, is denied. The Plaintiffs are entitled to
$18,144 for DuBose's 60.48 hours of work, calculated using
an hourly rate of $300 per hour.
It is, therefore, ordered that the Defendants are sanctioned for
disobeying the Court's discovery orders, and the Defendants will
pay DuBose attorney's fees in the amount of $18,144 for their
misconduct. The Defendants will pay DuBose $18,144 no later than
thirty (30) days from the date of this Memorandum Opinion and
Order.
It is further ordered that the Defendant will notify the Court no
later than five (5) days after submitting their payment of $18,144
to DuBose.
A full-text copy of the Court's Memorandum Opinion and Order dated
Sept. 13, 2021, is available at https://tinyurl.com/3efz8wyz from
Leagle.com.
KING OF JAMAICA AUTO: Devora Sues to Recover Unpaid Overtime Wages
------------------------------------------------------------------
Wilfredo Devora, on behalf of himself and those similarly situated,
Plaintiff, v. King of Jamaica Auto, Inc. and Saman Arasheben,
Defendants, Case No. 21-cv-05295 (E.D. N.Y., September 23, 2021),
seeks to recover unpaid wages, liquidated damages and reasonable
attorneys' fees and costs under the Fair Labor Standards Act.
King of Jamaica Auto is a company that sells preowned vehicles to
residential and commercial customers where Devora was employed as a
non-exempt detailer from approximately June 2009, through May 2021.
He claims to have routinely worked in excess of forty hours per
week as part of their regular job duties but was not paid overtime
compensation at a rate of time and a half his regular rate of pay
for hours worked over forty in a workweek. Devora also claims not
to have received wage statements. [BN]
Plaintiff is represented by:
Andrew R. Frisch, Esq.
MORGAN & MORGAN, P.A.
8151 Peters Road, Suite 4000
Plantation, FL 33324
Telephone: (954) WORKERS
Facsimile: (954) 327-3013
Email: afrisch@forthepeople.com
KONINKLIJKE PHILIPS: Brengle Files Suit in W.D. Pennsylvania
------------------------------------------------------------
A class action lawsuit has been filed against Koninklijke Philips
N.V., et al. The case is styled as BILL BRENGLE, SANDRA BROWN,
GREGORY BYRGE, BRENDA DE JOURNETTE, MYRA JEAN GILDER, JACYLN S.
KIZZIRE, CHRISTOPHER MCELROY, WILLIAM BARI, GABRIEL CARRION, LINDA
G. HUDSON, RONALD LEE HUDSON, PONCE MCELROY, GLENN PARADAY, MARVIN
KEITH MYLES, JEFF RANKIN, JEFFREY BARTALO, ADAM COTE, SEDRICK
YATES, SARAH M. CLAUNCH, ROLAND RENDON, JOHN TAYLOR, WILLIE TYRA,
CRAIG WOOD, DONNA WOOD, on behalf of themselves and all others
similarly situated v. Koninklijke Philips N.V., Philips North
America LLC, Philips RS North America LLC, Case No.
2:21-cv-01300-MRH (W.D. Pa., Sept. 29, 2021).
The nature of suit is stated as Contract Product Liability.
Koninklijke Philips N.V. -- https://www.philips.com/global -- is a
Dutch multinational conglomerate corporation that was founded in
Eindhoven.[BN]
The Plaintiff is represented by:
Arnold Levin, Esq.
LEVIN SEDRAN & BERMAN
510 Walnut Street, Suite 500
Philadelphia, PA 19106
Phone: (215) 592-1500
Fax: (215) 592-4663
Email: alevin@lfsblaw.com
KONINKLIJKE PHILIPS: Drake Files Suit in S.D. Georgia
-----------------------------------------------------
A class action lawsuit has been filed against Koninklijke Philips
N.V., et al. The case is styled as Nathaniel Drake, individually
and on behlf of all others similarly situated v. Koninklijke
Philips N.V., Philips North America LLC, Philips RS North America
LLC, Case No. 4:21-cv-00280-WTM-CLR (S.D. Ga., Sept. 29, 2021).
The nature of suit is stated as Contract Product Liability for
Contract Dispute.
Koninklijke Philips N.V. -- https://www.philips.com/global -- is a
Dutch multinational conglomerate corporation that was founded in
Eindhoven.[BN]
The Plaintiff is represented by:
Kyle G.A. Wallace, Esq.
SHIVER HAMILTON, LLC
One Securities Centre
3490 Piedmont Road, Suite 640
Atlanta, GA 30305
Phone: (404) 593-0020
Fax: (888) 501-9536
Email: kwallace@shiverhamilton.com
KONINKLIJKE PHILIPS: Mercure Files Suit in N.D. Georgia
-------------------------------------------------------
A class action lawsuit has been filed against Koninklijke Philips
N.V., et al. The case is styled as John Mercure, Lori Ann
Westbrook, Janice Sue Miller, Harold Swann, Darcey S. Leis, William
D. Leis, individually and on behalf of all others similarly
situated v. Koninklijke Philips N.V., Philips North America LLC,
Philips RS North America LLC, Case No. 1:21-cv-04016-JPB (N.D. Ga.,
Sept. 29, 2021).
The nature of suit is stated as Personal Injury: Health
Care/Pharmaceutical Personal Injury Product Liability.
Koninklijke Philips N.V. -- https://www.philips.com/global -- is a
Dutch multinational conglomerate corporation that was founded in
Eindhoven.[BN]
The Plaintiff is represented by:
Jeff P. Shiver, Esq.
SHIVER HAMILTON, LLC - ATL
3340 Peachtree Rd., Suite 950
Atlanta, GA 30326
Phone: (404) 593-0020
Email: Jeff@ShiverHamilton.com
KONINKLIJKE PHILIPS: Powell Files Suit in M.D. Georgia
------------------------------------------------------
A class action lawsuit has been filed against Koninklijke Philips
N.V., et al. The case is styled as Justin L. Powell, individually
and on behalf of all others similarly situated v. Koninklijke
Philips N.V., Philips North America LLC, Philips RS North America
LLC, Case No. 1:21-cv-00177-WLS (M.D. Ga., Sept. 29, 2021).
The nature of suit is stated as Contract Product Liability.
Koninklijke Philips N.V. -- https://www.philips.com/global -- is a
Dutch multinational conglomerate corporation that was founded in
Eindhoven.[BN]
The Plaintiff is represented by:
JOSEPH SHANE HUDSON, ESQ.
PO BOX 2520
TIFTON, GA 31793
Phone: (229) 396-5845
Fax: (229) 396-5845
Email: jshudson@hudsoninjuryfirm.com
- and -
Kyle Gregory Wallace, Esq.
3490 PIEDMONT RD, STE 640
ATLANTA, GA 30305
Phone: (404) 593-0020
Fax: (888) 501-9536
Email: kwallace@shiverhamilton.com
LEESBURG, AL: Wins Bid for Summary Judgment in Sutton Class Suit
----------------------------------------------------------------
The U.S. District Court for the Northern District of Alabama,
Middle Division, issued a Memorandum Opinion in the lawsuit titled
LENA SUTTON, on behalf of herself and those similarly situated,
Plaintiff v. LEESBURG, ALABAMA, et al., Defendants, Case No.
4:20-cv-00091-ACA (N.D. Ala.):
* denying the Plaintiff's motion for summary judgment;
* granting Leesburg's motion for summary judgment; and
* granting the State's motion for summary judgment.
Plaintiff Lena Sutton lent her car to a friend who, unbeknownst to
her, used it to carry drugs. After police officers from Defendant
Town of Leesburg pulled her friend over and found the drugs,
Leesburg seized Ms. Sutton's car and asked the State of Alabama to
institute civil forfeiture proceedings under Alabama Code Section
20-2-93. In accordance with that statute, Leesburg retained Ms.
Sutton's car during the pendency of the civil forfeiture
proceedings in state court, which took over a year to complete and
ended in a judgment in Ms. Sutton's favor.
Ms. Sutton filed this federal putative class action against
Leesburg. The State of Alabama intervened, under 28 U.S.C. Section
2403(b), for the limited purpose of "argument on the question of
constitutionality." The Court has dismissed all of Ms. Sutton's
claims except her procedural due process claim, in which she argues
that the Fourteenth Amendment to the United States Constitution
requires the provision of a post-seizure, pre-judgment hearing on
whether there is probable cause to support the retention of
property during the pendency of the forfeiture proceeding.
Before the Court now are cross-motions for summary judgment filed
by Ms. Sutton, Leesburg, and the State. Ms. Sutton seeks summary
judgment in her favor only as to liability, and Leesburg and the
State seek summary judgment in their favor.
Under the Barker v. Wingo, 407 U.S. 514 (1972) test for whether a
defendant received a speedy trial, no reasonable jury could find in
Ms. Sutton's favor, District Judge Annemarie Carney Axon opines.
Accordingly, the Court will deny her motion for summary judgment
and will grant Leesburg's and the State's motions for summary
judgment.
Discussion
In deciding cross-motions for summary judgment, the Court must
determine whether, accepting the evidence in the light most
favorable to the non-moving party, the moving party is entitled to
judgment as a matter of law, Judge Axon notes, citing Rule 56(a) of
the Federal Rules of Civil Procedure and Fort Lauderdale Food Not
Bombs v. City of Fort Lauderdale, 901 F.3d at 1239 (11th Cir.
2018). Because the parties do not dispute any material facts and
the resolution of all three cross-motions depend on the same legal
question, the Court addresses them all together.
Judge Axon states that the decisive question in this case is
whether the Court applies the Mathews v. Eldridge test or the
Barker v. Wingo test to Ms. Sutton's procedural due process claim.
Mathews provides a three-factor balancing test to determine whether
a person received procedural due process before the deprivation of
a liberty or property interest. Barker provides a four-factor
balancing test to determine whether a defendant received a speedy
trial.
The parties dispute which test applies in this case. Ms. Sutton
contends that, as the Court previously found, Mathews governs here
because she asserts a procedural due process claim based on
Leesburg's retention of her car without a prompt post-seizure
probable cause hearing. Leesburg and the State argue that binding
Eleventh Circuit authority requires application of the Barker
speedy trial test.
The Court agrees with Leesburg and the State. Judge Axon explains
that the Eleventh Circuit's decision in Gonzales v. Rivkind, 858
F.2d 657 (11th Cir. 1988), taken together with a precedential
opinion in the criminal forfeiture context, mandates use of the
Barker test.
Despite the abundant briefing in this case and this Court's express
invitation to address the applicability of the Barker test, Ms.
Sutton's briefs do not present any argument that she can prevail
under the Barker test, Judge Axon opines. The Plaintiff is,
therefore, not entitled to summary judgment on her claim, and the
Court will deny her motion.
The State argues that Ms. Sutton cannot satisfy the Barker factors
because the State filed the civil forfeiture action within 14 days
of the seizure; any delay in the final judgment was due to Ms.
Sutton's own dilatory conduct; Ms. Sutton never asserted her right
to a speedy trial; and she suffered no prejudice because she
prevailed in the civil forfeiture.
Judge Axon finds that these arguments are persuasive, especially
given Ms. Sutton's failure to respond to them. Judge Axon points
out that no reasonable jury could find that Ms. Sutton has
sustained her burden of establishing that she was denied a speedy
forfeiture proceeding. Accordingly, the Court will grant the
State's and Leesburg's motions for summary judgment.
Conclusion
The Court will deny Ms. Sutton's motion for summary judgment. The
Court will grant Leesburg's and the State's motions for summary
judgment. The Court will enter summary judgment in favor of
Leesburg and against Ms. Sutton on her procedural due process
claim.
The Court will enter a separate order and final judgment consistent
with this opinion.
A full-text copy of the Court's Memorandum Opinion dated Sept. 13,
2021, is available at https://tinyurl.com/9hev57py from
Leagle.com.
LIVE NATION: Judge Grants Request to Arbitrate Class Action
-----------------------------------------------------------
J. Edward Moreno, writing for Law3600, reports that a California
federal judge granted Live Nation Entertainment and Ticketmaster's
request to arbitrate a class action accusing the ticket selling
giants of monopolizing ticket sales, saying that the concertgoers'
claims that they are rushed to complete web purchases aren't enough
to get out of the agreement. [GN]
MARTIN RESOURCE: Loses Bid for Class Action Liability Coverage
--------------------------------------------------------------
Daphne Zhang, writing for Law360, reports that the Fifth Circuit
has freed a Chubb unit from having to cover Martin Resource
Management Corp.'s defense costs in two class actions, agreeing
with a lower court that underlying litigation didn't trigger the
Texas oil company fiduciary liability coverage. [GN]
MEDALLIA INC: Faces Shareholder Class Action in New York
--------------------------------------------------------
Andrews & Springer LLC, a boutique securities class action law firm
focused on representing shareholders nationwide, on Sept. 22
disclosed that a class action lawsuit has been filed by another law
firm on behalf of shareholders of Medallia, Inc. (NYSE: MDLA)
("Medallia" or the "Company") for possible corporate misconduct and
breach of fiduciary duty.
A copy of the complaint is available from the Court or from Andrews
& Springer LLC. If you currently own shares of Medallia and want to
receive additional information and protect your investments free of
charge, please visit us at
http://www.andrewsspringer.com/cases-investigations/medallia-merger-class-action-investigation/
or contact Craig J. Springer, Esq. at
cspringer@andrewsspringer.com, or call toll free at 1-800-423-6013.
NO CLASS HAS YET BEEN CERTIFIED IN THE ABOVE ACTION. UNTIL A CLASS
IS CERTIFIED, YOU ARE NOT REPRESENTED BY COUNSEL UNLESS YOU RETAIN
ONE. YOU MAY ALSO REMAIN AN ABSENT CLASS MEMBER AND DO NOTHING AT
THIS POINT. YOU MAY RETAIN COUNSEL OF YOUR CHOICE.
On July 26, 2021, Medallia and private equity firm Thoma Bravo LLC
("Thoma Bravo") announced the signing of a definitive merger
agreement pursuant to which Thomas Bravo will acquire Medallia in a
merger worth $6.4 billion (the "Merger"). As a result of the
Merger, Medallia shareholders are only anticipated to receive
$34.00 per share in cash in exchange for each share of Medallia.
A Medallia shareholder represented by another law firm has filed a
class action complaint against Medallia for federal securities
violations. The complaint was filed in the United States District
Court, Southern District of New York, Case No. 1:21-cv-7475.
According to the lawsuit, which was filed on September 7, 2021,
defendants filed a proxy statement (the "Proxy") with the United
States Securities and Exchange Commission ("SEC") in connection
with the Merger.
The Proxy omits material information with respect to the Merger,
which renders the Proxy false and misleading. Accordingly,
plaintiff seeks that the Merger should be enjoined until defendants
disclose more information to stockholders.
Andrews & Springer is a boutique securities class action law firm
representing shareholders nationwide who are victims of securities
fraud, breaches of fiduciary duty or corporate misconduct. Having
formerly defended some of the largest financial institutions in the
world, our founding members use their valuable knowledge,
experience, and superior skill for the sole purpose of achieving
positive results for investors. These traits are the hallmarks of
our innovative approach to each case our Firm decides to prosecute.
For more information please visit our website at
www.andrewsspringer.com. This notice may constitute Attorney
Advertising.
Contact:
Craig J. Springer, Esq.
cspringer@andrewsspringer.com
Toll Free: 1-800-423-6013 [GN]
MIDLAND CREDIT: Order Imposing Sanctions in Miller Suit Vacated
---------------------------------------------------------------
In the case, DEONDRA MILLER, individually, and on behalf of all
other similarly situated consumers, Plaintiff-Appellant v. MIDLAND
CREDIT MANAGEMENT, INC., Defendant-Appellee, Case No. 20-13390,
Non-Argument Calendar (11th Cir.), the U.S. Court of Appeals for
the Eleventh Circuit vacates the district court's order imposing
sanctions on Attorneys Daniel Zemel and Brian Giles, arising out of
their representation of Plaintiff Deondra Miller in the district
court.
Background
On appeal, the attorneys argue that the district court abused its
discretion in sanctioning them: (1) by not providing sufficient
notice before issuing sanctions; (2) by basing its decision on
insufficient evidence and failing to make a finding of bad faith;
and (3) by ignoring evidence the attorneys presented in denying
their motion for reconsideration. After careful review, we vacate
and remand the order imposing sanctions.
In 2019, Deondra Miller filed a class action complaint against
Midland, asserting violations of the Fair Debt Collection Practices
Act, 15 U.S.C. Section 1692 et seq. Pursuant to a pretrial
scheduling order referring the case to mediation, the mediation
should have been conducted by June 4, 2020. Because that deadline
had passed and the record did not reflect that a mediation had
occurred, the district court directed the parties to file a status
report.
On June 12, 2020, the parties filed a status report explaining that
they had scheduled a mediation for June 16, 2020. In a subsequent
order, the district court noted that the parties did not "address
why despite their diligence, they have been unable to mediate by
the mediation deadline." But the court entered a "limited"
extension of the mediation deadline to June 16 and ordered the
parties to file a mediation report by the next day. The court also
instructed the parties to explain any further requests to extend
the mediation deadline.
On June 16, the mediator filed a report explaining that while
Miller's attorneys had appeared, she did not, so the mediation
could not proceed. The next day, Midland filed a status report and
requested that the district court enter sanctions against Miller
for her failure to appear. Attorney Zemel also filed a status
report that day, noting that he did not know why Miller did not
appear at the mediation. He said that the last communication his
office had had with Miller was on June 14, when Miller confirmed
that she would be attending the mediation, and that despite his
attempts to reach her, he had not heard back from her.
On June 19, the district court entered an order to show cause why
Miller failed to appear at the mediation. In it, the court also
ordered Miller's counsel to "address whether they have regained
contact with their client," noting that "representation requires
communication." The court explained that while its order "may seem
harsh in isolation," there were many other examples of Miller's
"lack of diligence" in prosecuting the case. On June 22, Miller
responded to the order to show cause, noting that counsel had
regained contact with her. She explained that she did not attend
the mediation because she was relieved of duty from work three
hours late, and could not access her phone to inform her attorneys
of the unexpected issue.
On June 25, 2020, the district court imposed sanctions on Miller
and her attorneys. After discussing the reasons for the imposition
of sanctions against Miller (who does not join in the appeal), the
district court said that had it not entered the Order to Show
Cause, there is no indication that Miller or her counsel would have
made known to the Court the circumstances surrounding her failure
to appear. The counsel should have made a prompt and reasonable
investigation into Miller's failure to appear and immediately
informed the Court of the reasoning for the same. Counsel did not.
This led to the entry of the Order to Show Cause and it was only
then that Counsel investigated and discovered the circumstances
surrounding Miller's failure to appear.
The parties settled the lawsuit. However, Zemel and Giles requested
the court to reconsider its sanctions order. The motion detailed
counsel's efforts to reach Miller from June 16 to June 22, 2020.
The court denied the motion, finding that the "counsel did not
provide any new argument or evidence that would justify granting
the requested relief." This timely appeal followed.
Discussion
Reading the record as a whole, the Eleventh Circuit opines that it
appears that the parties believed that the district court was
considering imposing sanctions against Miller, but not against her
counsel. As a result, the Eleventh Circuit does not think that
Zemel and Giles were given a meaningful opportunity to respond to
that possibility. It expresses no view about whether the district
court should conduct further proceedings" "but if the district
court decides again to consider sanctions against Zemel and Giles,
it must, of course, afford them due process." As the Eleventh
Circuit sees it, the district court has not yet done so.
Moreover, if a district court decides to impose sanctions, a
finding of bad faith is required. A finding of bad faith is
warranted where a party delays or disrupts the litigation.
In the case, when addressing the attorneys in the sanctions order,
the district court said only that they "should have made a prompt
and reasonable investigation into Miller's failure to appear and
immediately informed the Court of the reasoning for the same," the
Eleventh Circuit finds. Importantly, however, the court did not
make the requisite finding of bad faith before imposing the
sanctions. Nor did it mention bad faith or cite the bad-faith
standard from the Supreme Court or the Eleventh Circuit.
The Eleventh Circuit recognizes that the court mentioned in the
show-cause order that the Plaintiff had been "far from diligent in
the litigation," perhaps attributing Miller's delays to her
attorneys. But neither the show-cause order nor the sanctions order
squarely placed the blame for these delays on the attorneys nor did
they tie them to a finding of bad faith. It's also worth noting
that, as best it can tell, the counsel did inform the district
court the day after Miller failed to attend the mediation that she
had not appeared; that the counsel did not know why Miller had not
appeared; and that the counsel had been unable to reach her despite
several attempts to inquire why.
On this record, the Eleventh Circuit cannot glean whether the
district court's outrage at Miller's attorneys stemmed from a
belief that the attorneys acted in bad faith, or whether it was due
to a belief that they acted negligently or without due diligence."
It may be that the district court's imposition of sanctions was
based on a finding of bad faith and was supported by the record. At
this time, however, the Eleventh Circuit cannot make this
determination.
Disposition
Accordingly, the Eleventh Circuit vacates the court's order
imposing sanctions and remands.
A full-text copy of the Court's Sept. 17, 2021 Opinion is available
at https://tinyurl.com/bedstucn from Leagle.com.
NATIONAL STUDENT: Final OK of Robinson's Class Settlement Affirmed
------------------------------------------------------------------
In the case, JAMES ROBINSON, on behalf of himself and all others
similarly situated, Plaintiff, Appellee v. NATIONAL STUDENT
CLEARINGHOUSE, Defendant, Appellee, PAUL CAMARENA, Objector,
Appellant, Case No. 20-1783 (1st Cir.), the U.S. Court of Appeals
for the First Circuit affirmed the district court's entry of the
Final Approval Order approving the class settlement.
Background
On April 18, 2019, Robinson filed a class action complaint on
behalf of himself and similarly situated consumers against National
Student Clearinghouse ("NSC") in the U.S. District Court for the
District of Massachusetts. Robinson alleged that NSC violated
federal and Massachusetts law by overcharging consumers for
self-verification reports of their university degrees and dates of
enrollment. NSC charged $14.95 for self-verification reports and
imposed an additional school surcharge for some consumers,
depending on their educational institution.
Robinson alleged in part that NSC is a consumer reporting agency
("CRA") subject to the Fair Credit Reporting Act ("FCRA") and that
NSC violated 15 U.S.C. Section 1681j(f) in charging him and other
consumers more than the maximum allowable disclosure charge for
their self-verification reports. The maximum allowable disclosure
charge was $12.00 from 2015 to 2018 and $12.50 from 2019 to 2020.
Robinson thus alleged that most consumers were overcharged by $2.95
or $2.45 per self-verification report.
On June 20, 2019, the parties filed a joint motion to stay
proceedings pending the parties' attempt to resolve their dispute
through mediation before the Honorable Diane M. Welsh (ret.). The
district court granted the motion on June 23, 2019. Before the
mediation, NSC provided informal discovery to the class counsel,
including the number of reports provided to class members and the
amounts charged for the self-verification reports. Through
mediation, the parties reached a settlement agreement that created
a $1.9 million settlement fund to support cash payments to class
members. Each class member would receive approximately $33.45 in
cash from the settlement fund. The class settlement also negotiated
prospective relief limiting NSC's charges moving forward and
provided each class member with one free self-verification report.
On Jan. 21, 2020, the district court granted Robinson's motion for
an order directing notice of the class action settlement. Notice
was provided to approximately 35,839 individuals, including
Camarena. On May 6, 2020, Paul Camarena, a class member, filed an
objection to the settlement agreement. He objected to the
representation by the class counsel, the content of the notice
provided to the class members, the sufficiency of the recovery for
the class members, and the attorneys' fees for the class counsel.
Camarena was the only class member to submit a timely objection,
and no class member opted out of the settlement.
On July 7, 2020, the district court held a fairness hearing. At the
fairness hearing, the district court heard Camarena's arguments and
overruled his objections. The next day, the district court entered
the Final Approval Order approving the class settlement.
On Aug. 7, 2020, Camarena filed a notice of appeal challenging the
district court's Final Approval Order.
Discussion
The First Circuit finds that the district court did not abuse its
discretion in approving the class settlement. The district court
considered relevant factors and concluded that the class action
settlement was "fair, reasonable, and adequate" under Rule
23(e)(2).
The district court considered that the settlement agreement was the
product of arm's-length negotiation between class counsel and NSC
in mediation before Judge Welsh. It stayed its proceedings pending
the parties' attempt to resolve their dispute through mediation.
Before the mediation, NSC provided disclosures to the class
counsel, including the number of class members and the total amount
of the alleged overcharge. The district court thus properly
concluded that "the parties negotiated at arm's length and
conducted sufficient discovery," the First Circuit holds.
The district court also considered the litigation risks and legal
uncertainty related to the litigation for both parties. Robinson's
class action complaint raised an issue of first impression about
whether an entity like NSC is a CRA regulated by the FCRA. The
parties also disputed whether NSC's self-verification reports
qualify as "consumer reports" under the FCRA. No court had yet
ruled on whether an entity like NSC is subject to regulation under
the FCRA. The Plaintiff class also encountered serious challenges
related to proving "willfulness," a prerequisite for an award of
statutory damages. Hence, the First Circuit finds that the district
court properly credited both parties' arguments that settlement was
preferable to continued litigation given the litigation risks for
both sides.
Mr. Camarena argues on appeal that the district court abused its
discretion by ignoring his request to submit evidence that he paid
more than $14.95 for his self-verification reports, the baseline
amount indicated by class counsel and NSC in the settlement
agreement. He argues that the district court could not have made an
informed decision that the class settlement was fair and reasonable
without considering evidence of his individual damages.
Mr. Camarena never made this objection or offer in his written
objections to the settlement agreement. Nor did he supply a
declaration with the evidence he wanted to provide. Camarena
instead requested to supplement the record with his individual
damages for the first time during the final fairness hearing. The
First Circuit holds that the district court did not abuse its
discretion in declining this request that was not briefed and was
raised for the first time in oral argument. It does not consider
this undeveloped claim that was made in passing to the district
court during oral argument.
As to Camarena's argument that the First Circuit should adopt the
position that the district court must act as a full fiduciary in
class actions, the argument too has been waived. Camarena did not
develop this argument before the district court, and no exceptional
circumstances warrant consideration of this argument for the first
time on appeal.
Disposition
Affirmed.
A full-text copy of the Court's Sept. 17, 2021 Order is available
at https://tinyurl.com/wtpy7tds from Leagle.com.
Anthony Francisco Cruz, with whom Paul Camarena and North &
Sedgwick L.L.C. were on brief, for the Appellant.
James A. Francis, with whom Stuart T. Rossman -- srossman@nclc.org
-- Persis S. Yu, National Consumer Law Center, and Francis Mailman
Soumilas, P.C., were on brief, for Appellee James Robinson.
Lisa M. Simonetti -- simonettil@gtlaw.com -- with whom David G.
Thomas -- thomasda@gtlaw.com -- and Greenberg Traurig, LLP, were on
brief, for Appellee National Student Clearinghouse.
NEVADA: Supreme Orders on Payne's Writ Petition Affirmed in Part
----------------------------------------------------------------
The Supreme Court of Nevada affirmed in part and vacated in part
the district court orders resolving a petition for writ of mandamus
in the lawsuit titled AMETHYST PAYNE; IRIS PODESTAMIRELES; ANTHONY
NAPOLITANO; ISAIAH PAVIA-CRUZ; VICTORIA WAKED; CHARLES PLOSKI;
DARIUSH NAIMI; TABITHA ASARE; SCOTT HOWARD; RALPH WYNCOOP; ELAINA
ABING; AND WILLIAM TURNLEY, ON BEHALF OF THEMSELVES AND ALL OTHERS
SIMILARLY SITUATED, Appellants/Cross-Respondents v. STATE OF
NEVADA, DEPARTMENT OF EMPLOYMENT, TRAINING AND REHABILITATION
(DETR); HEATHER KORBULIC, IN HER OFFICIAL CAPACITY AS NEVADA
DIRECTOR OF EMPLOYMENT, TRAINING, AND REHABILITATION; DENNIS PEREA,
IN HIS OFFICIAL CAPACITY AS DEPUTY DIRECTOR OF DETR; AND KIMBERLY
GAA, IN HER OFFICIAL CAPACITY AS THE ADMINISTRATOR FOR THE
EMPLOYMENT SECURITY DIVISION (ESD), Respondents/Cross-Appellants,
Case No. 81763 (Nev.).
The matter is an appeal and cross-appeal arising from district
court orders resolving a petition for writ of mandamus. Second
Judicial District Court, Washoe County; Barry L. Breslow, Judge.
Each named Appellant--Amethyst Payne, Iris Podesta-Mireles, Anthony
Napolitano, Isaiah Pavia-Cruz, Victoria Waked, Charles Ploski,
Dariush Naimi, Tabitha Asare, Scott Howard, Ralph Wyncoop, Elaina
Abing, and William Turnley--is or was a worker in Nevada's "gig"
economy, the market for short-term contract or freelance jobs. The
Appellants all lost work or saw their income reduced due to the
effects of the COVID-19 public health emergency. Each, therefore,
applied, via the Respondent Department of Employment, Training, and
Rehabilitation's (DETR) website, for Pandemic Unemployment
Assistance (PUA) benefits as authorized by the federal Coronavirus
Aid, Relief, and Economic Security Act (CARES Act).
The Appellants were "first filers," meaning they applied for PUA
benefits relatively early on in DETR's implementation of the
program, when claim numbers were skyrocketing and DETR's website
was in its pilot stage (a period described by a DETR representative
as "trying to fly a plane while you're building it at the same
time"). Due to an unexplained system glitch, DETR's fledgling
website flagged the Appellants' applications as potentially
fraudulent or ineligible, and delayed disbursement of their
benefits. The Appellants' attempts to resolve the technical issue
directly with DETR either went unanswered or resulted in
inconsistent information from call-center contract workers.
Frustrated, the Appellants retained counsel, who filed a combined
petition for a writ of mandamus and complaint for civil damages on
their collective behalf in district court. Although the Appellants
styled their case caption as a class action, they neither moved for
nor received class certification.
Primarily, the petition/complaint asked the district judge to
mandate that DETR begin paying PUA benefits to claimants on their
prima facie showing of a legitimate claim, and resolve potential
issues of fraud or ineligibility after the fact. The district judge
appointed a special master to help navigate the complex questions
surrounding PUA eligibility, the prevalence of fraud within the
program, and the sufficiency of DETR's system for automated
claims.
Following the special master's submission of an extensive report,
as well as a hearing where the special master testified to the
same, the district judge denied the Appellants' petition to the
extent that the Appellants sought an order mandating DETR's
immediate payment of PUA funds upon application, prior to
determining eligibility. But the district judge did not stop there.
Despite denying the mandamus relief that the Appellants requested,
he granted mandamus to the extent of requiring DETR to keep paying
all PUA benefit recipients prior to and absent any hearing to
terminate benefits. The Appellants' related claims for civil
damages were left unresolved.
The Appellants and the Respondents appealed and cross-appealed the
order of mandate, and a panel of the Supreme Court Court dismissed
for lack of jurisdiction, Payne v. State, Dep't of Emp't, Training
& Rehabilitation, Docket No. 81582 (Order Dismissing Appeal and
Cross-Appeal, Aug. 26, 2020) (concluding that the district court's
order was not final because the civil claims were unresolved).
Back in the district court, the district judge entered an order
purporting to sever the mandamus claims from the complaint for
damages, and certifying the mandamus order as final under NRCP
54(b). This appeal and cross-appeal of the certified mandamus order
followed. On appeal, the Appellants challenge the district court's
denial of their request for a writ of mandamus requiring DETR to
begin payment of PUA benefits to all claimants immediately on a
"prima facie" showing of a legitimate claim (that is, the
Applicant's filing of a self-attesting application) and resolve
potential issues of fraud or ineligibility after the fact. DETR's
cross-appeal asks the Supreme Court to vacate the order of mandate
prohibiting DETR's termination of benefits without a hearing.
The Supreme Court affirms the district court's denial of the
Appellants' request for a writ of mandamus directing DETR to
process and pay their claims. By the time of the hearing on the
petition/complaint, DETR had processed each of the Appellants'
applications, and paid benefits to all but one of them; as to the
Appellant whose claim DETR denied, the denial appears to have been
on the merits, for disqualifying excess earnings.
Because DETR had processed, and either paid or denied on the
merits, the Appellants' claims before the hearing occurred, the
district court correctly denied their mandamus request: granting
the writ would not benefit them and its denial would not work to
their detriment, the Supreme Court holds. The class action
allegations in the complaint do not affect this conclusion--the
Appellants neither sought nor received class certification in
district court and made no argument until their reply brief on
appeal that, as individuals, they should be allowed to assert the
rights of third parties.
The Appellants likewise did not argue in their opening brief on
appeal that DETR processed and began paying their claims in order
to avoid having the district court decide their mandamus, so the
Supreme Court does not consider whether, if shown, this would save
their claims from mootness. Nor does the argument that the
Appellants raise in their reply--that the claims are capable of
repetition but evading review--carry. True, the Supreme Court has
recognized that potential future third-party injuries may be taken
into account in applying this exception, but only where those other
third parties are similarly situated to the complainants.
Here, it is not clear that any of the hundreds of thousands of
other real people the Appellants imagine might be injured in the
future by DETR would be similarly situated to them, the Supreme
Court holds.
Turning to the part of the district court's order mandating that
DETR always hold a hearing before terminating any PUA payments once
begun, whatever the reason for the termination, the Supreme Court
vacates and remands. As an initial matter, this categorical mandate
is directly contrary to guidance issued from the United States
Department of Labor implementing the CARES Act program, which
provides that no pretermination hearing is required when, for
instance, there is no essential disagreement on eligibility, a
point the Appellants themselves concede.
As the Attorney General stated and the district court recognized,
the stopped-payments issue that the order of mandamus addressed was
not something that was specific to the named plaintiffs; that is,
the Appellants did not allege that DETR had wrongfully terminated
their own payments. Instead, the district court's order of mandamus
purported to remedy allegations made in emails from various unnamed
third parties, which emails the Appellants included in their
petition record.
For these reasons, the district court's issuance of writ relief
categorically requiring a hearing before cessation of benefits was
in error--again, the Appellants could only represent their own
interests, the Supreme Court holds. Without a showing of a
threatened or actual clear violation of duty by DETR to the
Appellants as opposed to third parties, the broad mandamus granted
by the district court respecting the procedures by which
termination of benefits must proceed is improper and must be
vacated by the Supreme Court.
The Supreme Court states that it sympathizes with the
Appellants--the economic circumstances that the COVID-19 global
pandemic thrust upon residents of this state were dire; the relief
offered by PUA benefits of urgent necessity. The respective
declarations of the individual Appellants demonstrate their
increasing desperation in the face of DETR's website's "glitches"
and DETR's call-center contractors' inadequate responses thereto.
But, however justified and relatable the Appellants' frustrations
may be, for the reasons stated, the Supreme Court must affirm the
district court's denial of mandamus as to the named Appellants, and
vacate the grant of mandamus purporting to direct DETR's practices
more broadly as to third parties.
Without expressing any opinion on the remaining claims in this or
the severed case, the Supreme Court, therefore, orders the judgment
of the district court denying in part and granting in part the
Appellants' petition for a writ of mandamus affirmed in part and
vacated in part and remands this matter to the district court for
proceedings consistent with the Order.
A full-text copy of the Court's Order dated Sept. 13, 2021, is
available at https://tinyurl.com/8eecp4w5 from Leagle.com.
NEW YORK TIMES: Class Settlement in Moses Suit Wins Final Approval
------------------------------------------------------------------
The U.S. District Court for the Southern District of New York
issued a final approval order and judgment approving the parties'
settlement agreement in the lawsuit captioned MARIBEL MOSES, on
behalf of herself and all others similarly situated, Plaintiff v.
THE NEW YORK TIMES COMPANY, d/b/a The New York Times, Defendant,
Case No. 1:20-cv-04658-RA (S.D.N.Y.).
On May 12, 2021, the Court granted preliminary approval of the
proposed class action settlement agreement between the parties.
The Court also provisionally certified a Settlement Class for
settlement purposes, approved the procedure for giving notice and
forms of Notice, and set a final approval hearing to take place on
Sept. 10, 2021.
The Settlement Class is defined as: "All Persons who, from June 17,
2016, to and through the Preliminary Approval Date, enrolled in an
automatically renewing NYT Subscription directly through NYT using
a California billing and/or delivery address, and who were charged
and paid an automatic renewal fee(s) in connection with such
subscription. Excluded from this definition are the Released
Parties."
Settlement Class Members, who exclude themselves from the
Settlement, pursuant to the procedures set forth in Paragraph 4.5
of the Settlement, will no longer thereafter be Settlement Class
Members and will not be bound by the Settlement and will not be
eligible to make a claim for any benefit under the terms of the
Settlement.
On Sept. 10, 2021, the Court held a duly noticed final approval
hearing to consider: (1) whether the terms and conditions of the
Settlement are fair, reasonable and adequate; (2) whether a
judgment should be entered dismissing the complaint on the merits
and with prejudice in favor of the Defendant and against all
persons or entities who are Settlement Class members herein who
have not requested exclusion from the Settlement Class; and (3)
whether and in what amount to award attorneys' fees, costs and
expenses to Class Counsel and whether and in what amount to make an
incentive award to Plaintiff Maribel Moses.
The Court finds that the prerequisites for a settlement class under
Federal Rules of Civil Procedure 23(a) and (b)(3) have been
satisfied, for purposes of settlement only. The Court also finds
that the requirements of Rule 23(e) and other laws and rules
applicable to final settlement approval of class actions have been
satisfied, and the Court approves the settlement of this Action as
memorialized in the Settlement Agreement as being fair, just
reasonable and adequate to the Settlement Class and its members.
The Court further finds that the Settlement Agreement substantially
fulfills the purposes and objectives of the class action, and
provides substantial relief to the Settlement Class without the
risks, burdens, costs or delays associated with continued
litigation, trial and/or appeal. The Settlement is not a finding or
admission of liability by the Defendant or any other person, nor a
finding of the validity of any claims asserted in the Action or of
any wrongdoing or any violation of law.
Pursuant to Rule 23, the Court finally certifies the action, for
purposes of settlement, a class action on behalf of all Persons
who, from June 17, 2016, to and through the Preliminary Approval
Date, enrolled in an automatically renewing NYT Subscription
directly through NYT using a California billing and/or delivery
address, and who were charged and paid an automatic renewal fee(s)
in connection with such subscription.
The Court appoints Frederick J. Klorczyk III of Bursor & Fisher,
P.A., as Class Counsel for the Settlement Class. The Court
designates Plaintiff Maribel Moses as the Class Representative.
Notice of the pendency of the action as a class action and of the
proposed settlement was given to Settlement Class Members in a
manner reasonably calculated to provide the best notice practicable
under the circumstances. The form and method of notifying the
Settlement Class of the pendency of the Action as a class action
and of the terms and conditions of the proposed Settlement met the
requirements of Rule 23, due process, and any other applicable law,
and constituted due and sufficient notice to all persons and
entities entitled thereto. In addition, the Court finds that the
Defendant fully satisfied any obligation to provide Notice of the
proposed Settlement Agreement to the public officials designated
under the Class Action Fairness Act to receive such notice, as set
forth in the Defendant's Notice of Compliance with 28 U.S.C.
Section 1715.
The Court has considered and finds Class Counsel and the Class
Representative have adequately represented the Class. The Court
finds that the Settlement Agreement was reached in the absence of
collusion, is the product of informed, good-faith, arms-length
negotiations between the parties and their capable and experienced
counsel.
The Court has evaluated this overall reaction of the Class to the
Settlement, and finds that the overall acceptance of the Settlement
Agreement by Settlement Class Members supports the Court's
conclusion that the Settlement Agreement is in all respects fair,
reasonable, adequate, and in the best interests of the Class.
The Parties are directed to consummate the Settlement Agreement in
accordance with its terms and conditions.
The Defendant will implement the Prospective Relief - Practice
Changes described in Paragraph 2.3 of the Settlement Agreement
within a reasonably practicable time from the date of this order.
JND is finally appointed to continue to serve as the Claims
Administrator as provided in the Settlement Agreement. The Claims
Administrator is directed to process all Authorized Claims in
accordance with the Settlement Agreement. Class Counsel and Counsel
for Defendant are hereby authorized to employ all reasonable
procedures in connection with administration of the Settlement
Agreement that are not materially inconsistent with this Order or
the Settlement Agreement.
The Claims Administrator will administer the Escrow Account, which
is a Qualified Settlement Fund within the meaning of Treasury
Regulation Section 1.468B-1. The Claims Administrator, as
administrator of the fund within the meaning of Treasury Regulation
Section 1.468B-2(k)(3), will be solely responsible for filing or
causing to be filed all informational and other tax returns as may
be necessary or appropriate (including, without limitation, the
returns described in Treasury Regulation Section 1.468B-2(k)) for
the Escrow Account. The Claims Administrator will also be
responsible for causing payment to be made from the Escrow Account
of any Taxes and Tax Expenses owed.
Pursuant to Rule 23(h), the Court awards Class Counsel attorneys'
fees, costs, and expenses in the amount of $1.25 million. The Court
also orders payment of an incentive award in the amount of $5,000
to Plaintiff Maribel Moses.
The Action is hereby dismissed with prejudice and without costs as
against the Defendant and the Released Parties.
District Judge Ronnie Abrams notes that this Settlement Approval
Order and Final Judgment constitutes a judgment within the meaning
and for purposes of Rule 54 of the Federal Rules of Civil
Procedure. Without affecting the finality of the Settlement
Approval Order and Final Judgment in any way, this Court retains
continuing jurisdiction over: (a) the disposition of the settlement
benefits; (b) the settling parties for purposes of construing,
enforcing and administering the Settlement Agreement; and (c)
enforcement of the Stipulation and Order Regarding Undertaking Re:
Attorneys' Fees and Costs.
In the event that the Final Settlement Approval Date does not
occur, this Settlement Approval Order and Final Judgment will
automatically be rendered null and void and will be vacated and, in
such event, all orders entered in connection therewith, except the
void.
A full-text copy of the Court's Final Approval Order and Judgment
dated Sept. 13, 2021, is available at https://tinyurl.com/vkkbsnzc
from Leagle.com.
NEWCOMB OIL: Southard FLSA Suit Removed to W.D. Kentucky
--------------------------------------------------------
The case styled MICHAEL SOUTHARD, individually and on behalf of all
others similarly situated v. NEWCOMB OIL CO., LLC, d/b/a NEWCOMB
OIL CO., Case No. 18-CI-006503, was removed from the Jefferson
Circuit Court, Commonwealth of Kentucky, to the U.S. District Court
for the Western District of Kentucky on September 27, 2021.
The Clerk of Court for the Western District of Kentucky assigned
Case No. 3:21-cv-00607-DJH to the proceeding.
The case arises from the Defendant's alleged failure to pay
overtime wages in violation of the Fair Labor Standards Act.
Newcomb Oil Co., LLC, doing business as Newcomb Oil Co., is a
company that provides petroleum products, headquartered in
Kentucky. [BN]
The Defendant is represented by:
John O. Sheller, Esq.
Jeffrey A. Calabrese, Esq.
Steven T. Clark, Esq.
STOLL KEENON OGDEN PLLC
2000 PNC Plaza
500 West Jefferson Street
Louisville, KY 40202
Telephone: (502) 333-6000
E-mail: john.sheller@skofirm.com
jeff.calabrese@skofirm.com
steven.clark@skofirm.com
OHIO: 6th Cir. Affirms Dismissal of Palladeno v. Prison Officials
-----------------------------------------------------------------
The United States Court of Appeals for the Sixth Circuit affirms
the dismissal of the Plaintiff's claims in the lawsuit entitled TED
PALLADENO, Plaintiff-Appellant v. GARY C. MOHR; ROGER WILSON;
ROBERT HAMMOND; JOHN DESMARAIS; BRIAN WITTRUP; CYNTHIA B. MAUSSER;
GINNY LAMNECK; KIMBERLY CLIPPER; KEVIN JONES; DONALD MORGAN; WARDEN
JOHN COLEMAN; TERRY COLLINS; JOHN DOE 1-99, Defendants-Appellees,
STATE OF OHIO, Interested Party-Appellee, Case No. 20-3587 (6th
Cir.).
Plaintiff Ted Palladeno is a prisoner in the custody of the Ohio
Department of Rehabilitation and Correction (ODRC). He filed an
85-count suit against several named Ohio prison officials and 99
"John Doe" Defendants. The district court dismissed the suit on its
pleadings and two of his claims are before the Sixth Circuit on
appeal: (1) deliberate indifference to a serious medical need under
the Eighth Amendment and (2) violation of Title II of the Americans
with Disabilities Act, 42 U.S.C. Section 12132.
Background
The Plaintiff has been incarcerated in various Ohio Department of
Rehabilitation and Correction ("ODRC") facilities, and during the
periods relevant to this litigation he was held in protective
custody.
In November 2016, the Plaintiff filed a pro se complaint in the
Southern District of Ohio, along with motions (1) to proceed in
forma pauperis, (2) to appoint counsel, (3) to certify the case as
a class action, (4) for a preliminary injunction, (5) for prisoner
release orders, and (6) to seal portions of the complaint. The
court granted in forma pauperis status and the motion to seal,
denied all other motions, and directed the Plaintiff to file an
amended complaint because a prisoner proceeding pro se cannot
represent other prisoners in a federal class action.
The Plaintiff obtained counsel and filed a nearly identical amended
complaint, still in the form of a class action with more than 100
class representatives. The case was eventually transferred to the
Northern District of Ohio because the Plaintiff was an inmate at a
federal facility in Toledo.
The district court granted a motion to dismiss all claims, which
was filed by the State of Ohio as an interested party. Because the
alleged injuries were a series of individual claims, rather than
claims common to the named plaintiffs, the court dismissed 81 of
the 85 counts due to misjoinder under Fed. R. Civ. P. 20 & 21. The
court dismissed the remaining four claims, which were personal to
the Plaintiff, for failure to state a claim.
The Plaintiff appeals the dismissal of two of those four claims:
(1) deliberate indifference to a serious medical need in violation
of the Eighth Amendment and (2) violation of Title II of the
Americans with Disabilities Act, 42 U.S.C. Section 12132.
The Plaintiff's claim of deliberate indifference to his serious
medical need arises out of his time at Toledo Correctional
Institution ("ToCI"). In support of that claim, the Plaintiff
alleges in the amended complaint that he has consistently been told
by specialists outside of the ODRC that he must be provided a
walking cane, the medications Nuerontin and Tramadol, as was the
recommendation in a teleconference with an Ohio State University
Neurologist on July 15, 2015. He suffers from Neuropathy, a
condition affecting his L4 and L5 vertebrae, as well as his S1
nerve (all in his lower back area).
The ODRC has treated his condition (on and off) for years, however
ToCI refuses to provide the treatment recommended by the OSU
Neurologist, which is (in general) the same treatment
intermittently provided by the ODRC over the years. Without
treatment, Palladeno's legs will periodically (and without warning)
go numb and fail to support him. He has suffered very serious
injuries on several occasions due to falls occurring as a direct
and proximate result of the ODRC's failure to provide treatment for
his serious medical need. The most recent fall was down a 16-riser
metal tread stair on Feb. 1, 2016. After several MRI's and a Cat
scan, St. Vincent's treated Palladeno by providing a cane, and the
medication Lyrica. Upon returning to ToCI, both the medication and
the use of the cane were discontinued.
The Plaintiff's ADA claim also relates to his back condition but
arises from his time at Oakwood Correctional Facility.
Claim Under the Eighth Amendment
The Eighth Amendment forbids prison officials from unnecessarily
and wantonly inflicting pain on an inmate by acting with deliberate
indifference toward an inmate's serious medical needs (Reilly v.
Vadlamudi, 680 F.3d 617, 623 (6th Cir. 2012)).
Like the district court, the Court of Appeals accepts that the
Plaintiff has satisfied the first prong--that the Plaintiff has a
serious medical need. But the complaint fails to make an allegation
against any Defendant, either named or a John Doe, who acted with
deliberate indifference in withholding treatment, says Circuit
Judge Alan E. Norris, writing for the Panel. In fact the complaint
never alleges any wrongful conduct by anyone that is causally
connected to the violation alleged.
Instead the Plaintiff concedes in the complaint that the treatment
of his neuropathy has been on-again, off-again, and it speaks of
institutions and otherwise alleges facts in the passive voice.
Though it draws all reasonable inferences in favor of the
Plaintiff, the Court of Appeals says it cannot fill gaps of this
size.
The complaint was not clear, but if the Plaintiff intended to
allege that one of the named Defendants was responsible in a
supervisory capacity, the complaint needed to set forth facts
alleging "that the official at least implicitly authorized,
approved, or knowingly acquiesced in the unconstitutional conduct
of the offending officers," Judge Norris notes.
Judge Norris points out that the district court did not err in
concluding that the Plaintiff failed to state a claim under the
Eighth Amendment.
Claim Under the Americans with Disabilities Act
Title II of the ADA provides that no qualified individual with a
disability will, because of that disability, be denied the benefits
of the services, programs, or activities of a public entity, or be
subjected to discrimination by any such entity. The ADA also
applies to state prisons.
To establish a claim for intentional discrimination, a plaintiff
must show that he or she: (1) is an otherwise qualified individual
with a disability; (2) was excluded from participation in a public
entity's services, programs, or activities; and (3) such exclusion
was due to the disability (Anderson v. City of Blue Ash, 798 F.3d
338, 357 (6th Cir. 2015)).
Two types of claims are cognizable under Title II: claims for
intentional discrimination and claims for a reasonable
accommodation. Judge Norris finds that it is not clear from the
complaint which type the Plaintiff alleges. On appeal, the
Plaintiff asserts that the complaint alleges facts sufficient for
both types. The Court of Appeals disagrees.
Though the state argues otherwise, the Court of Appeals assumes for
the sake of argument that the Plaintiff has a disability and was
excluded from certain services. However, for intentional
discrimination, the third prong requires a plaintiff to show that
"the discrimination was intentionally directed toward him or her in
particular." All of the PC units were located on the second floor
of the Oakwood facility.
The Plaintiff did not allege that he requested to be housed on the
first floor and was refused, nor any other facts to support an
allegation that the Plaintiff was singled out for discrimination on
account of his disability, Judge Norris holds. The Judge points out
that the failure of prison officials to transfer him sua sponte
during elevator maintenance that affected all inmates does not
amount to intentional discrimination solely because of his
disability.
Judge Norris also holds, among other things, that the Plaintiff
cannot establish any claim for monetary relief because he fails to
allege he suffered actual harm; instead, he alleges only that the
potential for harm existed.
The district court, therefore, did not err in concluding that the
Plaintiff failed to state a claim under the ADA, Judge Norris
finds.
Accordingly, the Court of Appeals affirms the judgment of the
district court.
A full-text copy of the Court's Opinion dated Sept. 13, 2021, is
available at https://tinyurl.com/hn9e47ms from Leagle.com.
OLD DOMINION: Bowens NYLL Suit Removed to S.D. New York
-------------------------------------------------------
The case styled SAMUEL BOWENS, individually and on behalf of all
others similarly situated v. OLD DOMINION FREIGHT LINES, INC., Case
No. EF003199-2021, was removed from the Supreme Court of the State
of New York, County of Orange, to the U.S. District Court for the
Southern District of New York on September 28, 2021.
The Clerk of Court for the Southern District of New York assigned
Case No. 7:21-cv-08040 to the proceeding.
The case arises from the Defendant's alleged failure to pay for
work during meal breaks and failure to pay overtime for all hours
worked in excess of 40 hours in a workweek in violation of the New
York Labor Law.
Old Dominion Freight Lines, Inc. is a less than load (LTL) trucking
company, headquartered in North Carolina. [BN]
The Defendant is represented by:
Brett C. Bartlett, Esq.
SEYFARTH SHAW LLP
1075 Peachtree Street, N.E., Suite 2500
Atlanta, GA 30309-3958
Telephone: (404) 885-1500
Facsimile: (404) 892-7056
E-mail: bbartlett@seyfarth.com
OSHKOSH CORP: Jackson Lewis Attorneys Discuss Court Ruling
----------------------------------------------------------
Charles F. Seemann III, Esq., and Blaine A. Veldhuis, Esq., of
Jackson Lewis P.C., in an article for The National Law Review,
report that recently, the United States District Court for the
Eastern District of Wisconsin granted a Motion to Dismiss,
dismissing ERISA breach of fiduciary duty claims, failure to
monitor claims, and prohibited transaction claims in a putative
class action involving Oshkosh Corporation's 401(k) Plan. The
plaintiff supported those claims with allegations of excessive
recordkeeping fees, excessive share class fees, imprudent high-cost
fund options, failure to fully disclose plan fees, and excessive
provider fees. The district court relied heavily on Seventh Circuit
precedent to dismiss the complaint, with prejudice, holding that it
was not possible to plausibly infer violations of ERISA's duties,
under Federal Rule of Civil Procedure 12(b)(6).
Plaintiff alleged that, between 2014 and 2018, the Plan on average
paid $87 per participant in recordkeeping fees which reflected a
lack of prudence and poor management of the Plan. Throughout
Plaintiff's complaint, he compared the Plan's average annual
recordkeeping fee and other investment and service fees to plans
for which Plaintiff alleged were of similar size and with similar
amounts of money under management. Specifically, Plaintiff alleged
Defendants should have paid around $40 per participant in
recordkeeping fees. The Court dismissed the recordkeeping fee claim
because "Plaintiff fail[ed] to state why the fee is unreasonable."
Moreover, the Court stated, "[t]he mere existence of purportedly
lower fees paid by other plans says nothing about the
reasonableness of the Plan's fee, and it does not make it plausible
that another recordkeeper would have offered to provide the Plan
with services at a lower cost."
Plaintiff further alleged that Defendants breached their fiduciary
duties when they did not retain the share class for each fund that
gives plan participants access to portfolio managers at the "lowest
net fee." Although the court acknowledged that the "net investment
expense" theory is a "novel concept," the court reasoned that
Plaintiff's claims were tantamount to an argument that Defendants
were imprudent simply because they did not retain the least costly
share class, a claim which the Seventh Circuit had previously
rejected in another case.
Next, Plaintiff alleged that Defendants breached their fiduciary
duties by retaining higher-cost actively managed investments over
the less-expensive passively managed investments. Again relying on
Seventh Circuit precedent, the court dismissed the claim when
Plaintiff conceded he had no knowledge of Defendants' investment
selection and monitoring process and thus the court was not
required to accept "unsupported conclusory factual allegations,"
especially in light of the precedent that "plans may generally
offer a wide range of investment options and fees without breaching
any fiduciary duty."
The Court quickly shot down Plaintiff's claims that Defendants
failed to fully disclose fees charged or credited to the Plan
investments because Seventh Circuit precedent does not require a
plan fiduciary to disclose information about revenue-sharing
arrangements.
In addition, Plaintiff claimed that the fees paid by the Plan to
its service provider were excessive and unreasonable in relation to
the services provided and that Defendants did not solicit
competitive bids from other service providers. The court dismissed
the claim, holding that the existence of a lower-cost alternative
service provider "says nothing" about Defendants' prudence and does
not make it plausible that another service provider would offer the
same service at a lower cost.
The failure to monitor claims were summarily dismissed as
derivative and dependent upon Plaintiff's breach of fiduciary duty
claims, which had already been dismissed. The court also dismissed
Plaintiff's prohibited transaction claims as "circular" and cited
other district courts that dismissed similar claims.
The case is Albert v. Oshkosh Corporation, No. 1:20-cv-00901-WCG
(E.D. Wis. Sep. 2, 2021). [GN]
OVERSTOCK.COM INC: Averts Securities Class Action Lawsuit
---------------------------------------------------------
Christina Tabacco, writing for LawStreet, reports that according to
an opinion issued on Sept. 20, Overstock.com Inc. has beat
allegations that it misled investors about a digital dividend it
issued and financial forecasts it broadcasted publicly in 2019. The
District of Utah court overseeing the suit dismissed the case with
prejudice, despite added allegations from confidential witnesses,
finding that the amended filing failed to meet the heightened
pleading standard applicable to securities fraud claims.
The opinion explained that lead plaintiff The Mangrove Partners
Master Fund Ltd. filed the class action against the e-commerce home
furnishings retailer in September 2019, and named former officers,
including CEO Patrick Byrne as defendants in the proceeding. In
September 2020, the court dismissed the first complaint but
permitted the investor to file an amended pleading.
The opinion considered whether the revised complaint stated
plausible claims under the heightened standard. Specifically, Judge
Dale A. Kimball examined whether the defendants made a false or
misleading statement about company information, including
Overstock's historical insurance costs, the digital dividend, its
"retail guidance," and search engine optimization (SEO) results.
The court focused on refreshed allegations concerning retail
guidance, and whether any new information provided by a
confidential witness removed the retail guidance claim from the
safe harbor provision of the Private Securities Litigation Reform
Act of 1995 (PSLRA). It did not, the court ruled, because nothing
attributed to the witness suggested that any officer "gave guidance
that he knew was impossible for Overstock to meet."
As to SEO, Judge Kimball ruled in part that two confidential
witnesses' claims contradicted one another, and therefore fell
short of alleging fraud. The amended complaint "contains no
well-pled facts that are inconsistent with Byrne's statements
regarding SEO," the court wrote.
The court dismissed the plaintiff's second count, after finding
that the investor failed to add allegations indicating that the
dividend or related disclosures were deceptive. "Plaintiff simply
adds an array of conclusory adverbs to the prior allegations
relating to the dividend, claiming it was designed 'exclusively' or
'entirely' to harm short sellers by causing a short squeeze," the
opinion said.
In addition to dismissing the claims against the individual
defendants, the ruling also found the first two counts insufficient
because the plaintiff failed to plead that it relied on any
challenged statement or actions in purchasing Overstock shares.
Judge Kimball concluded by denying leave to amend, finding that
given the heightened pleading standard, and the previous
opportunity, amendment would be futile.
The plaintiff is represented by Clyde, Snow & Sessions P.C. and
Cohen Milstein Sellers & Toll PLLC, and Overstock by Parsons Behle
& Latimer and Cooley LLP. [GN]
PENNYMAC FINANCIAL: Heidrich Allowed to File 2nd Amended Complaint
------------------------------------------------------------------
In the lawsuit captioned ERICH HEIDRICH, et al., Plaintiffs v.
PENNYMAC FINANCIAL SERVICES, INC., et al., Defendants, Case No.
2:16-cv-02821-TLN-JDP (E.D. Cal.), the U.S. District Court for the
Eastern District of California:
-- grants the Motion for Leave to File a Second Amended
Complaint filed by Plaintiffs Erich Heidrich, Eric Kidd,
Maria Angelica Castro and Justin Roberson; and
-- denies as moot the Plaintiffs' Motion to Toll the Statute
of Limitations for Claims under the Fair Labor Standards
Act ("FLSA").
The Plaintiffs bring wage and hour claims against the Defendants as
a putative class action. The Court previously granted the
Defendants' motion to dismiss and compelled arbitration of the only
federal claim (brought under the FLSA), declined to exercise
supplemental jurisdiction over the remaining state law claims, and
dismissed the action. The Court also denied the Plaintiffs' motion
to toll the statute of limitations for the FLSA claim as moot. The
Plaintiffs appealed.
In reversing this Court's decision to compel arbitration and
dismiss the action, the Ninth Circuit concluded it was bound by an
intervening decision of the California Court of Appeal holding that
PennyMac's arbitration agreement was unenforceable.
After receiving the Ninth Circuit's mandate, the Court reinstated
the Plaintiffs' motion to toll the statute of limitations for the
FLSA claim. The Court did not reinstate the Defendants' motion to
dismiss. The Defendants filed a request for the Court to decide
unresolved issues from the motion to dismiss that were not affected
by the Ninth Circuit's mandate.
Less than a month later, the Plaintiffs filed the instant motion
for leave to amend. Because the Court intends to grant the
Plaintiffs' motion for leave to amend, the Court need not and does
not address the Plaintiffs' motion to toll the statute of
limitations or the unresolved issues from the Defendants' motion to
dismiss.
Analysis
The Plaintiffs seek leave to add allegations about steps they have
taken to exhaust administrative remedies as required by California
Labor Code's Private Attorneys General Act ("PAGA"). The Plaintiffs
argue the Rule 15 factors weigh in favor of granting leave to amend
because the Plaintiffs are not acting in bad faith, there is no
undue delay, this is the Plaintiffs' first motion to amend, the
Defendants will not be prejudiced by the amendment, and amendment
is not futile.
In opposition, the Defendants raise various arguments--primarily
about deficiencies with the Plaintiffs' FLSA claim, which is not at
issue in the instant motion. The only Rule 15 factor the Defendants
address is futility.
District Judge Troy L. Nunley notes that the Plaintiffs seem to
concede they did not adequately plead exhaustion of certain claims
in the operative First Amended Complaint ("FAC"). However, they
argue they exhausted their administrative remedies by filing a PAGA
letter with the Labor and Workforce Development Agency ("LWDA")
years before filing the FAC and any deficiencies in exhaustion will
be cured by the Second Amended Complaint ("SAC").
As the Plaintiffs correctly point out, other courts in this
district have held that a subsequent amendment may cure the
premature filing of a PAGA claim. Judge Nunley holds that the
Defendants fail to distinguish cases or otherwise convince the
Court that no set of facts can be proved under the amendment to the
pleadings that would constitute a valid and sufficient claim. As
such, the Court finds this factor weighs in favor of granting leave
to amend.
The Defendants raise no arguments as to the remaining Rule 15
factors. In the absence of any argument to the contrary, the Court
concludes there is no evidence of bad faith, undue delay, or
prejudice to the Defendants. Lastly, it is Plaintiffs' first motion
for leave to amend. Therefore, the Court finds all the remaining
Rule 15 factors weigh in favor of granting leave to amend.
Accordingly, the Court grants the Plaintiffs' motion to amend. To
the extent the Defendants wish to raise unresolved issues from
their previous motion to dismiss, they may do so in a future
motion. Further, because the Plaintiffs' motion to toll the statute
of limitations corresponds with the FLSA claim in the FAC--and the
issue depends on the Court finding a viable FLSA claim and would
arguably benefit from updated briefing as the motion has been
pending since 2018--the Plaintiffs may refile the motion after
filing the SAC.
Conclusion
For these reasons, the Court grants the Plaintiffs' Motion to Amend
and denies the Plaintiffs' Motion to Toll the Statute of
Limitations as moot. The Plaintiffs may file the amended pleading
not later than 30 days from the electronic filing date of this
Order. The Defendants will file a responsive pleading not later
than 21 days after the electronic filing date of the Plaintiff's
Second Amended Complaint.
A full-text copy of the Court's Order dated Sept. 13, 2021, is
available at https://tinyurl.com/48kbvb7k from Leagle.com.
RED ROBIN: Court Denies Geraci's Bid to Intervene in Mina TCPA Suit
-------------------------------------------------------------------
In the case, MARK MINA, as an individual and on behalf of all
others similarly situated, Plaintiff v. RED ROBIN INTERNATIONAL,
INC., and RED ROBIN GOURMET BURGERS INC., Defendants, Civil Action
No. 20-cv-00612-RM-NYW (D. Colo.), Judge Raymond P. Moore of the
U.S. District Court for the District of Colorado denies as moot
Proposed Intervenor John Geraci's Motion to Intervene.
The putative class action brought under the Telephone Consumer
Protection Act is before the Court on the Recommendation of United
States Magistrate Judge Nina Y. Wan to deny as moot Proposed
Intervenor John Geraci's Motion to Intervene. No objection to the
Recommendation has been filed, and the time to do so has expired.
Judge Moore accepts the Recommendation, which is incorporated into
his Order by reference. He explains that in the absence of timely
objection, the district court may review a magistrate's report
under any standard it deems appropriate." As discussed in greater
detail in the Recommendation, Mr. Geraci sought to intervene in
this action because he filed an earlier action that raised
virtually identical allegations and claims against the same
defendant. However, Mr. Geraci's action has since been dismissed by
stipulation. Accordingly, the magistrate judge determined that the
Motion to Intervene had become moot.
Judge Moore finds that the magistrate judge's analysis was sound
and discerns no clear error on the face of the record. Therefore,
he accepts the Recommendation and denies as moot the Motion to
Intervene.
A full-text copy of the Court's Sept. 15, 2021 Order is available
at https://tinyurl.com/4zvn9cv7 from Leagle.com.
RUTHERFORD COUNTY, TN: October 29 Claims Filing Deadline Set
------------------------------------------------------------
WGNS reports that an $11-million class action lawsuit against
Rutherford County allows thousands of juveniles who feel that they
were arrested illegally to file a claim, but the deadline to file
is October 29, 2021.
The total amount to be paid by the county will depend on the number
of juveniles who step forward with a valid claim. That translates
into approximately $5,000 for each time a juvenile was illegally
detained.
Attorney Kyle Mothershead told WGNS, "The claim must be filed by
October 29, 2021, or it will not be accepted."
In May, 2017 Federal Judge Waverly D. Crenshaw issued a court order
stopping Rutherford County from detaining juveniles for minor
infractions.
The attorney continued, "For twenty-five years, Rutherford County
operated a mass illegal incarceration regime in which literally
thousands of children were illegally arrested and jailed at the
Rutherford County Juvenile Detention Center. In 2017, a federal
judge ordered the County to stop its illegal mass incarceration
polices, and earlier this year the County agreed to a class action
settlement of up to $11 million to compensate the children who were
victimized by these policies."
Mothershead explained that the claims process is difficult to
navigate, and families only have until October 29, 2021 to file
their claims or they will lose their opportunity.
Anyone who believes that they or a family member may have a claim
to phone (615) 730-8619 or email info@brazilclark.com, or (615)
730-8619. Claimants can also contact the settlement administrator
at https://www.rutherfordjuvenilesettlement.com/. [GN]
RYDER INTEGRATED: Keefer FCRA Suit Removed to N.D. California
-------------------------------------------------------------
The case styled SALNAVE KEEFER, individually and on behalf of all
others similarly situated v. RYDER INTEGRATED LOGISTICS, INC.;
HADCO METAL TRADING CO., LLC; and DOES 1 through 50, inclusive,
Case No. RG21111129, was removed from the Superior Court in the
State of California, Alameda County, to the U.S. District Court for
the Northern District of California on September 27, 2021.
The Clerk of Court for the Northern District of California assigned
Case No. 3:21-cv-07503 to the proceeding.
The case arises from the Defendants' alleged failure to make proper
disclosure in violation of the Fair Credit Reporting Act.
Ryder Integrated Logistics, Inc. is a logistics firm based in
Miami, Florida.
Hadco Metal Trading Co., LLC is a distributor and supplier of
plastics and metal products, with its principal place of business
in Bensalem, Pennsylvania. [BN]
The Defendants are represented by:
David A. Yudelson, Esq.
CONSTANGY, BROOKS, SMITH & PROPHETE, LLP
2029 Century Park East, Suite 1100
Los Angeles, CA 90067
Telephone: (310) 909-7775
E-mail: dyudelson@constangy.com
S.C. JOHNSON: Settles Mislabeling Class Action for $2.25 Million
----------------------------------------------------------------
Top Class Actions reports that S.C. Johnson & Son Inc. has agreed
to a $2.25 million Method class action lawsuit settlement
benefiting consumers who purchased certain products that were
allegedly falsely labeled as "non-toxic." Class Members may file a
Method settlement claim form and recover up to $10 without proof of
purchase.
The Class in the Method class action lawsuit settlement includes
anyone living in the United States who purchased certain Method
products with "non-toxic" labels in the United States between May
14, 2016, and May 13, 2021, for use and not for resale. The covered
Method products include all sizes and fragrances of the following:
Method All-Purpose Cleaner
Method Squirt + Mop Hard Floor Cleaner
Method All-Purpose Cleaner for Dog
Method Bathroom Cleaner
Method All-Purpose Cleaner for Cat
Method Wood for Good Daily Clean
Method All-Purpose Cleaning Wipes
Method Dish Soap, Method Smarty Dish
Method All-Purpose Cleaning Wipes for Dog
Method Smarty Dish Plus
Method All-Purpose Cleaning Wipes for Cat
Method PowerDish
Method Squirt + Mop Wood Floor Cleaner
Method Daily Granite Cleaner
Method Foaming Bathroom Cleaner
Method Stainless Steel Polish
Method Glass + Surface Cleaner
Method Heavy Duty Degreaser
Method Wood for Good Polish
Method Daily Shower Cleaner
The plaintiffs in the Method class action lawsuit had argued the
products' claims of being non-toxic were false and misleading
because the products have the capacity to harm humans or the
environment.
S.C. Johnson's family of brands includes many well-known and
widely-used product lines, including Glade, Drano, Kiwi, Meyer's,
Off!, Windex, and others.
The company stands by its product testing, which was used in making
the "non-toxic" claims on the Method cleaners.
While the Court has not ruled in favor of either party in this
case, both parties have agreed to a settlement in order to avoid
the costs and risks associated with trial.
Method Cleaners Settlement Benefits
Each Class Member's payment will depend on the number of Method
cleaners or products purchased that had the "non-toxic" labels, as
well as on the number of valid claims submitted.
Class Members who have proof of purchase (itemized store receipts,
loyalty/membership card printouts, non-identical original UPC
codes, and pictures of non-identical UPC codes) may file a claim
form seeking reimbursement of $1 for every covered product
purchased.
Class Members who do not have proof of purchase may seek a
reimbursement of $1 for up to 10 products purchased.
A Class Member may file a claim for products both with and without
proof of purchase. These types of claims will be subject to the
same potential reimbursement maximums allowed.
Each type of claim requires the Class Member to state, under
penalty of perjury, that they purchased the Method cleaner for
personal use; all claims must include the approximate dates of
purchase.
If the total amount of claims and other expenses exceeds the
settlement fund amount, each claimant's award will be reduced
proportionately; if money remains in the fund, awards may be
proportionately increased.
In addition to the monetary relief, S.C. Johnson has agreed the
covered Method products will no longer be advertised as
"non-toxic."
A final fairness hearing in the Method cleaners class action
settlement will be held Nov. 16, 2021.
The deadline to opt out of or object to the Method class action
lawsuit settlement is Oct. 18, 2021.
The deadline to submit a Method settlement claim form is Nov. 1,
2021.
Who's Eligible
Anyone living in the United States who purchased certain Method
products with "non-toxic" labels in the United States between May
14, 2016, and May 13, 2021, for use and not for resale.
Potential Award
Varies
Proof of Purchase
Itemized store receipts, loyalty/membership card printouts,
non-identical original UPC codes, and pictures of non-identical UPC
codes
Claim Form
CLICK HERE TO FILE A CLAIM »
NOTE: If you do not qualify for this settlement do NOT file a
claim.
Remember: you are submitting your claim under penalty of perjury.
You are also harming other eligible Class Members by submitting a
fraudulent claim. If you're unsure if you qualify, please read the
FAQ section of the Settlement Administrator's website to ensure you
meet all standards (Top Class Actions is not a Settlement
Administrator). If you don't qualify for this settlement, check out
our database of other open class action settlements you may be
eligible for.
Claim Form Deadline
11/01/2021
Case Name
Donna Connary et al. v. S.C. Johnson & Son Inc, Case No. RG20061675
in the Superior Court of California, Alameda County
Final Hearing
11/16/2021
Settlement Website
HouseholdProductsSettlement.com
Claims Administrator
Method Products Settlement
c/o Settlement Administrator
1650 Arch Street, Suite 2210
Philadelphia, PA 19103
info@HouseholdProductsSettlement.com
855-763-1115
Class Counsel
Wyatt A. Lison Esq.
FEINSTEIN DOYLE PAYNE & KRAVEC LLC
Defense Counsel
David F. McDowell
MORRISON & FOERSTER LLP [GN]
SEDGWICK CLAIMS: Smith FLSA Suit Removed to M.D. Florida
--------------------------------------------------------
The case styled BONNIE SMITH, individually and on behalf of all
others similarly situated v. SEDGWICK CLAIMS MANAGEMENT SERVICES,
INC., Case No. 21-CA-004869, was removed from the Circuit Court of
the Thirteenth Judicial Circuit in and for Hillsborough County,
Florida, to the U.S. District Court for the Middle District of
Florida on September 27, 2021.
The Clerk of Court for the Middle District of Florida assigned Case
No. 8:21-cv-02281 to the proceeding.
The case arises from the Defendant's alleged breach of contract and
failure to pay overtime wages in violation of the Fair Labor
Standards Act.
Sedgwick Claims Management Services, Inc. is a claims and
productivity management services provider based in Memphis,
Tennessee. [BN]
The Defendant is represented by:
Chad K. Lang, Esq.
SANCHEZ-MEDINA, GONZALEZ, QUESADA, LAGE, GOMEZ & MACHADO
LLP
201 Alhambra Circle, Ste. 1205
Coral Gables, FL 33134
Telephone: (305) 377-1000
E-mail: clang@smgqlaw.com
SESEN BIO: Wolf Haldenstein Reminds of October 18 Deadline
----------------------------------------------------------
Wolf Haldenstein Adler Freeman & Herz LLP on Sept. 20 disclosed
that a federal securities class action lawsuit has been filed in
the United States District Court for the Southern District of New
York on behalf of investors who purchased or acquired the
securities of Sesen Bio, Inc. from December 21, 2020 through August
17, 2021 (the "Class Period").
All investors who purchased Sesen Bio, 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 Sesen Bio, 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 Sesen
Bio, Inc.
On August 13, 2021, Sesen Bio announced the FDA declined to approve
its Biologics License Application for Vicineum in its current form.
On this news, the Company's share price fell $2.80, or 57%, to
close at $2.11 per share on August 13, 2021.
On August 16, 2021, Sesen Bio further revealed that "it appears
that [the Company] will need to do a clinical trial to provide the
additional efficacy and safety data necessary for the FDA to assess
the benefit-risk profile, which is the basis for approval." The
Company announced it expected it could not resubmit its BLA until
2023. On this news, the Company's share price fell $0.89, or 42%,
to close at $1.22 per share on August 16, 2021.
Then, on August 18, 2021, the health and medicine news site STAT
published an article entitled "Sesen Bio trial of cancer drug
marked by misconduct and worrisome side effects, documents show."
The article detailed that the clinical trial for Vicineum was
marked by thousands of violations of study rules, damning
investigator conduct, and worrying signs of toxicity the company
did not publicly disclose. On this news, the Company's share price
fell $0.20, or 13%, to close at $1.31 per share on August 18,
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
URL: http://www.whafh.com.[GN]
SMITH & NEPHEW: Surber Product Liability Suit Goes to N.D. Cal.
---------------------------------------------------------------
The case styled GINA SURBER and MERLE MALAKOFF, individually and on
behalf of all others similarly situated v. SMITH & NEPHEW
ORTHOPAEDICS LTD., SMITH & NEPHEW, INC., PETER CALLANDAR MD, and
DOES 1 through 100, inclusive, Case No. CGC-20-587927, was removed
from the Superior Court of New Jersey, Essex County, Law Division,
to the U.S. District Court for the Northern District of California
on September 29, 2021.
The Clerk of Court for the Northern District of California assigned
Case No. 3:21-cv-07621 to the proceeding.
The case arises from the Defendants' strict products liability for
design defect, manufacturing defect, and failure to warn; fraud for
intentional misrepresentation and concealment; suppression or
omission of material facts; negligence for failure to warn and
design defect; negligent misrepresentation; breach of implied
warranty; medical negligence; and loss of consortium.
Smith & Nephew Orthopaedics Ltd. is a medical device company based
in Tennessee.
Smith & Nephew, Inc. is a medical device company based in
Tennessee. [BN]
The Defendants are represented by:
John W. Shaw, Esq.
Litsa Georgantopoulos, Esq.
SHAW KOEPKE & SATTER, LLP
105 W. Torrance Boulevard, Suite 106
Redondo Beach, CA 90277
Telephone: (310) 373-4445
Facsimile: (310) 373-4440
E-mail: jshaw@sksattorneys.com
lg@sksattorneys.com
SNAP FINANCE: District of Utah Certifies Class in Wesley TCPA Suit
------------------------------------------------------------------
In the case, BRANDI WESLEY, on behalf of herself and others
similarly situated, Plaintiff v. SNAP FINANCE LLC, Defendant. SNAP
FINANCE LLC, Third-Party Plaintiff v. DERRICK DEON JACKSON, JR.,
a/k/a DERRICK JOHNSON, Third-Party Defendant, Case No.
2:20-cv-148-RJS-JCB (D. Utah), Judge Robert J. Shelby of the U.S.
District Court for the District of Utah:
(i) denied the Defendant's Motion to Exclude the Testimony of
Wesley's Class Notice Expert; and
(ii) granted the Plaintiff's Motion to Certify a Class.
Background
Plaintiff Wesley brings the action against Defendant Snap, seeking
classwide relief under the Telephone Consumer Protection Act of
1991 (TCPA), 47 U.S.C. Section 227. The TCPA prohibits placing
certain calls to a number assigned to a cellular telephone service
using an automatic telephone dialing system (ATDS) and/or
artificial or prerecorded voice to deliver a message without
consent.
Snap is a financial services company located in West Valley City,
Utah. Wesley alleges Snap started placing calls to her cellular
telephone number in November 2019. From Nov. 6, 2019 through Feb.
7, 2020, Wesley alleges Snap placed at least 60 calls to her
cellphone number. During that time, Snap left at least eight
artificial or prerecorded voice messages on Wesley's cellphone
voicemail.
When applying for financial services, Snap's customers consent to
calls like those received by Wesley through Snap's Terms and
Conditions for Applicants, providing in relevant part, "By signing,
you give us permission to call the landline or cell phone numbers
provided by you, by automated dialer or otherwise, and to leave
voice messages at the phone number listed above, disclosing the
name of Snap Finance, contact information, and the nature of the
call."
The problem is that Wesley is not, nor has ever been, one of Snap's
customers. She has never had any business relationship with Snap
and did not provide her cellular telephone number to Snap. Instead,
Snap placed the calls to her cellular telephone number in an effort
to reach a third party, not related to Wesley.
Ms. Wesley filed the lawsuit on March 6, 2020. On Dec. 4, 2020,
Wesley filed an Amended Complaint. In it, Wesley brings one claim
against Snap under the TCPA alleging two alternative theories of
liability: first, that Snap violated the TCPA through its use of an
automatic telephone dialing system (ATDS), and second, that Snap
violated the TCPA by use of artificial or prerecorded voice.
Wesley seeks to bring the artificial/prerecorded voice TCPA claim
on behalf of a class defined as: "All persons throughout the United
States (1) to whom Snap Finance LLC placed, or caused to be placed,
a call, (2) directed to a number assigned to a cellular telephone
service, but not assigned to a current or former Snap Finance LLC
accountholder, (3) in connection with which Defendant used an
artificial or prerecorded voice, (4) from Feb. 27, 2016 through the
date of class certification."
On April 16, 2021, Wesley filed a Motion to Certify a Class,
seeking certification of her proposed artificial/prerecorded voice
TCPA class. In her Motion, Wesley relies on a proposed notice plan
described in the declaration of Carla A. Peak. On May 14, 2021,
Snap filed a Motion to Determine Daubert Issues, seeking to exclude
Peak's testimony. The court heard argument on both motions on Sept.
9, 2021.31 The motions are now fully briefed and ripe for review.
Because the expert testimony Snap seeks to exclude would
potentially impact Wesley's Motion to Certify a Class, Judge Shelby
first addresses Snap's Motion to Exclude the Testimony of Wesley's
Class Notice Expert before turning to Wesley's class certification
motion.
Discussion
I. Motion to Exclude Testimony
Snap moves to exclude the testimony of Wesley's notice expert,
Carla A. Peak, pursuant to Federal Rule of Evidence 702. Rule 702
provides: "A witness who is qualified as an expert by knowledge,
skill, experience, training, or education may testify in the form
of an opinion or otherwise if: (a) the expert's scientific,
technical, or other specialized knowledge will help the trier of
fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data; (c) the
testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to
the facts of the case."
Snap moves to exclude Peak's testimony concerning Wesley's proposed
notice plan for her TCPA class. It argues Peak's testimony should
be excluded because the notice plan cannot reliably identify
proposed class members and it "does nothing to advance class
certification." Snap also argues Peak is not qualified to provide
expert testimony about the proposed class notice plan.
Judge Shelby disagrees on both counts. The Judge says Wesley has
demonstrated Peak's testimony is admissible under Rule 702 and
Daubert. First, Wesley has demonstrated Peak is qualified to serve
as an expert for class action notice plans. Experts are qualified
"by knowledge, skill, experience, training, or education" to render
an opinion. Wesley has demonstrated Peak's substantial experience
in class action notice plans makes her qualified to provide
testimony concerning a notice plan for this TCPA claim.
Second, Wesley has demonstrated Peak's testimony is reliable.
Wesley has demonstrated Peak's proposed notice plan follows an
accepted and often used method in providing notice to potential
TCPA class members. Accordingly, Judge concludes Peak's testimony
is reliable. Last, Wesley has demonstrated Peak's testimony is
relevant to the class certification motion. Evidence is relevant if
it "has any tendency" to make a fact of consequence "more or less
probable than it would be without the evidence." Wesley also relies
on this testimony to support her proposed notice plan pursuant to
Rule 23(c)(2)(B).
For these reasons, Judge Shelby denied Snap's Motion to Exclude the
Testimony of Carla A. Peak.
II. Motion to Certify a Class
Wesley seeks certification of a TCPA class based on Snap's alleged
use of artificial or prerecorded voice.
She defines the class as "All persons throughout the United States
(1) to whom Snap Finance LLC placed, or caused to be placed, a
call, (2) directed to a number assigned to a cellular telephone
service, but not assigned to a current or former Snap Finance LLC
accountholder, (3) in connection with which Snap Finance LLC used
an artificial or prerecorded voice, (4) from Feb. 27, 2016 through
the date of class certification."
Wesley estimates the class could consist of up to 82,780 members.
Judge Shelby addresses the Rule 23(a) requirements, before turning
to Rule 23(b)(3). The Judge concludes Wesley has satisfied her
burden to certify a class more narrowly defined than the one she
proposes.
Regarding the Rule 23(a) requirements, the Judge finds that (i)
because he concludes that Wesley has sufficiently demonstrated
numerosity for the proposed class period after Sept. 1, 2019, the
Judge limits the proposed class to that time period; (ii) Wesley
has satisfied the numerosity requirement for a class period
beginning on Sept. 1, 2019; (iii) Wesley has identified common
questions to all class members likely "to generate common answers
apt to drive the resolution of litigation"; (iv) Wesley has
demonstrated her claims and the class members' claims are likely
"based on the same legal or remedial theory"; and (v) Wesley has
demonstrated she and her counsel will adequately protect the
interests of the class.
Having concluded Wesley has satisfied each element of Rule 23(a),
Judge Shelby now turns to the requirements of Rule 23(b)(3). The
Judge addresses the established elements of Rule 23(b)(3),
predominance and superiority, before addressing the parties'
ascertainability arguments.
The Judge holds that (i) he agrees with Wesley, and other courts
evaluating similarly defined classes, that the individual issue is
predominated by common issues; (ii) Wesley has established "the
questions of law or fact common to class members predominate over
any questions affecting only individual members"; (iii) because
Wesley's proposed class definition includes only people who were
not customers of Snap, individual issues of consent are unlikely to
affect the manageability of the potential class; and (iv) Wesley
has demonstrated her class members are ascertainable under even the
strict standards employed by some circuits.
Conclusion
For the reasons he stated, Judge Shelby concludes that Wesley has
satisfied the requirements under Rule 23 and is therefore entitled
to certification of her proposed class. Accordingly, the Motion is
granted.
Judge Shelby certifies and defines the following class: "All
persons throughout the United States (1) to whom Snap Finance LLC
placed, or caused to be placed, a call, (2) directed to a number
assigned to a cellular telephone service, but not assigned to a
current or former Snap Finance LLC accountholder, (3) in connection
with which Snap Finance LLC used an artificial or prerecorded
voice, (4) from Sept. 1, 2019 through Sept. 21, 2021."
The Judge appoints Aaron D. Radbil, Michael L. Greenwald, and
Alexander D. Kruzyk as the class counsel. Brandi Wesley is
appointed as the class representative.
Judge Shelby orders the parties to meet and confer concerning the
form of the notice to be sent to the class members pursuant to Fed.
R. Civ. P. 23(c)(2). The parties will provide the Court with a
stipulated notice or the parties' proposed notices, including
supporting memoranda, no later than 30 days after entry of the
Order.
A full-text copy of the Court's Sept. 21, 2021 Memorandum Decision
& Order is available at https://tinyurl.com/ymkf7xz7 from
Leagle.com.
SOUTH CAROLINA: Brown Plaintiffs to Be Separated for Initial Review
-------------------------------------------------------------------
In the case, Tequan Brown, Dontarious Wright, Donnie Jones,
Plaintiffs v. Chares Burton, Thomas Robertson, Shaereta Allen,
Major S. Terry, Dion Tameka Gaines, S.C. Dept of Corrections,
Defendants, C/A No. 0:21-2712-TMC-PJG (D.S.C.), Magistrate Judge
Paige J. Gossett of the U.S. District Court for the District of
South Carolina holds that the Plaintiffs cannot proceed together in
one action without the counsel and that the case should be
separated into different cases, one for each Plaintiff.
The case is a civil rights action filed by three self-represented
state prisoners. The matter is before the Court pursuant to 28
U.S.C. Section 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.) for
initial review in accordance with 28 U.S.C. Section 1915A and the
Prison Litigation Reform Act ("PLRA"), Pub. L. No. 104-134, 110
Stat. 1321 (1996). Based on this review, Judge Gossett concludes
that the pro se Plaintiffs cannot proceed together in one action
without the counsel and that the case should be separated into
different cases, one for each Plaintiff.
Judge Gossett notes that the U.S. Court of Appeals for the Fourth
Circuit has held that pro se prisoners cannot bring a class action
lawsuit, citing Oxendine v. Williams, 509 F.2d 1405, 1407 (4th Cir.
1975) ("The competence of a layman representing himself is clearly
too limited to allow him to risk the rights of others"); Fowler v.
Lee, 18 F. App'x 164, 165 (4th Cir. 2001); Hummer v. Dalton, 657
F.2d 621, 625-26 (4th Cir. 1981) (holding that a pro se prisoner's
suit is "confined to redress for violation of his own personal
rights and not one by him as a knight-errant for all prisoners").
And, generally, the Fourth Circuit rejects the right of individuals
to litigate pro se on behalf of others. Moreover, the courts in
this district generally do not allow pro se prisoners to proceed
together in one action.
Accordingly, Judge Gossett concludes that the claims of the three
Plaintiffs in the instant action should be separated for initial
review.
Judge Gossett directs the Clerk of Court that the case will pertain
only to the first named Plaintiff Tequan Brown. Therefore, the
Clerk of Court is directed to terminate Dontarious Wright and
Donnie Jones as plaintiffs in the case. The Clerk of Court is
further directed to assign separate civil action numbers to the
Plaintiffs terminated in the case. The Clerk of Court will file the
Order as the initial docket entry in the newly created cases and
will re-file the Complaint in the newly created actions. The
Defendants in the newly created case will be the same Defendants
listed in the case. The Clerk of Court is authorized to determine
the most efficient way and time for assigning and entering the new
case number, party information, and pleading information on the
court's electronic case management system.
After the new cases are docketed, the assigned magistrate judge
will issue orders pursuant to the General Order issued in In Re:
Procedures in Civil Actions Filed by Prisoner Pro Se Litigants,
3:07-mc-5014-JFA (D.S.C. Sept. 18, 2007), and conduct initial
review in compliance with 28 U.S.C. Section 1915 and 28 U.S.C.
Section 1915A.
A full-text copy of the Court's Sept. 17, 2021 Order is available
at https://tinyurl.com/5ytj9fy7 from Leagle.com.
STATE FARM: Plaintiffs Ask Judge to Reconsider Class Cert. Denial
-----------------------------------------------------------------
Dave LaChance, writing for Repairer Drive News, reports that two
Georgia plaintiffs are asking a federal judge to reconsider his
denial of class action certification to more than 600,000 State
Farm insurance policy holders over what the two say are years of
lowball diminished value settlements.
In their civil suit against State Farm Mutual Automobile Insurance
Co. in the U.S. District Court for the Middle District of Georgia,
Rashad Baker and Zelma Stovall argue that the formula used to
determine diminished value in their cases is flawed, and resulted
in a too-small settlement.
Arguing that every one of the thousands of other claimants like
them was also a victim of the same flawed formula, they asked Judge
Clay D. Land to certify their case as a class action lawsuit, and
to include "All persons issued a Georgia vehicle insurance policy
by State Farm who -- based on loss dates between December 7, 2017,
and the date of certification [of class action status] -- made
physical damage claims under their policies . . ."
Land, in a Sept. 2 ruling, found that the plaintiffs had not proven
their "bold assessment that the formula underestimates diminished
value every time" [emphasis Land's], and noted that, in the
plaintiffs' case, the remedy was a jury trial to determine to weigh
their specific claims -- not a broad solution that would apply to
everyone in a certified class.
"In summary, Plaintiffs have not established that [State Farm's]
formula is wrong for all claims across the spectrum of vehicle
makes, model years, mileage, severity levels, and repair costs.
Thus, they have not demonstrated that every putative class member
was injured by application of [State Farm's] formula. Uninjured
plaintiffs, of course, do not have standing to bring an action,"
Land wrote.
Generally, diminished value is the difference between the value of
the vehicle if there had never been damage, and its value after
repairs have been completed.
The case centers around a 20-year-old ruling in State Farm Mutual
Insurance Co. v. Mabry, which established how State Farm is to
calculate diminished value for its Georgia customers. Finding that
State Farm had no appropriate methodology for calculating DV, the
trial court gave State Farm a number of options, including
something called the "17 (c) formula" used by other major insurers
operating in Georgia. State Farm adopted 17 (c), and, as Land
noted, is still bound to use the formula today, under threat of
contempt.
In his ruling, Land offers this description of how State Farm
employs 17 (c):
"First, State Farm calculates the 'base loss of value,' which is
ten percent of the vehicle's pre-loss retail value as determined
using the National Automobile Dealers Association website, which
considers variables like year, make, model, series, body style,
options, trim packages, and mileage. Second, State Farm assigns a
'damage severity modifier' ranging from 0.0 ("No structural damage
and replaced panels") to 1.0 ("Severe damage to the structure of
the vehicle"). . . Third, State Farm calculates a 'mileage
modifier,' which is calculated by using the following formula:
(Maximum Miles for Retail Sale - Actual Miles)/Maximum Miles for
Retail Sale. Under State Farm's formula, the maximum miles for
retail sale is generally 100,000 miles, but for some vehicles it
can be adjusted to 150,000 miles. Finally, State Farm calculates
the diminished value by multiplying base loss of value by the
damage severity modifier and the mileage modifier. If there was
prior damage not attributable to the loss being adjusted, it is
taken into account by performing a second 17(c) calculation."
If the claimant disputes the DV assessment, the claim is
transferred to a special unit that double-checks to make sure the
formula was applied correctly, and invites the claimant to present
evidence regarding the DV.
Baker and Stovall, the plaintiffs, hired appraisers to conduct DV
appraisals, and "both appraisers opined that the diminished value
was significantly more than the value State Farm calculated using
the 17 (c) formula," Land wrote in his order. State Farm, he added,
hired its own expert, who found the same thing, he added.
"Plaintiffs assert breach of contract claims, contending that the
17 (c) formula is flawed and that as a result Plaintiffs and
similarly situated insureds were not fully paid for diminished
value," Land wrote. Yet, he added, the plaintiffs "recognize that
calculating damage using a traditional approach, such as
case-by-case diminished value appraisals like the ones Plaintiffs
commissioned, would result in individual issues predominating over
common issues and make class certification inappropriate."
For that reason, he said, the plaintiffs have asked the court to
"require State Farm to reassess diminished value using a new
formula that has not yet been developed but could be formulated
after additional discovery."
Baker and Stovall rely on the expert opinion of Richard Hixenbaugh,
an experienced vehicle appraiser who contends that State Farm's use
of 17 (c) results in under-assessment of diminished value 100% of
the time. Hixenbaugh pointed to three flaws in the formula: DV is
capped at 10% of a vehicle's pre-loss value, though DV losses can
run up to 25%; mileage is double-counted, both in estimating
pre-loss value and again as part of the mileage modifier; and
vehicles over a certain mileage -- either 100,000 or 150,000,
depending on the vehicle -- are incorrectly assumed to have no
retail sale value.
Hixenbaugh analyzed 51 State Farm DV cases, in which he was hired
to help challenge the insurer's assessment. In each case, he found,
an appraiser's figure exceeded the 17 (c) assessment.
Land was critical of Hixenbaugh's findings, agreeing with an
assertion by State Farm's expert, Michael Salve, that the sample
size was too small, and was not representative of a cross-section
of the insurer's DV cases.
According to Land, Salve found that the average repair value for a
claim in Hixenbaugh's sample was $11,866, versus $4,442 for the
proposed class, and that his sample over-represented low-mileage,
late-model, premium vehicles. For those reasons, Salve argued,
Hixenbaugh's analysis "cannot be relied upon for the purposes of
extrapolating to the claims associated with the alleged class as a
whole."
In their motion for reconsideration, filed Sept. 14, Baker and
Stovall, joined by Rachael Leonard, said that Land had
misunderstood their claim, and was under a wrong impression about
Hixenbaugh's expert opinions.
They said their suit was based not on State Farm's failure to "pay"
DV, but "solely on State Farm's breach of the duty to assess for
DV," which, they said, made their claim relevant.
"[D]ifferent common evidence is relevant to a failure to assess,"
they argue. "Indeed, Plaintiffs do not need to show that 17 (c)
invariably resulted in an underpayment of DV, but rather that the
formula was so inherently flawed that the very application of it
was a breach of the duty to assess."
"Indeed," they wrote, "when dealing with a failure to assess claim
-- as opposed to a failure to pay claim -- it is not necessary to
prove that DV exists" (emphasis the plaintiffs'). "There is
substantial common evidence in the record that the 17 (c) formula
is so inherently flawed that it constitutes a breach of the duty to
assess."
Baker, Stovall and Leonard noted that experts hired by State Farm
"found DV was $0 in less than 1% of the cases, while 17(c) assessed
DV at 0% more than 50% of the time…. Meanwhile, the average DV
loss appraised by experts was $3,237, while State Farm paid an
average of $190" (emphasis the plaintiffs').
Addressing Hixenbaugh's opinions, the plaintiffs contend that the
appraiser's words were based not only on the sample cases that he
provided, but on "his own experience (and the knowledge he gained
from that experience) appraising thousands of varied vehicles for
DV (both for individuals and insurance companies), including
'virtually every make and model,' 'newer, more valuable vehicles or
vehicles that have incurred significant repair damage or both,' as
well as 'older, less expensive vehicles or vehicles with minor
damage.'"
"The court acknowledged the flaws in the 17 (c) formula but
concluded they did not impact all proposed class members," the
plaintiffs write. "Plaintiffs respectfully disagree but, at the
very least, the Court should allow Plaintiffs to renew their motion
with a narrowed class definition to ensure those injured by the
formula can obtain the good faith assessment they bargained for."
[GN]
STEVE KEMPER: Murray Suit Remanded to Jefferson County Cir. Court
-----------------------------------------------------------------
In the lawsuit styled LORI AND JOHN MURRAY, Individually and on
behalf of all others Similarly situated, Plaintiffs v. STEVE KEMPER
BUILDER, LLC, Defendant, Case No. 3:21-CV-68. (GROH) (N.D.W. Va.),
the U.S. District Court for the Northern District of West Virginia,
Martinsburg, grants the Plaintiffs' motion to remand.
The Plaintiffs move the Court to remand this class action case to
the Circuit Court of Jefferson County, West Virginia. The Defendant
filed a Response in opposition on May 25, 2021. The Plaintiffs
filed a Reply in support of the motion on June 3, 2021.
Background
The case arises out of an allegedly defective roof repair the
Defendant made on the Plaintiffs' residence in October 2019.
Plaintiffs Lori and John Murray allege that on October 3, 2019,
they entered a contract with the Defendant for the Defendant to
replace their roof shingles with shingles from an Owens Corning
catalog and make other storm related repairs. The Defendant also
promised the Plaintiffs the shingles would withstand the winter.
The Defendant installed the shingles on Oct. 26, 2019, yet by Oct.
31, 2019, many of the new shingles had been ripped off by the
wind.
The new shingles were ripped off by the wind again on Nov. 27,
2019. Both of the times that the shingles were ripped off, the
Plaintiffs notified the Defendant, and he would return to the
property to "hand seal" the new shingles. On Jan. 15, 2020, the
Defendant sent the Plaintiffs a final invoice for $41,790.75, which
they paid on Jan. 17, 2020. The invoice included $15,425.40 for
34.33 square feet of "Roofing IKO" shingles. The Plaintiffs allege
that the IKO shingles are of a poorer quality than the agreed Owens
Corning shingles per their contract.
The Plaintiffs allege that throughout the spring of 2020, more
shingles were ripped off during windstorms. On April 3, 2020, the
Defendant stated that it would replace the "back slope" of the
Plaintiffs' roof with new IKO shingles if they would sign a
release. The Plaintiffs refused to sign the release, and the
Defendant made no further repairs on their roof.
On April 1, 2021, the Plaintiffs initiated this suit by filing a
class action complaint in the Circuit Court of Jefferson County,
West Virginia, against the Defendant. The complaint states five
causes of action: (1) breach of express warranties, (2) breach of
warranty and breach of contract in violation of the Magnuson-Moss
Warranty Act ("MMWA"), (3) breach of warranty in violation of W.
Va. Code Section 46-2-101, et seq., (4) unfair and deceptive acts
and practices in violation of W. Va. Code Section 46A-6-101, et
seq., and W. Va. CSR Section 142-5-3, et seq., and (5) violations
under the West Virginia Storm Scammer Consumer Protection Act
("SSCA").
For relief, the Plaintiffs seek damages, including consequential
damages for the continued damage to their roof and loss of real
estate value, costs, attorney fees, and statutory damages.
Additionally, the Plaintiffs seek an award against the Defendant
for its unlawful practices that caused them "aggravation,
annoyance, and inconvenience."
The proposed class definition includes "all consumers, who, after
April 1, 2016, were West Virginia residents that entered into a
contract with Steve Kemper Builder, LLC, for exterior storm
restoration or home renovations." The Plaintiffs believe that the
Class consists of over 50 members, who seek the same relief as the
Plaintiffs.
On May 5, 2021, the Defendants timely removed the case to this
Court based upon diversity jurisdiction under 28 U.S.C. Section
1332. On May 11, 2021, the Plaintiffs filed the instant motion,
requesting that the Court remand the case back to the Circuit Court
of Jefferson County.
Discussion
The Plaintiffs' sole argument is that diversity jurisdiction is
lacking because the amount in controversy requirement has not been
met.
Chief District Judge Gina M. Groh notes that the complaint does not
make a specific request for damages. Thus, it is the Defendant's
burden to show that the amount in controversy satisfies the
requisite jurisdictional amount by a preponderance of the
evidence.
In its response, the Defendant argues that in addition to seeking
damages for the price of the contract, $41,790.75, a reasonable
reading of the complaint and its exhibits indicate that the
Plaintiffs seek damages for: (1) a roof replacement with a higher
quality shingle than they were originally charged for, (2) a
"material" loss of real estate value to their home as a result of
the work performed by the Defendant, (3) attorney fees, (4)
statutory damages, (5) their aggravation, annoyance, and
inconvenience, (6) damages to the interior of their home, (7) their
pool, (8) their pool equipment, (9) their pool liner, and (10)
their landscaping, gardens, and flower beds.
The Defendant avers that these additional damages and costs exceed
$33,209.25 by a preponderance of the evidence, and therefore, the
total amount in controversy exceeds $75,000.00 and satisfies the
requisite jurisdictional amount.
In response to the Defendant's arguments, the Plaintiffs aver that
the only amount in controversy definitively supported by the
contract is $15,425.40, the value listed in the invoice for roofing
materials, because the "complaint is clearly focused on the roofing
materials, specifically the shingles." The Plaintiffs further argue
that the Defendant's assertions that the amount in controversy will
increase because the higher quality shingles are more expensive, a
"reasonable plaintiff would apportion a significant number to a
material loss of real estate," attorneys' fees will be
"substantial," and compensation for aggravation, annoyance, and
inconvenience will be of "significant value" are speculative.
Upon careful consideration of the record, the Court finds that the
Defendant has not met its burden of proof with regard to the amount
in controversy. First, the Court agrees with the Plaintiffs that
the price of the contract is not the only definite amount in
controversy. The contract included the prices for the Defendant's
repairs to the property's sidings and gutters, for which the record
shows that the Plaintiffs are not claiming damages.
While the Court agrees with the Defendant that the email
correspondence between Plaintiff Lori Murray and the Defendant
shows that the Plaintiffs are seeking a full roof replacement, as a
general rule, the proper measure of damages in such cases involving
building contracts is the cost of repairing the defects or
completing the work and placing the construction in the condition
it should have been in if properly done under the agreement
contained in the building contract. Although the cost of repairing
the Plaintiffs' roof arguably exceeds the cost of the IKO shingles,
the Defendant has not provided any evidence of what that cost would
likely be. Thus, the only definite amount in controversy supported
by the record is $15,425.40.
Second, Judge Groh opines, the Defendant did not provide any
evidence to support its claims as to its assertions regarding the
cost of installing the Owens Corning Shingles, loss in real estate
value, and consequential damages for the Plaintiffs' interior,
pool, pool equipment, pool liner, landscaping, gardens, and flower
beds. Similarly, the Defendant merely asserts that the damages for
the loss of real estate and consequential damages are "significant"
and does not provide the Court with any competent proof or tangible
evidence. Thus, the Court finds that the Defendant has not met its
burden of proof for these damages.
Without competent proof or tangible evidence regarding those
damages, the Defendant cannot establish the requisite amount in
controversy based on the cost of the IKO shingles and the
Plaintiffs' claims for attorneys' fees and compensation for
aggravation, annoyance, and inconvenience, Judge Groh holds.
Accordingly, the Court is without jurisdiction, and remand is
required.
Conclusion
Based upon the foregoing, the Plaintiffs' Motion to Remand is
granted, and the above-styled civil action will be and is remanded
to the Circuit Court of Jefferson County, West Virginia, for all
further proceedings.
The Clerk of Court is directed to transmit copies of this Order to
all counsel of record and to the Circuit Clerk of Jefferson County,
West Virginia. The Clerk is further directed to remove this civil
action from the Court's active docket.
A full-text copy of the Court's Memorandum Opinion and Order dated
Sept. 13, 2021, is available at https://tinyurl.com/3aecunst from
Leagle.com.
SYRACUSE UNIVERSITY: Miller Contract Suit Removed to N.D.N.Y.
-------------------------------------------------------------
The case styled TREVOR MILLER, individually and on behalf of all
others similarly situated v. SYRACUSE UNIVERSITY, Case No.
007718/2021, was removed from the Supreme Court of the State of New
York, County of Onondaga, to the U.S. District Court for the
Northern District of New York on September 29, 2021.
The Clerk of Court for the Northern District of New York assigned
Case No. 5:21-cv-01073-LEK-TWD to the proceeding.
The case arises from the Defendant's alleged breach of express
contract and breach of implied contract by failing to protect the
sensitive information of the Plaintiff and Class members following
a data breach on the Defendant's computer system on or about
September 24, 2020.
Syracuse University is a private research university in Syracuse,
New York. [BN]
The Defendant is represented by:
Eric R. Fish, Esq.
BAKER & HOSTETLER LLP
45 Rockefeller Plaza
New York, NY 10111
Telephone: (212) 589-4200
Facsimile: (212) 589-4201
E-mail: efish@bakerlaw.com
- and –
Casie D. Collignon, Esq.
Sarah A. Ballard, Esq.
BAKER & HOSTETLER LLP
1801 California Street, Suite 4400
Denver, CO 80202
Telephone: (303) 861-0600
Facsimile: (303) 861-7805
E-mail: ccollignon@bakerlaw.com
sballard@bakerlaw.com
TABLEAU SOFTWARE: $1.06M Attys.' Fees & Costs Awarded in Scheufele
------------------------------------------------------------------
In the case, CARRIE SCHEUFELE, JEFFREY SCHEUFELE and NICHOLAS ORAM,
Individually and on Behalf of All Others Similarly Situated,
Plaintiffs v. TABLEAU SOFTWARE, INC., CHRISTIAN CHABOT, THOMAS
WALKER, PATRICK HANRAHAN and CHRISTOPHER STOLTE, Defendants, Civil
Action No. 1:17-cv-05753-JGK (S.D.N.Y.), Judge John G. Koeltl of
the U.S. District Court for the Southern District of New York
granted the motion of the Lead Counsel for an award of attorneys'
fees and expenses.
The matter came before the Court on Sept. 17, 2021, on the Fee
Motion. Having considered all papers filed and proceedings
conducted herein, having found the Settlement of the Litigation to
be fair, reasonable and adequate, and otherwise being fully
informed in the premises and good cause appearing therefore, Judge
Koeltl awards the Lead Counsel attorneys' fees of 28% of the
Settlement Amount, plus expenses in the amount of $1,057,881.05,
together with the interest earned on both amounts for the same time
period and at the same rate as that earned on the Settlement Fund
until paid. He finds that the amount of fees awarded is fair,
reasonable, and appropriate under the "percentage-of-recovery"
method, as well as the lodestar cross-check.
The awarded attorneys' fees and expenses and interest earned
thereon, will be paid to the Lead Counsel immediately upon
execution of the Final Judgment and the Order and subject to the
terms, conditions, and obligations of the Stipulation.
Any appeal or any challenge affecting the Court's approval
regarding the Fee Motion will in no way disturb or affect the
finality of the Judgment entered with respect to the Settlement.
In the event that the Settlement is terminated or does not become
Final or the Effective Date does not occur in accordance with the
terms of the Stipulation, the Order will be rendered null and void
to the extent provided in the Stipulation and will be vacated in
accordance with the Stipulation.
A full-text copy of the Court's Sept. 17, 2021 Order is available
at https://tinyurl.com/3btetpve from Leagle.com.
TABLEAU SOFTWARE: Final Judgment Entered in Scheufele Class Suit
----------------------------------------------------------------
Judge John G. Koeltl of the U.S. District Court for the Southern
District of New York enters Final Judgment in the case, CARRIE
SCHEUFELE, JEFFREY SCHEUFELE and NICHOLAS ORAM, Individually and on
Behalf of All Others Similarly Situated, Plaintiffs v. TABLEAU
SOFTWARE, INC., CHRISTIAN CHABOT, THOMAS WALKER, PATRICK HANRAHAN
and CHRISTOPHER STOLTE, Defendants, Civil Action No.
1:17-cv-05753-JGK (S.D.N.Y.).
on Sept. 17, 2021, Judge Koeltlt held a hearing to determine: (1)
whether the proposed Settlement of the Litigation on the terms and
conditions provided for in the Stipulation of Settlement dated
April 16, 2021, is fair, reasonable, and adequate to the Class and
should be approved by the Court: (2) whether a Judgment should be
entered; (3) whether the proposed Plan of Allocation should be
approved; and (4) whether and in what amount to award the Lead
Plaintiff Counsel fees and costs, charges, and expenses.
The Judge has considered all matters submitted to the Court at the
hearing and otherwise. Pursuant to Federal Rule of Civil Procedure
23, he approves the Settlement set forth in the Stipulation.
Accordingly, he authorizes and directs implementation and
performance of all the terms and provisions of the Stipulation, as
well as the terms and provisions thereof. Except as to any
individual claim of those Persons who have validly and timely
requested exclusion from the Class, the Judge dismisses the
Litigation and all Released Claims with prejudice. The Settling
Parties are to bear their own costs, except as and to the extent
provided in the Stipulation and in the Final Judgment.
Upon the Effective Date, and as provided in the Stipulation, the
Lead Plaintiff will, and each and every Releasing Plaintiff Party
will be deemed to have, and by operation of the Judgment will have,
fully, finally, and forever waived, released, relinquished,
discharged, and dismissed with prejudice each and every one of the
Released Claims (including Unknown Claims) against each and every
one of the Released Defendant Parties, and will forever be barred
and enjoined from asserting, commencing, instituting, prosecuting,
continuing to prosecute, or maintaining in any court of law or
equity, arbitration tribunal, or administrative forum any and all
of the Released Claims against any and all of the Released
Defendant Parties, whether or not such Releasing Plaintiff Party
executes and delivers the Proof of Claim and Release form or shares
in the Net Settlement Fund. The Lead Plaintiff and each Releasing
Plaintiff Party are bound by the Judgment, including, without
limitation, the release of claims as set forth in the Stipulation.
Upon the Effective Date, and as provided in the Stipulation, each
of the Released Defendant Parties will be deemed to have, and by
operation of the Judgment will have, fully, finally, and forever
released, relinquished, and discharged all the Released Defendants'
Claims (including Unknown Claims) against the Lead Plaintiff, the
Class, and the Lead Plaintiff's Counsel. Claims to enforce the
terms of the Stipulation are not released.
Any Plan of Allocation submitted by Lead Counsel or any order
entered regarding any attorneys' fee and expense application will
in no way disturb or affect the Judgment and will be considered
separate from this Judgment. Separate orders will be entered
regarding approval of the Plan of Allocation and the Lead
Plaintiff's Counsel's application for an award of attorneys' fees
and expenses.
Any appeal or any challenge affecting the approval of (a) the Plan
of Allocation submitted by Lead Counsel and/or (b) the Court's
approval regarding any attorneys' fee and expense applications will
in no way disturb or affect the finality of the other provisions of
the Judgment nor the Effective Date of the Settlement.
Judge Koeltl finds that the Defendants have satisfied their
financial obligations under the Stipulation by paying or causing to
be paid $95 million to the Settlement Fund, in accordance with the
Stipulation.
Without affecting the finality of the Judgment in any way, the
Court retains continuing jurisdiction over the Defendants, the Lead
Plaintiff, and the Class Members for all matters relating to the
administration, interpretation, effectuation, or enforcement of the
Stipulation and the Judgment, including administering and
distributing Settlement proceeds to the Members of the Class.
The Judge finds that during the course of the Litigation, the
Settling Parties and their respective counsel at all times complied
with the requirements of Federal Rule of Civil Procedure.
The Settling Parties are authorized, without further approval of
the Court, to unanimously agree to and adopt in writing amendments,
modifications, and expansions of the Stipulation, provided that
such amendments, modifications, and expansions of the Stipulation
are not materially inconsistent with the Judgment, and do not
materially limit the rights of the Members of the Class under the
Stipulation.
Without further order of the Court, the Settling Parties may agree
to reasonable extensions of time to carry out any of the provisions
of the Stipulation.
The Litigation and all the Released Claims are dismissed with
prejudice. The parties are to bear their own costs, except as
otherwise agreed to in writing by the Settling Parties or as
otherwise provided in the Stipulation or the Judgment.
Judge Koeltl has considered the objection to the Settlement filed
by Mark Martin, and finds that it is without merit. It is therefore
overruled in its entirety.
There is no reason for delay in the entry of the Judgment and
Koeltl expressly directs immediate entry of the Judgment by the
Clerk of the Court.
A full-text copy of the Court's Sept. 17, 2021 Final Judgment is
available at https://tinyurl.com/ydwhrax6 from Leagle.com.
TD ASSET: Industry Critic Can't Provide Evidence in Class Action
----------------------------------------------------------------
James Langton, writing for Investment Executive, reports that a
British Columbia court has ruled that a former broker turned
industry critic, Larry Bates, can't provide expert evidence in a
proposed class-action suit against TD Asset Management Inc. (TDAM),
after concluding that Bates is biased against the banks.
The ruling from the Supreme Court of B.C. involves a proposed class
action against TDAM, which claims that investors were systemically
overcharged in certain mutual funds -- for which TDAM was the
trustee and manager -- because the funds were "closet indexers"
that charged fees for active management but delivered
index-tracking performance.
Those allegations have not been proven. The case was certified as a
class action in July 2020.
The plaintiff in the case sought to admit testimony and a report
from Bates as expert evidence in the case.
However, the court denied the bid, concluding that Bates is biased
against the banks and can't provide objective evidence for this
case.
"Mr. L. Bates comes to this court with an unshakeable bias against
any 'big Canadian' bank," the court said in its decision, citing as
proof the report that Bates provided as well as Twitter posts from
him that criticized the banks' retail investment operations at
large.
"In sum, I find Mr. L. Bates to be partisan to the plaintiff class
members and is unable to be fair and objective," the court said.
"The current application is one of those 'quite rare' cases where a
proposed expert's evidence is ruled inadmissible." [GN]
TEXAS: Bids for Leave to Appeal in Forma Pauperis in Brandt Denied
------------------------------------------------------------------
In the case, TIM BRANDT v. UNKNOWN PEGODA, ATC SUPERVISOR, Civil
Action No. 9:20-CV-211 (E.D. Tex.), Judge Ron Clark of the U.S.
District Court for the Eastern District of Texas, Lufkin Division,
denied the Plaintiff's Motions for Leave to Appeal In Forma
Pauperis.
The Plaintiff, Tim Brandt, an inmate confined at the Polunsky Unit
with the Texas Department of Criminal Justice, Correctional
Institutions Division, proceeding pro se and in forma pauperis,
filed this civil rights action pursuant to 42 U.S.C. Section 1983
against Defendant FNU Unknown Pegoda, ATC Supervisor.
The Magistrate Judge recommended denying the Plaintiff's claim for
denial of access to courts and Motion for Temporary Restraining
Order and Motion for Preliminary Injunction. The Plaintiff filed
Objections which were overruled. A Final Judgment was entered in
this matter on June 24, 2021, dismissing the Plaintiff's civil
rights action and Motion for Temporary Restraining Order and Motion
for Preliminary Injunction as moot.
The Plaintiff filed Notices of Appeal on July 13, 2021, and on Aug.
20, 2021. Currently pending is the Plaintiff's Motions for Leave to
Appeal In Forma Pauperis,
The Plaintiff filed the complaint on Oct. 22, 2020. He sought a
temporary restraining order and/or preliminary injunction "to
ensure he receives access to courts" and is able to "redress
grievances." The Plaintiff contended that the Defendant refused to
mail his suit in "one box" which would cost only $42. According to
the Plaintiff, the Defendant insisted the suit would have to be
sent piecemeal over the course of thirty weeks at the cost of more
than $150.
On Oct. 26, 2020, the Magistrate Judge entered an order requiring
the Plaintiff to replead his cause of action. The Plaintiff
responded and confirmed the suit he was seeking to file was a class
action suit relating to child support payments where the class
complained they were denied the ability to pay child support. He
clarified that the law library supervisor refused to mail the suit
in one box as the $42 exceeded the $2.75 allowed for weekly legal
mail postage. The Plaintiff stated he sought permission to exceed
the $2.75 limit and it was denied. According to him, the law
library supervisor said the suit had to be mailed piecemeal in
order to avoid exceeding the $2.75 weekly legal mail postage limit.
The Plaintiff complained the Court will not accept piecemeal
litigation.
The Magistrate Judge recommended the Plaintiff's claim for a denial
of access to courts and the Motion for Temporary Restraining Order
and Motion for Preliminary Injunction be dismissed as frivolous and
for failure to state a claim. The Magistrate Judge explained that
any official capacity suit against the Defendant for monetary
damages should be dismissed pursuant to Saahir v. Estelle, 47 F.3d
758, 762 (5th Cir. 1995).
Second, the Magistrate Judge explained that the Plaintiff's claim
for denial of access to courts failed as a matter of law as the
Plaintiff's class action suit relating to child support payments
does not involve a legal claim that challenges his conviction or
conditions of confinement pursuant to Lewis v. Casey, 518 U.S. 343
(1996) ("impairment of any other litigating capacity is simply one
of the incidental (and perfectly constitutional) consequences of
conviction and incarceration."). As a result, the Magistrate Judge
concluded that the Plaintiff's Motion for Temporary Restraining
Order and Preliminary Injunction should be denied as the Plaintiff
could not show a substantial likelihood of success on the merits.
In his Objections, the Plaintiff complained that his Motion for
Temporary Restraining Order and Motion for Preliminary Injunction
were improperly converted to a suit pursuant to 42 U.S.C. Section
1983. In the Memorandum Opinion and Order Overruling the
Objections, this Court explained that in order for a court to
enjoin a state actor, there must be an underlying federal
constitutional violation. The only federal constitutional violation
alleged by the Plaintiff was a denial of access to courts. As such,
this Court determined that the Magistrate Judge properly construed
the claim as a claim for denial of access to courts pursuant to 42
U.S.C. Section 1983. Regardless, after his Objections, the
Plaintiff filed a Motion for Leave to File Excess Pages wherein he
sought leave to file the class action lawsuit which was mailed to
the Clerk of Court in one large box, comprising almost 500 pages.
Regardless of the viability of the Plaintiff's Section 1983 claim
regarding child support payments, Judge Clark holds that this Court
properly determined that the Plaintiff's claim of denial of access
to courts, Motion for Temporary Restraining Order and Motion for
Preliminary Injunction were mooted when the Plaintiff mailed and
filed the class action lawsuit.
To prevail on a claim that his right of access to court has been
violated, a prisoner must demonstrate prejudice or harm by showing
that his ability to pursue a "nonfrivolous," "arguable" legal claim
was hindered by the defendant's actions. He must identify the
nonfrivolous, arguable legal claim. There is no constitutional
violation when a prisoner has time to submit legal documents to a
court despite impediments caused by the officials. A civil rights
claim cannot be based on "minor and short-lived impediments to
access" in the absence of actual prejudice.
Based on the foregoing, Judge Clark denied the Plaintiff's Motions
for Leave to Appeal In Forma Pauperis. Pursuant to 28 U.S.C.
Section 1915(a)(3) and Federal Rule of Appellate Procedure
24(a)(3), the Judge certifies that the appeal is not taken in good
faith. Although this Court has certified that the appeal is not
taken in good faith under 28 U.S.C. Section 1915(a)(3) and Federal
Rule of Appellate Procedure 24(a)(3), the Plaintiff may challenge
this finding pursuant to Baugh v. Taylor, 117 F.3d 197 (5th Cir.
1997), by filing a separate motion to proceed in forma pauperis on
appeal with the Clerk of Court, U.S. Court of Appeals for the Fifth
Circuit, within 30 days of the Order. The cost to file a motion to
proceed on appeal with the Fifth Circuit is $505. If the Plaintiff
chooses to file a separate motion to proceed in forma pauperis on
appeal, he must file a new motion that complies with the statutory
requirements of 28 U.S.C. Section 1915.
Further, Judge Clark denied as moot the Plaintiff's Motion to Stay
Judgment and Motion for Extension of Time to Perfect Appeal as the
Plaintiff filed Notices of Appeal on July 13, 2021 and on Aug. 20,
2021.
A full-text copy of the Court's Sept. 17, 2021 Memorandum Opinion &
Order is available at https://tinyurl.com/vfr369p6 from
Leagle.com.
TEXTRON INC: Dismissal of IWA Securities Suit Affirmed in Part
--------------------------------------------------------------
In the case, IWA FOREST INDUSTRY PENSION PLAN, Plaintiff-Appellant
v. TEXTRON INC., SCOTT C. DONNELLY, FRANK T. CONNOR,
Defendants-Appellees, Case No. 20-2746-cv (2d Cir.), the U.S. Court
of Appeals for the Second Circuit affirms in part and vacates in
part the district court's July 20, 2020 judgment.
The judgment was issued by the U.S. District Court for the Southern
District of New York (Cote, J.) dismissing IWA's putative class
action, which alleged violations of Sections 10(b) and 20(a) of the
Securities Exchange Act of 1934 and Rule 10b-5, 17 C.F.R. Section
240.10b-5.
Background
Textron is a publicly traded corporation that makes and sells
aircraft, aerospace and defense products, and recreational
vehicles. The company has five operational segments: Textron
Aviation, Bell Helicopter, Industrial, Textron Systems, and
Finance. At issue in the case is the Industrial segment, which
includes the Textron Specialized Vehicles business.
In January 2017, Textron announced that it had reached a deal to
acquire Arctic Cat, a manufacturer of snowmobiles and off-road dirt
vehicles. Arctic Cat marketed and sold these products largely
through a network of approximately 800 independent dealers. At the
time, Textron's CEO, Donnelly, openly acknowledged that Arctic Cat
had "inventory issues." Specifically, over the preceding few years,
inventory had "built up in the sales channel," and the excess
inventory that remained from prior model years (model years 2016
and older) was weighing on current sales of new vehicles (model
year 2017).
The acquisition closed in March 2017, and Textron began to
integrate Arctic Cat into its Specialized Vehicles business. The
next month Donnelly explained on an earnings-call that "the
challenge that we have" with Arctic Cat "was they frankly have too
much inventory." To address the problem, Textron resorted to a
"rebate" program designed to encourage sales of the older Arctic
Cat inventory and clear it from dealership floors. The program,
however, depressed the company's profits. Donnelly continued to
discuss the status of Arctic Cat's excess aged inventory throughout
2017.
In early fall 2017, meanwhile, Textron had launched Arctic Cat's
dirt and snow products for the 2018 model year.
The complaint alleges that Donnelly made three false and misleading
statements regarding Arctic Cat's inventory levels, beginning in
January 2018. First, on Textron's January 2018 earnings call,
Donnelly stated that the company had seen "improved demand in the
snow retail channel, allowing dealers to clear older inventory and
drive 2018 model sales." Second, on Textron's April 2018 earnings
call, Donnelly stated that "through the course of the year" there
had been "pretty significant reductions in that aged inventory" and
that there was "lower inventory of aged stuff and a lot of exciting
new stuff that will be on the floors that dealers are pretty
excited about."Donnelly also stated that Textron had sold very few
Arctic Cat vehicles of any kind in the first quarter of 2018, which
was expected given the company's seasonal sales cycle. Third, on
Textron's July 2018 earnings call, Donnelly responded to an
analyst's question about Arctic Cat's inventory levels by stating
that, although he did not "have the numbers at his fingertips,"
"older inventory had been moved off dealers' books," dealers were
"taking restockings of current model year product," and "last year
was great, in terms of burning down a lot of the inventory."
IWA claims that these statements were false because, from "early
2017 through at least the summer of 2018," Textron consistently had
an inventory backlog of 22,000 to 25,000 Arctic Cat vehicles from
model years 2015 to 2017. IWA points to information provided by a
cadre of confidential informants to support its claim. According to
one former Textron Specialized Vehicles employee, for example,
non-current model year vehicles were "stacked up for miles" at
Arctic Cat's headquarters in mid-to-late 2017. Despite Textron's
(costly) efforts to sell off aged inventory using rebates, another
former employee said that, even in January 2018, Textron continued
to fill dealerships "back up with more aged inventory from
2015-17," which limited the dealers' demand for model year 2018
vehicles. Another former employee, a Textron Specialized Vehicles
sales manager in 2017 and 2018, stated that Textron was still
trying to move aged inventory through the rebate program in March
2018.
In October 2018, Textron's stock fell more than 11 percent after
the company failed to meet its third quarter earnings expectations,
largely due to a precipitous decline in the Industrial segment's
third quarter profits from $49 million the prior year to $1 million
in 2018. A leading analyst pinned the blame for the decline on
Textron's Specialized Vehicles business, which had "given dealers
rebates for product that isn't selling," thus costing the company
"$40-50 million in the third quarter" alone.
The lawsuit was filed in August 2019. IWA was appointed lead
plaintiff in November 2019 and filed an amended complaint the
following month. In February 2020, after the Defendants moved to
dismiss the amended complaint, IWA filed the operative second
amended complaint that is at issue on appeal. The Defendants moved
to dismiss the complaint on the ground that it failed to adequately
allege any actionable misstatements or scienter.
The District Court dismissed the complaint in its entirety. It
held, among other things, that the complaint failed to plead that
the defendants had made any misrepresentations about Arctic Cat's
inventory levels in violation of Seciton 10(b) or Rule 10b-5
because the factual allegations regarding the backlog of 22,000 or
more non-current vehicles "treat vehicles from model years 2015-17
as interchangeable." "It would not be misleading for Textron to
state that it was clearing 'older' inventory," the District Court
explained, "if it had sold off 2015 and 2016 vehicles while
simultaneously pushing 2017 inventory out to dealers." The District
Court declined to reach the issue of scienter. Although it did not
explicitly address IWA's Section 20(a) claims, the court closed the
case because such claims cannot survive absent an underlying
violation of federal securities law.
Discussion
The crux of IWA's claim regarding the inventory-related statements
is that in January, April, and July 2018 Donnelly made misleading
statements about the company's progress in reducing its stockpile
of model year 2017 and older vehicles. On appeal, Textron and the
other defendants respond that these statements were not misleading
when viewed in context. Specifically, they point to Donnelly's
statements in 2017, which disclosed the significant challenges
presented by Arctic Cat's backlog of aged inventory. The complaint
acknowledges, they say, that in 2017 Textron inherited from Arctic
Cat a significant inventory backlog of non-current model year
products -- at that point 2016 and older models -- that undercut
Textron's ability to sell current model year products and decreased
its profits. And by the start of the class period in January 2018,
the Defendants continue, any reasonable investor would have
recognized that the "older inventory" problem mentioned by Donnelly
in his 2018 statements related to "a stockpile of Arctic Cat
vehicles that, at the least, were model year 2016 and older," and
had nothing to do with model year 2017 vehicles.
The Second Circuit disagrees with the Defendants that these
statements from 2018 clearly referred only to model year 2016 and
older vehicles, or that they comported with Textron's failure to
reduce its backlog of model year 2017 and older vehicles. To start,
the record viewed in the light most favorable to IWA suggests that
Arctic Cat's new model year products are generally launched in the
fall of the prior calendar year and before the first quarter of
Textron's fiscal year.Thus, Arctic Cat's 2017 models were not
current as of August or September 2017.
Insofar as the inventory-related statements that Donnelly made in
July 2017 referred to the backlog of "older" or "aged" inventory,
the Second Circuit holds that those statements clearly (and
accurately) must have referred to models from 2016 or earlier, not
to models from 2017. That is less clearly true, however, of the
first of Donnelly's 2018 statements in January 2018, made at least
three full months after the 2018 model year vehicles were
introduced.
The Second Circuit therefore holds that IWA sufficiently alleged
the materially misleading nature of Donnelly's 2018 statements
regarding Textron's inventory. In its view, the very able and
experienced District Judge reached a contrary conclusion
prematurely. The assumption that old inventory excludes 2017 model
years is inconsistent with the complaint and not one it can make at
this stage of the litigation, when it must "accept all factual
claims in the complaint as true and draw all reasonable inferences
in the Plaintiff's favor."
While expressing no view on the ultimate merits of IWA's theory of
fraud relating to Textron's inventory, the Second Circuit
emphasizes that the District Judge's alternative interpretation of
the challenged statements was not unreasonable; the case with
respect to Donnelly's inventory-related statements is a close one,
and the Second Circuit understands why the dissent supports the
District Judge's view. Nevertheless, it concludes that the District
Court in effect required IWA "to show that its reading was superior
to the court's own benign reading" of those statements -- a
requirement we have described as error.
Finally, although the Defendants urge otherwise, the Second Circuit
also concludes that Rule 9(b)'s demand for particularity is
satisfied in the case. The complaint "states with particularity the
statements it alleges are misleading and the reasons why these
statements are fraudulent."
The Second Circuit, therefore, vacates the portion of the District
Court's judgment dismissing IWA's securities fraud claims
(including the Section 20(a) claims) arising from the inventory
statements.
In addition to the inventory-related statements, the complaint
alleges that the Defendants made material misstatements regarding
the following: the status of Arctic Cat's integration into
Textron's Specialized Vehicles business; Arctic Cat's performance
and prospects; and the possibility that Textron might have to
recognize a goodwill impairment charge. For substantially the
reasons stated in the District Court's opinion and order, the
Second Circuit affirms the dismissal of the claims arising from
these alleged misrepresentations.
Conclusion
The Second Circuit has considered IWA's remaining arguments on
appeal and concludes that they are without merit. For the foregoing
reasons, it vacates the District Court's judgment as to the
inventory statements and remands for further proceedings consistent
with its Opinion. It affirms the District Court's judgment as to
the remainder of the statements alleged in the complaints.
A full-text copy of the Court's Sept. 17, 2021 Order is available
at https://tinyurl.com/5f3j5rpa from Leagle.com.
FREDERIC S. FOX -- ffox@kaplanfox.com -- (Melinda D. Campbell, on
the brief), Kaplan Fox & Kilsheimer LLP, in New York City, for
Plaintiff-Appellant IWA Forest Industry Pension Plan.
SANDRA C. GOLDSTEIN -- sandra.goldstein@kirkland.com -- (Stefan H.
Atkinson, Kevin M. Neylan, Jr., on the brief), Kirkland & Ellis
LLP, in New York City, for Defendants-Appellees Textron Inc., Scott
C. Donnelly, and Frank T. Connor.
TIFFANY AND COMPANY: Bermejo Labor Suit Goes to C.D. California
---------------------------------------------------------------
The case styled TIM BERMEJO, individually and on behalf of all
others similarly situated v. TIFFANY AND COMPANY and DOES 1 through
100, inclusive, Case No. 21STCV27417, was removed from the Superior
Court of the State of California for the County of Los Angeles to
the U.S. District Court for the Central District of California on
September 29, 2021.
The Clerk of Court for the Central District of California assigned
Case No. 2:21-cv-07767 to the proceeding.
The case arises from the Defendant's alleged violations of the
California Labor Code and the California Business and Professions
Code including unpaid overtime, failure to provide all meal periods
or pay a premium in lieu thereof, failure to provide all rest
breaks or pay a premium in lieu thereof, failure to pay minimum
wage, final wages not timely paid, wages not timely paid during
employment, failure to furnish accurate itemized wage statements,
failure to keep accurate and complete payroll records, failure to
reimburse business expenses, and unfair business practices.
Tiffany and Company is an American luxury jewelry and specialty
retailer headquartered in New York, New York. [BN]
The Defendant is represented by:
Carrie A. Gonell, Esq.
Nancy Nguyen, Esq.
Mayra Negrete, Esq.
MORGAN, LEWIS & BOCKIUS LLP
600 Anton Boulevard, Suite 1800
Costa Mesa, CA 92626-7653
Telephone: (714) 830-0600
Facsimile: (714) 830-0700
E-mail: carrie.gonell@morganlewis.com
nancy.nguyen@morganlewis.com
mayra.negrete@morganlewis.com
TOYOTA MOTOR: Faces Suit Over Faulty Highlander Hybrid Fuel Tanks
-----------------------------------------------------------------
Schubert Jonckheer & Kolbe LLP on Sept. 21 announced its filing of
a class action lawsuit against Toyota Motor Sales, U.S.A., Inc.
("Toyota") for its sale of 2020 Highlander Hybrid vehicles (the
"Highlanders") with faulty fuel tanks.
Toyota advertises and represents that the Highlander's fuel tank
capacity is 17.1 gallons, and based on its 36 mpg rating, the
Highlander's range should be 616 miles. However, according to
customer complaints and numerous reports filed by drivers with the
National Highway Traffic and Safety Administration, the
Highlander's fuel tank does not fill to the advertised capacity.
Drivers report that the advertised 17.1 gallon tank will only
accept 12-13 gallons. As a result, the Highlander's actual mileage
range is approximately 430-500 miles, well below the estimated 616
range.
The lawsuit filed on July 2, 2021 in the U.S. District Court for
the Northern District of California seeks monetary damages for
purchasers and injunctive relief to prevent Toyota from selling the
defective Highlanders.
The problem in the Highlanders may be the same defect that is in
the 2019-2021 Toyota RAV4 Hybrids. Our firm is also currently
representing plaintiffs in a class action focusing on the RAV4
Hybrids. See In Re Toyota RAV4 Hybrid Fuel Tank Litigation,
3:20-cv-00337.
If you purchased a 2020/2021 Toyota Highlander Hybrid and would
like to learn more about your legal rights, please contact us today
or visit our website at
https://www.classactionlawyers.com/blog/highlander
About Schubert Jonckheer & Kolbe LLP
Schubert Jonckheer & Kolbe represents shareholders, employees, and
consumers in class actions against corporate defendants, as well as
shareholders in derivative actions against their officers and
directors. The firm is based in San Francisco, and with the help of
co-counsel, litigates cases nationwide.
Contact
Alexandra Green
Schubert Jonckheer & Kolbe LLP
agreen@sjk.law
Tel: 415-788-4220 [GN]
TRIPP SCOTT: Court Denies Bid to Dismiss Kantor's Class Complaint
-----------------------------------------------------------------
In the case, BARBARA KANTOR, Plaintiff v. TRIPP SCOTT, P.A.,
Defendant, Case No. 21-60306-CIV-SMITH/VALLE (S.D. Fla.), Judge
Rodney Smith of the U.S. District Court for the Southern District
of Florida denied the Defendant's Motion to Dismiss Plaintiff's
Class Action Complaint with Prejudice and Request for Attorney's
Fees.
The matter is before the Court on the Magistrate Judge's Report and
Recommendation to District Judge, in which the Magistrate Judge
recommends that the Defendant's Motion to Dismiss be denied. No
objections have been filed to the Report and Recommendation. Thus,
having reviewed Magistrate Judge Valle's Report and Recommendation,
the record, and given that no objections were filed, Judge Smith
denied the Defendant's Motion to Dismiss.
A full-text copy of the Court's Sept. 15, 2021 Order is available
at https://tinyurl.com/dj6atp62 from Leagle.com.
TRULIEVE INC: Settles Class Action Over Illegal Background Check
----------------------------------------------------------------
Business Information Group reports that Trulieve was accused of
soliciting consumer reports without securing consent from the
proposed class, a violation of the FCRA. Logan Lyttle, class
representative, further claimed that these reports were utilized in
making employment decisions. Background check reports were supplied
to Trulieve by Personal Security Concepts, LLC (PSC); however, all
claims against PSC were voluntarily dismissed from the suit in June
2020.
According to a mediation report filed on September 7, 2021, Lyttle
and the certified class settled the dispute. The court is expected
to approve the settlement in the next 60 days. The settlement is
based on the claim that the employer failed to provide adverse
action notices to the class.
Employers are encouraged to review practices both internally and
those utilized by third party vendors as it relates to securing
consent in the background screening process. [GN]
U.S. IMMIGRATION: Final Judgment Entry in Ramirez Suit Partly OK'd
------------------------------------------------------------------
In the case, WILMER GARCIA RAMIREZ, et al., Plaintiffs v. U.S.
IMMIGRATION AND CUSTOMS ENFORCEMENT, et al., Defendants, Civil
Action No. 18-508 (RC) (D.D.C.), Judge Rudolph Contreras of the
U.S. District Court for the District of Columbia:
(i) granted in part and denied in part the Plaintiff's Motion
for Entry of Final Judgment and Permanent Injunction; and
(ii) denied as moot the Defendants' Motion to Issue Interim
Guidance.
Background
The case concerns violations of the Administrative Procedure Act
("APA") by the U.S. Immigration and Customs Enforcement ("ICE" or
"the agency") in connection with ICE's processing of 18-year-olds
who came to the United States as unaccompanied alien children
("UACs"). The Plaintiffs -- immigrant teenagers who entered the
United States as UACs, bring the class action against ICE, the
Acting Director of ICE, the Department of Homeland Security
("DHS"), and the Secretary of Homeland Security (collectively
"Defendants" or "Government").
When minors lacking immigration status arrive in the United States
without parents or other guardians, they are designated UACs and
are placed in the custody of the Department of Health and Human
Services, Office of Refugee Resettlement ("HHS" and "ORR"). If they
are still in custody on their eighteenth birthday, the now-adult
immigrants "age out" of HHS and ORR custody and are transferred to
ICE custody. Immigrants who undergo this transfer from HHS to ORR
are referred to by the parties as "age-outs," and a subset of these
age-outs make up the plaintiff class in the case.
Section 1232(c)(2)(B) requires that when ICE receives custody of an
age-out it "consider placement in the least restrictive setting
available after taking into account the alien's danger to self,
danger to the community, and risk of flight." The Court has found
Defendants liable for failing to follow the requirements of the
statute and found in the Plaintiffs' favor with regard to both
counts of their Amended Complaint.
In particular, the Court found that the Defendants act in a manner
that is "arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law," in violation of 5 U.S.C.
Section 706(2), when they fail to make a custody determination that
considers placement in the least restrictive setting after taking
into account the factors identified in the statute (Count I). The
Court also found that by this same conduct Defendants "fail to take
a discrete agency action that [the agency] is required to take," in
violation of 5 U.S.C. Section 706(1) (Count II).
As the Court has explained, considering placement in the least
restrictive setting available "necessarily requires making an
inquiry aimed at determining what settings are available and which
of these is the least restrictive," and the evidence and testimony
in this case demonstrated that "ICE officers are consistently
failing to take either of these steps."
The Plaintiffs originally filed the lawsuit on March 5, 2018. They
amended their complaint later that same month. The Court went on to
grant the Plaintiffs' subsequent motion for class certification,
allowing them to proceed on behalf of a class defined as: "All
former unaccompanied alien children who are detained or will be
detained by ICE after being transferred by ORR because they have
turned 18 years of age and as to whom ICE did not consider
placement in the least restrictive setting available, including
alternatives to detention programs, as required by 8 U.S.C. Section
1232(c)(2)(B)."
The Court conducted a bench trial over the course of 18 days
between Dec. 2, 2019 and Jan. 15, 2020. Following the close of
trial, each party submitted proposed findings of fact and
conclusions of law to the Court. One set of briefing, at the
Court's instruction, addressed remedies.
On July 2, 2020, the Court issued its Findings of Fact and
Conclusions of Law concerning liability in the case, finding the
Defendants liable in the ways described. A number of developments,
however, have transpired in the thirteen months since this opinion
was issued, and in the 18 months since the parties submitted their
proposed remedies briefing.
During this time, at the Court's direction, the Plaintiffs have
reviewed and proposed revisions to the Defendants' revised training
materials and Age-Out Review Worksheet ("AORW"). The parties also
engaged in mediation. See Dec. 16, 2020 Order Referring Case to
Magistrate Judge for Mediation.
The Plaintiffs have now moved for the entry of a final judgment
under Federal Rule of Procedure 54(b) and a permanent injunction,
submitting to the Court a proposed Final Judgment and Injunction,
which incorporates a number of concessions, including the
withdrawal of Plaintiffs' previous request for a Special Master and
the use of the Defendants' AORW form.
The Defendants, while supporting the issuance of a Final Judgment,
oppose the Plaintiffs' request for an injunction on the grounds
that it would "place unnecessary burdens on them and improperly
vitiate their discretion." The Defendants instead request "remand"
back to the agency for implementation of the proper remedy, which
they have submitted to the Court in the form of a proposed Final
Order.
Discussion
The Plaintiffs ask the Court to enter a Final Judgment in its favor
along with awarding specific injunctive relief. As part of that
injunctive relief, the Plaintiffs request that they be given
advanced notice of, and the right to object to, any new or
supplemental ICE policies, practices, and training, that the
Defendants be required to explain any objections to updates to
ICE's nationwide list of organizational sponsors, that the adoption
of the Defendants' Proposed AORW be limited to a six-month trial
period, and that the Plaintiffs' counsel be reimbursed for
reasonable fees for monitoring the Defendants' compliance with this
Final Judgment and Injunction.
The Defendants argue in response that an injunction is both
unnecessary, given the lack of any compliance issues to date, as
well as legally inappropriate under the APA. Instead, they urge the
Court to "remand" this matter back to ICE for implementation of the
proper remedy.
This is a somewhat confusing turn of phrase given that the
Defendants have proposed their own final order, in effect already
completing the "remand" process. And while the Defendants' proposed
order adopts much of the substance of the Plaintiffs' proposed
injunction, it has certain key differences. These include limits on
the Court's continuing jurisdiction to resolve disputes, and a
rejection of both the Plaintiffs' proposed six-month trial period
for use of the Defendants' revised AORW form and their proposed
procedures for updating ICE's Nationwide Age-Out Shelter List.
The Defendants also reserve the right to make any revisions ICE
deems fit to the training materials agreed upon by the parties as
well as the Field Office Juvenile Coordinators ("FOJCs") handbook,
and limit the role of the Plaintiffs' counsel as a monitor to only
being able to enforce compliance with the order, not the overall
statute.
Judge Contreras first addresses the general availability of
injunctive relief in the action, before resolving each of the
specific provisions of the proposed relief in dispute.
A. Limited Injunctive Relief is Appropriate in This Case
Judge Contreras initially explains why, contrary to the Defendants'
arguments, limited injunctive relief is appropriate. He then
details how the Plaintiffs have met the prerequisite conditions for
injunctive relief and, following that, he addresses the substance
of the injunction and final order to be issued.
First, Judge Contreras concludes that tailored injunctive relief --
that falls within the tightly constrained boundaries described --
is both within its authority and necessary for the Court to ensure
effective and lasting compliance with Section 1232(c)(2)(B).
Second, the Judge holds that taken together, the conduct
constitutes a pattern "of agency recalcitrance and resistance to
the fulfillment of its legal duties," a finding that strongly
supports the imposition of injunctive relief. An agency that had
shown a responsiveness to prior decisions more proactively and not
attempted to shirk its legal obligations could perhaps be counted
on to effectively implement remedial measures and police itself
without the specter of a formal injunction. But, due to these
facts, the Court continues to harbor doubts about ICE's ability to
do so in the case.
Third, Judge Contreras concludes that injunctive relief is within
its authority and appropriate due to the pervasive violations of
the statute found in the Court's July 2, 2020 opinion. Accordingly,
the Judge enjoins the Defendants from further violations of Section
1232(c)(2)(B) and require compliance with the Court's order going
forward.
B. Substance of the Final Order
The Plaintiffs have established the legal and equitable
prerequisites for the grant of a limited injunction, so Judge
Contreras turns to the substance of its relief. Recognizing that
many of the "choices at issue" to ensure ICE's compliance with
Section 1232(c)(2)(B) "require both subject-matter expertise and
judgment about the allocation of scarce resources, classic reasons
for deference to administrators," the Judge adopts the majority of
the Defendants' proposed Final Order, in effect largely granting
their request for remand for ICE to determine in the first instance
the proper discharge of its statutory obligations.
In doing so, Judge Contreras adheres to the principle that "agency
defendants should be afforded sufficient discretion in determining
the precise route they take, so long as this threshold [of
statutory compliance is met." The Defendants will, however, be
enjoined from further violations of Section 1232(c)(2)(B) and
obligated to comply with the requirements of the Court's Final
Order. The Court will retain jurisdiction to enforce and resolve
any disputes concerning the terms of, and the Defendants'
compliance with, the Court's Order and its statutory obligations
for a period of five years.
Due in no small part to the parties' diligent work in mediation
this past year, the Defendants and the Plaintiffs have already
reached agreement as to the majority of the substance of the final
relief in the case. They do, however, differ as to a few specific
points.
1. AORW Form Dispute
One remaining area of contention between the parties is their
competing versions of the AORW form. The AORW form is a document
"intended to guide the FOJC through the Age-Out custody
determination process and to provide evidence of the FOJC's
compliance with his or her obligations pursuant to 8 U.S.C. Section
1232(c)(2)(B)." The Defendants' proposed Final Order would allow
ICE to use their revised AORW form without any temporal limitation.
In contrast, the Plaintiffs' proposed injunction states that the
Defendants' revised AORW form would be used for a six-month trial
period, after which time the parties would meet and confer as to
any possible revisions, and the Court would resolve any disputes.
Judge reviews the significant issues the Plaintiffs have identified
with the Defendants' proposed AORW form. The Judge finds that the
majority of the Plaintiffs' objections, while focused on
improvements that could be made to the form, do not identify
problems that directly contravene Section 1232(c)(2)(B) or the
Court's findings as to what the statute requires.
i. Report of the Number of Days the Age-Out was in ORR Custody
The Plaintiffs first criticism takes issue with a question on the
Defendants' proposed AORW that requires FOJCs to report the number
of days the age-out was in ORR custody. he Court determined in its
Findings of Fact and Conclusions of Law that ICE's previous
practice of instructing FOJCs to view a long period of time in ORR
custody as evidence that the age-out in question is a flight risk
was often "wrong." The Defendants do not provide any justification
or alternative rationale for retaining this requirement.
Accordingly, in light of the Court's previous finding that ICE
historically used this factor to reach improper conclusions under
the statute, and the lack of any explanation from Defendants as to
any proper purpose that could justify the need for this question
going forward, Judge Contreras orders the Defendants to remove this
question from their AORW.
The Plaintiffs raise a second objection on this same topic. Section
3(c) of Defendants' AORW, which is focused on determining the
flight risk factor for the age-out in question, includes a
disclaimer reminding FOJCs that a lack of community ties or a fixed
address are not justifications to conclude that an age-out is a
flight risk. The Plaintiffs would like Defendants to add an
additional reminder that the length of time an age-out has spent in
ORR custody is also not an indication of flight risk. The
Defendants oppose this modification on the grounds that such an
"instruction is already contained in the agreed-upon Training
Slides," and unlike the lack of community ties or fixed address
factors, time in ORR custody is not otherwise part of the analysis
of flight risk, as it is not included in the available checkboxes
under this question. Because this omission is not directly
implicated by the question, nor does it contravene the dictates of
the statute or the Court's findings as to what the statute
requires, Judge Contreras defers to ICE's judgment regarding the
construction of this aspect of their AORW.
ii. Construction of Risk Factor Questions
The Plaintiffs argue next that "ICE's form asks the wrong question
and addresses the risk factors in a way that is inconsistent with
the statute and the Court's opinion. They contend that the
discussion of the risk factors in Defendants' AORW, i.e, the
questions regarding if the age-out poses a danger to self, danger
to community, or flight risk, are wrongly focused on making the
FOJC reach an ultimate determination as to each factor -- such as
whether, in absolute terms, the factor exists or does not. They
argue that this is the wrong inquiry under the statute, where the
focus should instead be on "the least restrictive setting
available," not whether the age-out meets the risk factors. They
also argue that the phrasing of the Defendants' AORW for this
question imposes an additional burden beyond the requirements of
the statute: that FOJCs show that the risk factors are not present.
The Plaintiffs claim both of these deficiencies are a result of the
Defendants' question that asks the FOJC to "[e]xplain in detail why
the Age-Out is or is not" a danger to self, danger to community, or
flight risk.
Judge Contreras is not convinced that Defendants' phrasing of these
questions violates the procedures required by Section
1232(c)(2)(B). When viewing the different sections of the
Defendants' AORW together, the Judge finds that the form is
statutorily compliant as it provides "an individualized assessment
of the proper placement for each former unaccompanied minor in
light of DHS' assessment of his or her danger to self, danger to
the community, and risk of flight."
iii. Flight Risk Question
The Plaintiffs also take issue with the way in which Defendants'
AORW addresses the flight risk analysis, arguing that it improperly
includes factors that the Court has determined are not relevant to
determining flight risk, while excluding mitigating factors that
should be considered. Judge Contreras holds that the inclusion of
these factors does not contravene the Court's previous findings as
to the procedures required under Section 1232(c)(2)(B). He also
finds that that release to a sponsor can mitigate flight risk or
alternatively so too can release pursuant to ICE's ATD program or
an ICE bond. Finally, he finds that while he declines to instruct
ICE how to specifically structure this question, he does need to
include a consideration of these mitigating factors previously
recognized by the Court as part of the flight risk analysis.
iv. Placement Options
The Plaintiffs propose three substantive modifications to the
section of the Defendants' AORW form that discusses an age-out's
placement options. They argue first that this construction is
impermissible because it does not ask whether each available
placement option was "considered." Second, they argue that the
Defendants' use of the term "appropriate" in its phrasing of these
questions is an improper standard "that is not used in the statute,
not defined, and includes factors and considerations that go beyond
those required by the statute." The Plaintiffs' final criticism is
that the Defendants' proposed AORW does not require the FOJCs to
explain, if selecting a detention placement, why this placement was
selected and why the FOJC concluded that it was "the least
restrictive setting available.
Judge Contreras disagrees with the Plaintiffs' first argument that
because the Defendants do not explicitly use the phrase
"considered" in each question, they are somehow ignoring this
critical part of the analysis. This argument is without merit. As
to the second argument, the Judge concludes that the phrasing does
not violate the statue or the Court's previous findings as to what
the statute requires. With respect to the Plaintiffs' third
argument, the Judge agrees that requiring an explanation justifying
detention may indeed help prevent detention from becoming the
default, the explanation the Plaintiffs request is not statutorily
required.
v. Plaintiffs' Other Critiques
The Plaintiffs raise a number of other criticisms of the
Defendants' AORW form. Taken together, these criticisms form an
argument that the Defendants' form could be structured differently
to create more accurate or comprehensive answers, or provide less
of a burden on FOJCs. But Judge Contreras finds that the Plaintiffs
make no specific arguments as to how these perceived deficiencies
would violate Section 1232(c)(2)(B) and rely in part on assumptions
of deficiencies that have not yet come to pass.
The Judge therefore directs the Defendants to make the revisions to
their AORW delineated, in light of the Court's conclusion that
these issues run afoul of Section 1232(c)(2)(B) and the procedures
the Court has found to be required under the statute. These two
modifications include: (1) removing the question concerning the
number of days the age-out was in ORR custody, and (2) adding the
identified mitigating factors to the form's discussion of the
flight risk inquiry.
2. Updates to ICE's National Age-Out Shelter List
The Plaintiffs also request specific injunctive relief regarding
ICE's maintenance of its nationwide list of organizational
sponsors. The parties agree that going forward ICE will consider
organizational sponsors proposed by the Plaintiffs to add to the
list and will update its list every six months. The Plaintiffs,
however, also propose that the Court imposes two additional
requirements on ICE, both of which are contested by the Defendants.
The first requirement is that ICE provide the Plaintiffs an
explanation for the rejection of any organizational sponsors they
propose (which can then be challenged with the Court), while the
second requirement is that each ICE field office maintain its own,
office-specific list of organizational sponsors that will accept
age-outs from that office's area of responsibility. The Defendants
argue that the first obligation is barred by the APA, contending
that the statute "does not permit the Plaintiffs to dictate or
challenge Defendants' exercise of agency discretion," while they
oppose the ICE office-specific list requirement as "repetitive and
unnecessary."
Judge Contreras acknowledges that the Plaintiffs' concerns about
the maintenance of the nationwide list are not unreasonable in
light of ICE's past behavior allegedly rejecting potential
organizational sponsors without any legitimate basis or for
inaccurate reasons. While the Court has not made specific findings
of ICE's wrongdoing in this respect, meaning imposition of
injunctive relief at this time would be inappropriate, the Judge
reminds both parties that the Court is retaining jurisdiction for a
reason. If the Plaintiffs believe that ICE is rejecting sponsors in
bad faith, this is the type of behavior that should be brought to
the Court's attention.
3. Advance Notice of Revisions to Training Materials and Policy
Guidance
The next area of dispute between the parties concerns the
Plaintiffs' contention that they should receive advance notice, and
have the right to review and voice objections, to any revisions of
ICE's policy guidance and training materials pertaining to Section
1232(c)(2)(B). Any disputes that subsequently arise would then be
resolved by the Court pursuant to a stated dispute resolution
process.
The Plaintiffs argue that these measures are necessary to prevent
the Defendants from adopting or revising policy guidance or
training to circumvent statutory compliance. The Defendants respond
by asserting that this is another requirement that "goes beyond the
relief permitted under the APA," and that it is generally
unnecessary given that Plaintiffs could "raise their concerns with
ICE at any time" or file a motion to enforce from the Court.
Judge Contreras declines to enter such an intrusive obligation on
the Defendants at this time without a more extensive and current
record of misconduct by ICE. Such a remedy -- in essence requiring
an outside group to have input and approval over an agency's
policymaking -- would constitute a severe imposition on ICE's
discretion, the Judge opines.
Also, Judge Contreras says, the Plaintiffs are not left without
options if ICE does indeed attempt to adopt or revise policy
guidance or training to circumvent statutory compliance, as the
Plaintiffs fear. This is because they retain the general authority
to both "make suggestions and/or recommendations to ICE as to
further steps it should take to ensure its compliance with this
Order and 8 U.S.C. Section 1232(c)(2)(B)" and "to raise with the
Court any issues or concerns with respect to ICE's compliance with
implementation of this Order after remand that Plaintiffs' counsel
is not able to resolve with ICE." And should the Defendants fail to
comply with their statutory obligations or the Court's order going
forward, the Judge reminds both parties that not only is ICE
enjoined from committing such violations, but the Court has
retained jurisdiction, and will ensure Defendants comply with their
legal responsibilities.
4. Reimbursement of Plaintiffs' Counsel for Monitoring and
Enforcement Responsibilities
The parties final dispute concerns the provision of attorney's fees
for the monitoring of future compliance with the Court's order.
Both parties agree that the Plaintiffs will, in effect, serve in
the place of an independent monitor to enforce compliance with the
final order. To this end, the Defendants have agreed to provide the
Plaintiffs with monthly reports from ICE documenting its compliance
with the statute.
The parties disagree, however, as to how the Plaintiffs' counsel
should be compensated for this role. The Plaintiffs request that
their counsel be reimbursed for their routine review and monitoring
of the Defendants' periodic reporting and completed AORWs, with
fees and expenses to be itemized and described in a quarterly
statement and paid out according to the Laffey Index. The
Defendants respond, not by disputing the general premise that the
Plaintiffs deserve compensation for this responsibility, but by
requesting that the specifics of the Plaintiffs' fees for
monitoring future compliance be "tabled" until the Plaintiffs file
a motion for recovery of their past fees under the Equal Access to
Justice Act ("EAJA"), 17 28 U.S.C. Section 2412(d)(1)(A) et seq.,
arguing, oddly, that this issue is "unrelated to any injunction or
remand that the Court may order."
But by Judge Contreras' estimation, this issue is a critical piece
of final relief in the case, and consequently finds he must address
this issue even without the benefit of robust briefing from the
Defendants. The Judge holds that the Final Judgment and Injunction,
at the parties' agreement, vests monitoring responsibilities with
the Plaintiffs' counsel.
Having concluded that the Plaintiffs' counsel is entitled to
reasonable compensation for the monitoring role that they will be
undertaking, the only question that remains is that of the proper
rate of compensation. The Plaintiffs have requested compensation
for their monitoring duties not under the standard EAJA rate, which
is set forth in 28 U.S.C. Section 2412(d)(2)(A) and capped at $125
per hour (plus any cost of living or special factor adjustments),
but rather under the more generous Laffey Matrix.
However, Judge Contreras finds that the Plaintiffs have not
provided the Court any examples (nor could the Court find any) of
its use in this manner to govern compensation for post-judgment
monitoring in a case in which the request for reasonable fees would
fall under EAJA, rather than any other fee-shifting statute. A
review of the applicable law shows that the Laffey Matrix has only
been applied to EAJA cases when enhanced fees -- such as for bad
faith -- applied. Accordingly, absent any support for the
Plaintiffs' counsel's request to be compensated at the Laffey
Matrix rate, Judge Contreras finds the EAJA rate to be the
appropriate rate of reimbursement for the Plaintiffs' counsel's
work completing their monitoring duties.
Conclusion
For the foregoing reasons, Judge Contreras granted in part and
denied in part the Plaintiff's Motion for Entry of Final Judgment
and Permanent Injunction, while he denied as moot the Defendants'
Motion to Issue Interim Guidance. An entry of final judgment and a
permanent injunction consistent with the Memorandum Opinion is
separately and contemporaneously issued.
A full-text copy of the Court's Sept. 21, 2021 Memorandum Opinion &
Order is available at https://tinyurl.com/mc6set5j from
Leagle.com.
UNITED STATES: Emergency Bid for TRO in Oldbaker v. ICDC Denied
---------------------------------------------------------------
In the case, YANIRA YESENIA OLDAKER, et al., Petitioners-Plaintiffs
v. TAE D. JOHNSON, et al., Respondents-Defendants, Case No.
7:20-CV-00224 (WLS) (M.D. Ga.), Judge W. Louis Sands, Sr., of the
U.S. District Court for the Middle District of Georgia, Valdosta
Division, denied as moot without prejudice the
Petitioners-Plaintiffs' Emergency Motion for Temporary Restraining
Order and Petition for Writs of Habeas Corpus Ad Testificandum.
Background
The case is a hybrid habeas/civil action brought by 13 women
immigrants ("Petitioners") who were detained at Irwin County
Detention Center ("ICDC") while awaiting deportation. The
Petitioners claim that, while detained, they were subjected to
medical and other abuse -- most notably, unnecessary and
nonconsensual gynecological procedures by Respondent-Defendant Dr.
Mahendra Amin that left some Petitioners unable to have a child.
The Petitioners further claim that, when they complained publicly
about this and other abuse, ICDC staff retaliated against them and
the Immigrations and Customs Enforcement Agency ("ICE") tried to
prevent them from speaking publicly by hastily executing their
deportations.
On Dec. 21, 2020, the Petitioners filed a 160-page "Consolidated
Amended Petition for Writ of Habeas Corpus and Class Action
Complaint for Declaratory and Injunctive Relief and for Damages."
The Consolidated Petition names the 13 Petitioners-Plaintiffs and
adds numerous more Respondents-Defendants ("Respondents"),
including Patrick Musante in his individual and official capacities
as Assistant Field Office Director ("AFOD") of the Atlanta ICE
Field Office, Ana Rivera in her individual and official capacities
as the Medical Director of the ICE Health Service Corps, ICDC, the
Hospital Authority of Irwin County, and Dr. Mahendra Amin, among
others.
The Complaint brings, in total, 21 claims for relief. The first is
a habeas claim seeking the Petitioners' release from ongoing
unlawful detention. The others are civil claims seeking monetary,
declaratory, and injunctive relief from all the Respondents.
Several claims are directed at ICE, including a Bivens claim for
selective and discriminatory removal in violation of the First
Amendment (Second Claim), a Bivens claim for punitive conditions of
confinement and deliberate indifference in violation of the Fifth
Amendment (Fifth Claim), claims under the Administrative Procedures
Act ("APA") for an agency's failure to follow its own rules (Ninth
and Tenth Claims), and claims under 42 U.S.C. Section 1985(2) for
unlawfully conspiring to deter a witness from testifying or
participating in a judicial proceeding. The other civil claims are
directed at ICDC, the Hospital, and their staff, including, among
other things, claims for First Amendment retaliation, punitive
conditions of confinement and deliberate indifference in violation
of the Fourteenth Amendment, conspiracy to deter participation in
judicial proceedings in violation of 42 U.S.C. Section 1985(2),
breach of contract, medical battery, medical malpractice, and
intentional and negligent infliction of emotional distress.
The Petitioners simultaneously filed the instant "Emergency Motion
for Temporary Restraining Order and Petition for Writs of Habeas
Corpus Ad Testificandum" asking for an order "requiring
Respondents-Defendants to immediately cease any and all forms of
retaliation against Petitioners detained in the custody of ICE,
including deportation, pending the resolution of this lawsuit."
They further seek "writs of habeas corpus ad testificandum
compelling ICE to ensure the availability of detained Petitioners
for any further proceedings, including trial, or in the
alternative, to order the release of detained Petitioners during
the pendency of the lawsuit."
After receiving extensions, the federal Respondents filed a
response brief on Feb. 18, 2021. These Respondents also moved to
stay the case for 90 days, which the Court will address separately.
The Petitioners filed a Reply to the Federal Respondents' response
on March 4, 2021. The Court also received three amici curiae
briefs, in support of Petitioners' Motion, on March 9 and 15, 2021.
On March 16, 2021, the Court held an in-person hearing on the
Motion. After the transcript of the hearing was filed, the
Petitioners and the Federal Respondents timely filed post-hearing
supplemental briefs. On June 8, 2021, the Federal Respondents filed
a Notice of New Facts in Opposition to Petitioners' Motion, to
which the Petitioners responded on June 10, 2021. On June 21, 2021,
the Federal Respondents filed a Corrected notice of New Facts in
Opposition to Petitioners' Motion (Doc. 150). The Court has also
since resolved Petitioners' Motions to Seal Various Documents
related to the TRO Motion and to Proceed by Pseudonym. Thus, the
Petitioners' Motion is ripe for review.
Discussion
The Motion asks the Court to:
(1) issue a writ of habeas corpus ad testificandum compelling
ICE to ensure the availability of detained Petitioners for any
further proceedings, including trial, or in the alternative, to
order the release of the detained Petitioners during the pendency
of this lawsuit;
(2) require Federal Respondents to immediately cease any and
all forms of retaliation against the Petitioners detained in the
custody of ICE, including use of force, solitary confinement, and
denial of privileges pending the resolution of the lawsuit; and
(3) require Federal Respondents to immediately cease
retaliatory deportations of Petitioners pending resolution of the
lawsuit.
The Respondents argue that the Motion is moot because the
Petitioners have been released from detention, such that the Court
can no longer grant meaningful relief. Second, they argue that the
alleged harm is not capable of repetition yet evading review
because the "Petitioners are not at imment risk of being
re-detained," and even if they were re-detained, the "Petitioners
would have time to seek emergency relief."
Considering the law and the facts of the case, Judge Sands agrees.
First, the Judge finds that a habeas petition is rendered moot upon
the petitioner's release unless the petitioner is challenging (a)
the conditions of release or (b) the validity of the conviction or
detention, such that a "collateral consequence" of the invalid
detention still exists after the petitioner is released on
supervised release. Neither is being challenged in the case. The
Judge says, the Petitioners do not contest their detainability,
removability, or the conditions of their release. Rather, they
challenge the retaliatory conditions of confinement at ICDC and
their attempted deportations by ICE.
Moreover, Judge Sands finds that "past exposure to illegal conduct
does not constitute a present case or controversy involving
injunctive relief if unaccompanied by any continuing, present
adverse effects." Ten months have now passed since the case was
brought and the first Emergency Motion for TRO was filed by
Petitioner Oldaker. All the Petitioners were released from custody
several months ago due to an injunction entered in a separate case,
and, in addition, all of the Petitioners who properly requested an
administrative stay of removal from ICE were granted such a stay,
except one who was deemed a low priority for removal in the Miami
office. To-date, there is no evidence providing a reasonable
expectation that the Petitioners are under a real and immediate
threat of redetention or deportation.
Even if Judge Sands could find that the Petitioners remain under a
real and immediate threat of retaliatory deportation, the exception
to mootness only applies where "the challenged action is in its
duration too short to be fully litigated prior to its cessation or
expiration." In the case, the record amply demonstrates that if ICE
were to redetain a Petitioner for deportation, the Petitioners'
counsel could promptly move the Court at that time for an
injunction. Counsel has done so numerous times in the case and also
simultaneously filed Petitions for Writ of Habeas Corpus in new
civil actions, and the Court promptly set the motions for a
hearing. It is, thus, clear that the Petitioners' counsel could
easily file a motion for a TRO in this pending case.
The Petitioners further argue that the "voluntary cessation"
exception to mootness applies and that the "Defendants have not met
the 'formidable burden of showing that it is absolutely clear the
allegedly wrongful behavior could not reasonably be expected to
recur.'" However, Judge Sands holds that that is not the standard
that applies to government actors. The law is well-established that
"government actors receive the benefit of a rebuttable presumption
that the offending behavior will not recur;" whereas "private
citizens are not entitled to this legal presumption." Indeed, to
obtain an injunction, the plaintiff must first "establish by a
preponderance of the evidence that this form of equitable relief is
necessary."
In the case, the Respondents have explained the basis of their
process for scheduling the deportations of the Petitioners in the
past, have long-since released all Petitioners, have stayed the
deportions of Petitioners who properly requested a stay (to the
Atlanta office), have stopped detaining females at ICDC, and
Musante has sworn that ICE has no present intentions to redetain
any of the Petitioners. Furthermore, the case is not being
dismissed at this time, such that any future misconduct by ICE can
easily be brought before the Court for review. Thus, Judge Sands
cannot find that there is a substantial likelihood that the
offending conduct will recur if the Petitioners' Motion for a TRO
is denied.
Having concluded that the Motion for TRO is moot, Judge Sands
cannot further address the constitutional and other arguments
raised therein at this time.
Conclusion
Because he cannot grant any meaningful relief, Judge Sands denied
as moot without prejudice the Petitioners' "Emergency Motion for
Temporary Restraining Order."
A full-text copy of the Court's Sept. 17, 2021 Order is available
at https://tinyurl.com/tw6b8fa9 from Leagle.com.
UNITED STATES: Faces Class Suit Over Army's Housing Entitlements
----------------------------------------------------------------
On September 9, 2021, a proposed class action lawsuit commenced
against the United States of America by Army Reservists (RC) who
were unlawfully denied basic allowance for housing (BAH), overseas
housing allowance (OHA), endured wage garnishments, and were
subjected to criminal probes. Gulley, et al. v. United States of
America, Court of Federal Claims case #21-1825C, outlines how the
Army's denial of housing entitlements placed likely thousands of
its soldiers in a position of tremendous financial hardship during
periods in which they were activated to support the defense of the
Nation. In 2016, the Army arbitrarily and without notice altered
its interpretation of the Joint Travel Regulation (JTR), the
governing regulation for the entitlements in dispute. The revised
interpretation blatantly ignored clear language to justify the
Army's withholding of RC members' housing entitlements while
deployed. Even worse, the interpretation was applied retroactively,
suddenly indebting soldiers for thousands, some face debts upwards
of $200,000.
This battle against the Army began nearly three years ago, when
seven soldiers filed suit in Wolfing, et al. v. United States of
America, Court of Federal Claims case # 18-523C. After three years
of weaving through the court system, the Army was provided the
opportunity to administratively "do the right thing." Through their
highest administrative branch, the Army Board of Corrections for
Military Records (ABCMR), the Army officially conceded that the
misreading of the JTR by their finance office improperly withheld
hundreds of thousands of dollars to the named Plaintiffs in Wolfing
for lost housing benefits, prompting wrongful garnishments of
soldiers' wages and improper criminal probes.
"The ABCMR ruling is just the beginning of our fight for these
soldiers," says Patrick Hughes co-founder of Patriots Law Group, a
law firm founded by Air Force JAG veterans to serve the unique
needs of the military community. Mr. Hughes continued, "The ABCMR
established the actions were wrong, but the Army has not committed
to finding every honorably serving soldier who had their lives
turned upside down, who faced threats of punishment, and who live
with debts that will take years to repay. The Gulley lawsuit is
about holding the Army accountable for the Army's gross negligence
and forcing the service to make every soldier affected whole."
Schedule a consultation with Patriots Law Group if you believe you
were affected. Contact us at 301-952-9000 or through our website:
https://www.patriotslawgroup.com/practice-areas/bah-lawsuit/.
Patriots Law Group is a veteran owned general practice law firm
that provides legal services to the military and veteran
communities. PLG was formed by attorneys who served in the military
and understand the unique circumstances that service members and
their families face when a legal issue arises. The attorneys at PLG
have service in their DNA and have forged their values through
years of military training and experience. PLG has attorneys
experienced in military justice, family law, criminal defense,
federal litigation, courts-martial, and more.
Learn more about Patriots Law Group at www.patriotslawgroup.com.
[GN]
UNITEDHEALTHCARE INSURANCE: Rule 706 Expert Named in Caldwell Suit
------------------------------------------------------------------
District Judge William Alsup of the U.S. District Court for the
Northern District of California issued an order appointing an
expert under Rule 706 of the Federal Rules of Evidence in the
lawsuit titled MARY CALDWELL, Plaintiff v. UNITEDHEALTHCARE
INSURANCE COMPANY, et al., Defendants, Case No. C 19-02861 WHA
(N.D. Cal.).
The Court appoints Dr. Karen Herbst, with her consent, as an expert
pursuant to Rule 706. Appended to this Order are the instructions
required by Rule 706(b) that the Court proposes to give Dr. Karen
Herbst and her curriculum vitae.
Judge Alsup noted that a phone conference was set for Sept. 14,
2021, at 7:45 a.m., with counsel and Dr. Herbst to introduce her
and allow counsel to inquire about potential conflicts. If there
was no objection from the parties by Sept. 21, the Court was to
provide her with a copy of the instructions the following day.
The Court provides these instructions to the court-appointed
expert:
1. You have been chosen by the Court to serve as a neutral,
independent expert under Federal Rule of Evidence 706. Your
role is to assist the undersigned judge by providing an
independent medical evaluation regarding the settlement of
an ERISA class action regarding insurance coverage for the
treatment of lipedema using liposuction. Your evaluation
will be used to help the judge decide the extent to which
the proposed medical criteria for the treatment of lipedema
using liposuction will be fair and reasonable (or not) to
members of the class dealing with United in the future;
2. Appended to these instructions is the set of proposed new
criteria that the Court wants you to evaluate. You may
acquire from the parties any additional information that
you need. If you wish to, you may also conduct your own
independent research to aid your consideration.
3. The parties have submitted their justification for the
preliminary settlement to the Court. The parties' experts
have submitted reports setting forth their opinions,
including a declaration from plaintiff's expert stating
that the new medical criteria are reasonable. The Court
anticipates the following schedule. If you have any
conflicts with it, please let the Court know as soon as
possible:
a. By October 26, you will prepare a report for the Court
in the form of a sworn declaration. The main question is
the extent to which the new proposed criteria will deny
lipedema treatment to deserving patients. This is
important because the new criteria, if accepted by the
Court, will be binding on all class members and they
will not be permitted to challenge the criteria in the
future. Thus, if there is some aspect of the new
proposed criteria that will be problematic, the Court
needs to know before the criteria are approved; and
b. After your report, if the parties wish to take your
deposition, you must sit for a deposition no later than
November 23. The deposition will last no more than seven
hours -- either all on one day or spread out over the
course of two days, as you prefer. The deposition will
allow the parties' lawyers to ask you questions;
5. Apart from administrative issues and questions, all
communications between you and the Court will be in the
presence of the parties' lawyers. You can reach the Court
by email if questions come up, if you need more materials,
or if you encounter difficulties in accomplishing your
assigned tasks. Please contact the undersigned judge's
Courtroom Deputy, Angela Diienno, at
whacrd@cand.uscourts.gov; and
6. Each party will be ordered to pay 50 percent of your bill
according to Federal Rule of Evidence 706(c)(2) (though the
payment cannot be guaranteed by the judge). The undersigned
judge will order the parties to compensate you at the
hourly rate of $300. Please send your invoices to the Court
via email to whacrd@cand.uscourts.gov.
A full-text copy of the Court's Order dated Sept. 13, 2021, is
available at https://tinyurl.com/69zds2k from Leagle.com.
UNITEDHEALTHCARE INSURANCE: Vigdor Suit Removed to W.D.N.C.
-----------------------------------------------------------
The case styled CYNTHIA PUSEY VIGDOR; ROBERT VIGDOR; VANESSA
KROMBEEN; VASHISTA KOKKIRALA; JESSICA HUCK; RICHARD SMITHSON;
RONALD EASTER; and PROVIDENCE ANESTHESIOLOGY ASSOCIATES, P.A.,
individually and on behalf of all others similarly situated v.
UNITEDHEALTHCARE INSURANCE COMPANY; UNITEDHEALTHCARE OF NORTH
CAROLINA, INC.; UMR, INC., UNITEDHEALTH GROUP INCORPORATED, Case
No. 2021-cvs-13028, was removed from the Superior Court Division
for Mecklenburg County, North Carolina, to the U.S. District Court
for the Western District of North Carolina on September 29, 2021.
The Clerk of Court for the Western District of North Carolina
assigned Case No. 3:21-cv-01693-MMA-MSB to the proceeding.
The case arises from the Defendants' alleged refusal to pay the
Plaintiffs' bills for a covered procedure under their health
benefit plans pursuant to the Employee Retirement Income Security
Act of 1974.
Providence Anesthesiology Associates, P.A. is an independent group
of physicians, headquartered in Charlotte, North Carolina.
UnitedHealthcare Insurance Company is an insurance company based in
Minnesota.
UnitedHealthcare of North Carolina, Inc. is an insurance company
based in North Carolina.
UMR, Inc. is an insurance company based in Wisconsin.
UnitedHealth Group Incorporated is an American multinational
managed healthcare and insurance company based in Minnetonka,
Minnesota. [BN]
The Defendants are represented by:
Emily C. McGowan, Esq.
ALSTON & BIRD LLP
101 S. Tryon Street, Suite 4000
Charlotte, NC 28280
Telephone: (704) 444-1027
Facsimile: (704) 444-1100
E-mail: emily.mcgowan@alston.com
- and –
Matthew P. McGuire, Esq.
ALSTON & BIRD LLP
555 Fayetteville Street, Suite 600
Raleigh, NC 27601
Telephone: (919) 862-2200
Facsimile: (919) 862-2260
E-mail: matt.mcguire@alston.com
VEGASPACKAGE.COM INC: Court Decertifies Class in Fisher TCPA Suit
-----------------------------------------------------------------
In the case, Nick Fisher, Plaintiff v. TheVegasPackage.com, Inc.
and Douglas Douglas, Defendants, Case No. 2:19-cv-01613-JAD-VCF (D.
Nev.), Judge Jennifer A. Dorsey of the U.S. District Court for the
District of Nevada granted Fisher's Motions to Decertify Class and
Dismiss.
Mr. Fisher sues TheVegasPackage.com and its president Douglas
Douglas under the Telephone Consumer Protection Act, 47 U.S.C.
Section 277, et seq., because they called him -- using an
autodialer and without his prior, express consent -- to sell a Las
Vegas vacation package.
In April 2021, Judge Dorsey granted Fisher's motion to certify the
case as a national class action on behalf of similarly situated
recipients of unsolicited calls from Vegas Package.
Mr. Fisher now moves to decertify the class and voluntarily dismiss
the case because the Defendants' refusal "to appear or participate
in this case in any way" has left him "no realistic way to pursue
his class claims." The time to oppose these motions passed without
response or request to extend the deadline to file one.
And with good cause appearing, Judge Dorsey granted the Motions to
Decertify Class and Dismiss. The class is decertified. The action
is dismissed without prejudice, each side to bear its own fees and
costs. The Clerk of Court is directed to close the case.
A full-text copy of the Court's Sept. 15, 2021 Order is available
at https://tinyurl.com/rtcttv3p from Leagle.com.
VOLTAGE PICTURES: Bereskin & Parr Attorneys Discuss Court Ruling
----------------------------------------------------------------
Naomi Zener, Esq., Tamara Winegust, Esq., and Mitchel Fleming,
Esq., of Bereskin & Parr LLP, in an article for Mondaq, report that
the Federal Court of Appeal (FCA) has re-opened the door for
copyright owners to seek remedies against a class of defendants for
their direct infringing behaviour based on the identification of IP
addresses from which the infringing activity occurred. In Salna v.
Voltage Pictures, LLC, 2021 FCA 176 ("Voltage"), Justice Rennie, on
behalf of the Court, set aside a 2019 decision of the Federal Court
(FC) in Voltage Pictures, LLC v Salna 2019 FC 1412, which declined
to certify a proposed "reverse class-action" for copyright
infringement over a BitTorrent network. Of particular note, the FCA
decision permits the rights holders to advance the novel claim that
users of BitTorrent sites have "authorized infringement" through
the use of that technology. Moreover, it leaves open the
possibility of rights holders using the "notice-and-notice" regime
to have ISPs send litigation updates to customers identified as
defendants in the proceeding (the regime provides Internet Service
Providers (ISPs) with a defence to copyright infringement claims
alleged to have occurred on their services where the ISP has been
notified of the infringement and passed that notice to the alleged
infringer). While the Federal Court rejected the plan as
overburdening ISPs and appropriating Parliament's intentions with
the regime, the FCA found such conclusions "premature and
speculative"1 as it required an exercise in statutory
interpretation that the Lower Court did not conduct.
From a copyright perspective, the Appeal decision confirms that
"reverse class actions" remain a viable enforcement tool for
copyright owners to address infringement by thousands of individual
acts made by thousands of individual actors, but where the relief
available against a single infringement/infringer may not justify
investing the resources necessary for litigation. Interestingly,
the Court's comments suggest reverse class-actions may also be
beneficial for defendants who, if able to distribute fees related
to mounting a defence among the class members, may be more inclined
to obtain a decision on the merits.
In this way, the decision appears to recognize concerns raised by
policymakers, rights holders, and users since the inception of the
public internet in the late 1990s -- how to best and most fairly
permit copyright owners to seek compensation when their rights are
violated while acknowledging that the proliferation of
internet-connected digital devices can facilitate unchecked
reproduction of copyright works by any user.
Background
The Plaintiffs (Voltage Pictures and other production companies)
sought certification of a class of defendants whom, they alleged,
violated the Plaintiffs' copyright in certain motion pictures that
were being uploaded to and downloaded from the internet by
thousands of users of BitTorrent websites. The Plaintiffs advanced
claims for both direct infringement and secondary infringement, as
well as that the defendant's actions "authorized infringement".
The Plaintiffs brought a motion to certify the defendant class with
Mr. Salna as the representative defendant. The Federal Court denied
certification. In the decision, discussed here, the Lower Court
found the Plaintiffs failed to show any of the five criteria for
certifying a class proceeding under Rule 334.16(1)2 of the Federal
Courts Rules were met. Of particular focus for the Court were gaps
in the evidence left by the Plaintiffs' forensics analysis (i.e.,
how they identified the defendants through IP addresses), and
whether the Plaintiffs plead any proper causes of action for direct
or secondary infringement.
The Plaintiffs appealed, and the FCA overturned.
Federal Court of Appeal Decision
The Appeals Court found reversible errors in the Lower Court's
rejection of each of the five certification criteria. The Appeals
Court substituted its own conclusions on three of the criteria --
sufficiency of the pleadings; identifiable class; whether there are
"common questions of law or fact" as between the class members --
and returned the matter to the trial division for reconsideration
on the two remaining criteria -- i.e., if a class proceeding is the
preferable procedures; and the existence of an appropriate lead
defendant.
On the first criterion -- whether the pleadings disclose a
reasonable cause of action -- the FCA noted the correct approach to
this criterion is to consider whether the pleadings disclosed a
reasonable cause of action, assuming that the facts as plead are
true. The Federal Court committed an error by delving into the
merits of the Plaintiffs' arguments rather than simply reading the
pleadings. The Plaintiffs provided sufficient evidence to support
the claim for direct infringement, and that the proposed class
members had sufficient control over their internet account and
associated devices to have authorized the alleged primary
infringements. Of note, with respect to the "authorizing
infringement" claim, the FCA noted the Supreme Court's comments in
Society of Composers, Authors & Music Publishers of Canada v.
Canadian Assn. of Internet Providers, 2004 SCC 45, that suggested
an internet intermediary may attract liability for authorizing
infringement in some circumstances, meant this theory of
infringement could be pursued as a cause of action and considered
by a judge at trial. It was "a novel but arguable claim"3.
On the second criterion -- whether there is an identifiable class
of two or more persons -- the FCA noted the standard applied to
this criterion is low, there need only be "some basis in fact", and
found the Lower Court improperly applied a higher "balance of
probabilities" standard. The Appellate Court applied the correct
standard and found the Plaintiffs' evidence showed the proceeding
would not "collapse for want of a 'class of two or more persons"4
thus, the criterion was met.
On the third criterion -- whether there are common questions of
fact and law -- the FCA found the Lower Court incorrectly focused
on whether the answers to the "questions in common" advanced by the
Plaintiffs would be the same, rather than whether the questions
themselves existed at all. The Appellate Court noted that the
possibility of the misidentification of a defendant did not bar the
finding of a "common question", nor did the multitude of individual
factual assessments necessary when dealing with a class proceeding
-- misidentification would properly be dealt with as a defence at
trial, while the impact of individual fact assessments could be
managed by the flexibility inherent to the Federal Court Rules,
such as the creation of subclasses, and court-supervised individual
assessments.
For the last two criteria -- whether a class proceeding is the
preferable procedure for the just and efficient resolution of the
common questions of law or fact and whether there is a suitable
representative respondent -- the Appellate Court found insufficient
evidence on the record to determine whether class proceedings were
the preferable procedure and if Mr. Salna was a suitable
representative defendant. It thus sent these questions back to the
Federal Court for redetermination. Of note, the Appellate Judges
highlighted that it was wrong to presume (as the Federal Court did)
that the proposed representative defendant had no incentive to
defend the litigation because their "worst day in court" would be
capped at $5000: "[Such] logic butts against the raison d'être of
class proceedings, where it is "precisely when individual damage
awards may be low that a class action becomes the preferable, and
sometimes the only mechanism that truly ensures access to
justice.".
Stay tuned for further developments in this case as it returns to
the Federal Court.
Footnotes
1 Salna v. Voltage Pictures, LLC 2021 FCA 176 at 131
2 (a) the pleadings disclose a reasonable cause of action;
(b) there is an identifiable class of two or more persons;
(c) the claims of the class members raise common questions of law
or fact, whether or not those common questions predominate over
questions affecting only individual members;
(d) a class proceeding is the preferable procedure for the just and
efficient resolution of the common questions of law or fact; and
(e) there is a representative plaintiff or applicant who
(i) would fairly and adequately represent the interests of the
class,
(ii) has prepared a plan for the proceeding that sets out a
workable method of advancing the proceeding on behalf of the class
and of notifying class members as to how the proceeding is
progressing,
(iii) does not have, on the common questions of law or fact, an
interest that is in conflict with the interests of other class
members, and
(iv) provides a summary of any agreements respecting fees and
disbursements between the representative plaintiff or applicant and
the solicitor of record.
3 Salna v. Voltage Pictures, LLC, 2021 FCA 176 at 83.
4 Salna v. Voltage Pictures, LLC, 2021 FCA 176 at 98.[GN]
VOLTAGE PICTURES: Discusses Ruling in Copyright Infringement Suit
-----------------------------------------------------------------
Amrita V. Singh, Esq., and Dian P. Thompson, Esq., of Marks &
Clerk, disclosed that in the 2019, a group of production companies
("Voltage") sought certification of a respondent class proceeding
alleging copyright infringement of five of its films by a group of
defendants (commonly known as a "reverse class action"). Voltage
alleged that numerous parties, including the named proposed
representative defendants had infringed its works by sharing and
downloading bittorrent files relating to the works, online.
The Federal Court of Canada ("FC") dismissed Voltage's
certification motion, and held that it did not meet the criteria to
merit a certification proceeding pursuant to the Federal Courts
Rules. The FC's decision matter was appealed by the representative
defendants on the matter of costs, and cross-appealed by Voltage as
dismissal of its motion. The issues on appeal were 1) whether the
FC had made a reviewable error in refusing to certify the class
action because of its novelty, and 2) whether the FC erred in its
decision to award costs and refusal to release the security for
costs?
On September 8, 2021, the Federal Court of Appeal ("FCA") held that
the FC made reversible errors in denying Voltage's certification
motion, referring the matter back to the FC. In its decision, the
FCA reviewed in detail the frailties of the FC's analysis of each
of the certification criteria under the Rules.
1. Whether the pleadings disclose a reasonable cause of action
The FCA found that whether the proceeding discloses a reasonable
cause of action was not res judicata as a result of the Norwich
proceeding that had made its way to the Supreme Court of Canada,
since the issue was not opposed in that proceeding, the question
was to be considered by the Court. The FCA held the FC erred in its
application of the test under this criterion. Rather than taking
the facts pled to be true, the FC had placed an undue burden on
Voltage to prove that internet account subscribers were so-called
"direct" infringers, and had delved into the merits of the
"authorization" argument rather than considering whether Voltage
should be precluded from advancing it. The FCA held that Voltage
had shown it has a novel but arguable claim, and pled the necessary
facts to support claims for direct and authorizing infringement.
However, the FCA held Voltage had not successfully pled the facts
needed to ground the knowledge requirement of its claim of
secondary infringement.
2. There is an identifiable class of two or more persons
The FCA reaffirmed that the standard applicable to the remaining
certification criteria is whether the party moving for
certification has shown "some basis in fact" supporting an
objective class definition that has a rational connection to the
common issues and is not dependent on the outcome of the
litigation.
The FCA found that the FC had erred by substituting the requirement
that there be "some basis in fact" of a class of two or more
people, with a requirement of evidence on a civil standard. As the
standard is not intended to be onerous, and the identity and number
of class members need not be known at the time of certification,
"applying the correct test to the certification record before the
[FC], the evidence was sufficient to show that the proceeding will
not collapse for want of a 'class of two or more persons'."[1]
However, the FCA noted that the paucity of evidence on the size of
the class would create issues downstream in the analysis of the
choice of procedure.
3. There are common Questions of Fact and Law
The FCA found that contrary to its guidance in prior class
certification case law, the FC had focused on how the outcomes of
various questions may be different for various proposed class
members, rather than whether the resolution of a question is common
to the class. Class proceeding rules provide courts with the
flexibility to resolve individual issues that may arise, including
the ability to create subclasses based on similar fact scenarios,
the ability for a court-supervised individual assessment process,
or even decertification if appropriate.
4. A class proceeding is the preferable procedure for the just and
efficient resolution of the common questions of law or fact
At this stage, the FCA found that the FC erred by merging its
concerns with Voltage's litigation plan into its consideration of
the preferability test. In assessing the litigation plan, the FC
concluded that joinder was the preferable procedure, a conclusion
the FCA said could not be sustained. The FC also erroneously
concluded that the ability to opt-out of the class proceeding was a
further reason not to certify the proceeding. The FCA explained
that the ability to opt-out is codified in the Rules and not a
reason to refuse certification. The FCA continued, noting that
without evidence as to how membership is determined and preserved,
and its scale, it is impossible to determine whether a class
proceeding would be preferred over other available options.
Accordingly, the FCA could not review the evidence and conduct the
preferability analysis in the motion judge's stead.
5. There is a suitable representative respondent
The FCA noted again there was a paucity of analysis on these issues
by the FC, which had wrongly determined that Voltage did not meet
the representative class member criteria on the basis that Voltage
failed to show that the representative defendant had an "incentive"
to defend the class application because his cost exposure was
capped at $5,000. The FCA opined that such reasoning would lead to
the conclusion that no respondent class proceedings would ever have
a suitable representative respondent in circumstances where the
monetary consequence for each class member is low. As the questions
to be considered at this stage were factually suffused and
deserving of careful attention, this criterion was referred back to
the Federal Court for re-hearing.
6. Use of the Notice and Notice regime
The FC concluded that Voltage's proposed use of the notice and
notice regime under the Copyright Act overburdened Internet Service
Providers and appropriated Parliament's intention to balance the
rights of interested parties, for its own purpose. The FCA held
that the FC had not conducted the statutory interpretation analysis
required to determine the use to which Parliament intended the
notice and notice regime to be put, holding that there was no
evidence to support this conclusion. This criterion was remitted
back to the FC for re-consideration.
Appeal of the costs award
The FCA held that the FC's decision to award costs contrary to the
presumption that a class proceeding is a no-cost regime without
explaining why was legally and factually deficient, as the FCA
could not understand why the decision was made, or whether an error
was committed. The FCA therefore allowed the appeal of costs and
set aside the order.
The FCA also held that the FC erred in ordering that the $75,000
set aside for security for costs "up to and including" the motion
for certification, not be released following its decision not to
certify the class action. Following the outcome of the motion, the
funds should have been released. However, in light of Voltage's
success in the appeal and the certification motion being returned
to the FC, the FCA stated that this error was of no consequence and
the question of security would follow the FC's decision on the
returned motion.
The case is Salna v. Voltage Pictures, LLC, 2021 FCA 176 at para 98
[GN]
WATERDROP INC: Kirby McInerney Reminds of November 15 Deadline
--------------------------------------------------------------
The law firm of Kirby McInerney LLP reminds investors that a class
action lawsuit has been filed in the U.S. District Court for the
Southern District of New York on behalf of those who acquired
Waterdrop Inc. ("Waterdrop" or the "Company") (NYSE: WDH) American
Depository Shares ("ADSs") from May 4, 2021 through September 14,
2021, inclusive (the "Class Period"). Investors have until November
15, 2021 to apply to the Court to be appointed as lead plaintiff in
the lawsuit.
Waterdrop operates an insurance technology platform and is based in
Beijing, China. Waterdrop has historically operated three business
segments: (i) an insurance marketplace that matches consumers with
health and life insurance products; (ii) medical crowdfunding,
which enables people to provide donations to people with
significant medical costs; and (iii) mutual aid, which enabled
people suffering from over 100 types of critical illness to spread
their medical cost burdens. Waterdrop discontinued its mutual aid
segment in March 2021, shortly before the IPO.
On April 16, 2021, Waterdrop filed a registration statement on a
Form F-1 for the IPO, which, after an amendment, was declared
effective on May 6, 2021 (the "Registration Statement"). On May 7,
2021, Waterdrop filed a prospectus for the IPO on a Form 424B4,
which incorporated and formed part of the Registration Statement.
The Registration Statement was used to sell to the investing public
30 million Waterdrop ADSs at $12 per ADS.
On June 17, 2021, Waterdrop issued a press release announcing
Waterdrop's financial results for the quarter conducted before the
IPO. In doing so, Waterdrop reported that its operating costs and
expenses had ballooned over 75%, or RMB579.1 million to RMB1,343.9
million (US$205.1 million). As a result, Waterdrop suffered an
operating loss for the quarter of RMB460.6 million (US$70.3
million), compared with an operating loss of RMB111.1 million for
the same period of 2020 - a more than four-fold increase. This
rapid increase in operating expenses was due largely to the
cessation of Waterdrop's mutual aid business and growing customer
acquisition costs.
Then, on August 11, 2021, multiple news sources reported that
China's banking and insurance watchdog, the China Banking and
Insurance Regulatory Commission, had issued an order directing
insurance companies to cease improper marketing and pricing
practices rampant in the industry and enhance their user privacy
protections. Failure to comply would reportedly result in the
offenders being "severely punished" by Chinese authorities. As
Bloomberg reported, "[r]egulators have since moved to shutter some
operations including mutual aid healthcare platforms operated by
Waterdrop." The article continued: "The latest move will stymie
growth in an industry that had been expected to grow to 2.5
trillion yuan (US$385 billion) in a decade."
Finally, on September 8, 2021, Waterdrop disclosed that its
operating losses for the quarter ended June 30, 2021 had continued
to accelerate, totaling RMB815.4 million (US$126.3 million),
compared with an operating profit of RMB7.2 million for the same
period of 2020. This was once again due to a sharp increase in
Waterdrop's operating costs and expenses, as Waterdrop's operating
costs and expenses during the quarter increased by RMB1,081.1
million, or 160.5% year over year, to RMB1,754.7 million (US$271.8
million) from RMB673.6 million for the same period of 2020. On
September 13, 2021, Waterdrop ADSs dropped to $3.01 per ADS --
approximately 75% below the price at which Waterdrop ADSs were sold
to the investing public just four months previously.
The lawsuit alleges that the IPO's Registration Statement failed to
disclose that Waterdrop was the subject of an intense regulatory
investigation and pending crackdown by Chinese authorities because
of a variety of market abuses perpetrated by Waterdrop used to
artificially inflate Waterdrop's short-term financial results in
the lead up to the IPO, including, among other things: (i)
operating insurance platforms without proper governmental
authorizations; (ii) mispricing risks for consumers; and (iii)
illicitly using client information. The Waterdrop class action
lawsuit further alleges that, unbeknownst to investors, the reason
that Waterdrop had discontinued its mutual aid segment was because
it had been ordered to do so by Chinese regulators. Furthermore,
Waterdrop had suffered rapidly accelerating operating losses in the
first quarter of 2021 which was completed weeks before the IPO.
If you purchased or otherwise acquired Waterdrop ADSs, have
information, or would like to learn more about these claims, please
contact Thomas W. Elrod of Kirby McInerney LLP at 212-371-6600, by
email at investigations@kmllp.com, or by filling out this contact
form, to discuss your rights or interests with respect to these
matters without any cost to you.
Kirby McInerney LLP is a New York-based plaintiffs' law firm
concentrating in securities, antitrust, whistleblower, and consumer
litigation. The firm's efforts on behalf of shareholders in
securities litigation have resulted in recoveries totaling billions
of dollars. Additional information about the firm can be found at
Kirby McInerney LLP's website: http://www.kmllp.com.
This press release may be considered Attorney Advertising in some
jurisdictions under the applicable law and ethical rules.
Contacts:
Kirby McInerney LLP
Thomas W. Elrod, Esq.
212-371-6600
https://www.kmllp.com
investigations@kmllp.com [GN]
WATERDROP INC: Wolf Haldenstein Reminds of November 15 Deadline
---------------------------------------------------------------
Wolf Haldenstein Adler Freeman & Herz LLP on Sept. 21 disclosed
that a federal securities class action lawsuit has been filed in
the United States District Court for the Southern District of New
York on behalf of investors who purchased or otherwise acquired the
American Depositary Receipts ("ADR's") of Waterdrop Inc. (NYSE:
WDH) ("Waterdrop") in or traceable to Waterdrop's May 2021 initial
public offering (the "IPO").
All investors who purchased the ADR's of Waterdrop 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 ADR's of Waterdrop Inc., you
may, no later than November 15, 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
the ADR's of Waterdrop Inc.
On May 7, 2021, Waterdrop filed a prospectus for the IPO on a Form
424B4, which incorporated and formed part of the Registration
Statement. The Registration Statement was used to sell to the
investing public 30 million Waterdrop ADR's at $12 per ADR. The
filed complaint alleges that the Registration Statement failed to
disclose that Waterdrop had suffered ballooning losses in the first
quarter of 2021 and violated numerous Chinese laws and regulations
governing the insurance industry.
The truth began to emerge on June 17, 2021, when Waterdrop issued a
press release announcing its financial results for the quarter
ended March 31, 2021, the quarter conducted before the IPO.
Waterdrop reported that its operating costs and expenses had
ballooned over 75%, or RMB579.1 million, to RMB1,343.9 million
(US$205.1 million). As a result, Waterdrop suffered an operating
loss for the quarter of RMB460.6 million (US$70.3 million),
compared with an operating loss of RMB111.1 million for the same
period of 2020 – a more than four-fold increase.
Then, on August 11, 2021, multiple news sources reported that
China's banking and insurance watchdog, the China Banking and
Insurance Regulatory Commission, had issued an order directing
insurance companies to cease improper marketing and pricing
practices rampant in the industry and enhance their user privacy
protections. Failure to comply would reportedly result in the
offenders being "severely punished" by Chinese authorities.
Finally, on September 8, 2021, Waterdrop issued a press release
announcing its financial results for the quarter ended June 30,
2021. The release stated that Waterdrop's operating losses had
continued to accelerate, totaling RMB815.4 million (US$126.3
million) for the quarter, compared with an operating profit of
RMB7.2 million for the same period of 2020. This was once again due
to a sharp increase in Waterdrop's operating costs and expenses, as
the company's operating costs and expenses during the quarter
increased by RMB1,081.1 million, or 160.5% year over year, to
RMB1,754.7 million (US$271.8 million) from RMB673.6 million for the
same period of 2020.
On September 13, 2021, the day before the complaint was filed,
Waterdrop ADR's dropped to a low of just $3 per ADR, 75% below the
price at which Waterdrop ADR's were sold to investors.
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 [GN]
WESCO INSURANCE: New York Court Stays Proceedings in Daij Suit
--------------------------------------------------------------
Pending decision in 10012 Holdings, Inc. v. Sentinel Ins. Co., the
U.S. District Court for the Eastern District of New York stayed the
lawsuit entitled DAIJ, INC. d/b/a GENADEEN CATERERS, Individually
and on Behalf of All Others Similarly Situated, Plaintiff v. WESCO
INSURANCE COMPANY and AMTRUST FINANCIAL, Defendants, Case No.
20-CV-2739 (JS) (SIL) (E.D.N.Y.).
The case is one of thousands of cases filed in state and federal
courts across the country involving the application of commercial
property insurance policies to losses incurred as a result of
various state-wide closure orders due to the COVID-19 pandemic.
Plaintiff DAIJ, a caterer that rents ballroom and kitchen space
from a Sephardic Temple in Cedarhurst, New York, commenced the
class action against AmTrust Financial and its insurance company
subsidiary Wesco after the Defendants disclaimed coverage under the
Plaintiff's all risk commercial property policy for losses the
Plaintiff incurred as a result of New York State closure orders
that forced the Sephardic Temple to temporarily close.
The Policy includes three standard provisions relevant to the
issues in this case: (1) the Business Income Provision; (2) the
Civil Authority Provision; and (3) the Virus Exclusion. Under the
Business Income Provision and related Extra Expense clause Wesco
agrees to pay for actual loss sustained due to the suspension of
business operations "caused by direct physical loss of or damage to
property."
The Civil Authority Provision obligates Wesco to pay the actual
loss of Business Income the insured sustains and necessary Extra
Expense caused by action of civil authority that prohibits access
to the described premises, provided that (1) access to the area
immediately surrounding the damaged property is prohibited as a
result of the damage, and (2) the action of civil authority is
taken in response to dangerous physical conditions resulting from
the damage or continuation of the Covered Cause of Loss that caused
the damage. The Virus Exclusion excludes losses caused by any
virus, bacterium, or other microorganism that induces or is capable
of inducing physical distress, illness or disease.
The Plaintiff seeks a declaratory judgment that the Plaintiff's
(and other class member's) losses are covered by the Policy's
Business Income Provision and related Extra Expense clause and/or
Civil Authority Provision, as well as damages for breach of the
Policy.
The Defendants filed a motion to dismiss the Complaint for failure
to state a claim, which the Plaintiff opposed.
In a substantially similar case, 10012 Holdings, Inc. v. Sentinel
Ins. Co., 20-CV-4471, 507 F.Supp.3d 482 (S.D.N.Y. Dec. 15, 2020),
filed in the Southern District of New York, the plaintiff brought
suit against its insurance carrier after it sought and was denied
coverage for losses incurred in the wake of New York State closure
orders, which caused the plaintiff to suspend its art gallery
operations.
The district court in 10012 Holdings dismissed with prejudice the
plaintiff's complaint, finding the plaintiff was not entitled to
coverage under its policy. The plaintiff appealed the district
court's decision to the Second Circuit, where it remains pending;
see 10012 Holdings, Inc. v. Hartford Fire Ins. Co., 21-CV-80 (2d
Cir. Jan. 14, 2021) (appeal docketed).
On Sept. 2, 2021, the Second Circuit heard oral argument on the
plaintiff's appeal in 10012 Holdings. The Second Circuit's decision
in 10012 Holdings is likely to have a significant impact on the
disposition of the issues presented in the present action.
The Court finds, in the interests of judicial economy and
efficiency, that a stay pending the Second Circuit's decision in
10012 Holdings is warranted in the present action.
Accordingly, it is ordered that all proceedings in the present
action are stayed pending the Second Circuit's decision in 10012
Holdings.
The Clerk of the Court is respectfully directed to administratively
terminate the pending motion to dismiss, without prejudice to the
Defendants seeking its reinstatement upon the Circuit Court
rendering its decision in 10012 Holdings.
A full-text copy of the Court's Order dated Sept. 13, 2021, is
available at https://tinyurl.com/3dymvf83 from Leagle.com.
Mark S. Reich, Esq. -- mreich@zlk.com -- Levi & Korsinsky, LLP, in
New York City, Samuel H. Rudman, Esq. -- SRudman@rgrdlaw.com --
Robbins Geller Rudman & Dowd LLP, in Melville, New York,
Christopher A. Seeger, Esq. -- cseeger@seegerweiss.com -- Stephen
Andrew Weiss, Esq. -- sweiss@seegerweiss.com -- Seeger Weiss, LLP,
One William Street, in New York City, James E. Cecchi, Esq. --
JCecchi@carellabyrne.com -- Lindsey H. Taylor, Esq. --
LTaylor@carellabyrne.com -- Carella, Byrne, Cecchi, Olstein, Brody
& Agnello, P.C., in Roseland, New Jersey, for the Plaintiff.
Wesco Insurance Co. & AmTrust Financial, Sean Thomas Keely, Esq. --
skeely@freeborn.com -- Freeborn & Peters LLP, in New York City,
James J. Boland, Esq. -- jboland@freeborn.com -- Freeborn & Peters
LLP, in Chicago, Illinois, for the Defendants.
WORTH COUNTY, GA: Class Deal in Sauls v. Sheriff Wins Prelim. Nod
-----------------------------------------------------------------
In the case, TIMOTHY SAULS, et al., Plaintiffs v. JEFF HOBBY,
Defendant, Case No. 1:19-CV-81 (LAG) (M.D. Ga.), Judge Leslie A.
Gardner of the U.S. District Court for the Middle District of
Georgia, Albany Division, granted the Parties' Joint Motion to
Reopen Case for Settlement Approval and Joint Motion for
Preliminary Approval of Settlement and Conditional Class
Certification.
Background
The Plaintiffs filed the putative class action based on alleged
audio and visual interception of confidential communications that
occurred in the Worth County Jail interview room. After the case
was filed, the Parties mediated the case twice and reached an
agreement with regard to the relief that the putative class would
receive.
After the Parties advised the Court that they had agreed to settle
the case, the Court administratively closed the case on July 7,
2021, and ordered the Parties to either dismiss or move to reopen
the case within 30 days. On Aug. 6, 2021, the Parties filed the
instant Motions. The Motions are now ripe for review.
Discussion
Because the case was administratively closed, Judge Gardner first
discusses the Parties' Motion to Reopen and then discusses the
Motion for Preliminary Approval of Settlement and Conditional Class
Certification.
I. Motion to Reopen Case for Approval of Settlement
The Parties first move to reopen the case, pursuant to Federal Rule
of Civil Procedure 23, "so that they can file a motion that seeks
preliminary certification of a class for settlement purposes,
preliminary approval of the settlement agreement, and approval of
the manner in which members of the class will be notified of the
settlement."
As the Parties timely filed their Motion to Reopen in accordance
with the Court's prior Order, and because preliminary approval of
the class and settlement are required -- as well as a fairness
hearing -- Judge Gardner granted the Parties' Motion to Reopen.
II. Preliminary Approval of Class Settlement and Conditional Class
Certification
The Parties' Motion for Preliminary Approval of Settlement and
Conditional Class Certification requests that the Court: (1)
certifies a class for settlement purposes, (2) appoints class
counsel, (3) preliminarily approves the proposed Settlement, and
(4) directs that notice will be issued to the class. The terms of
the Settlement are set out in the Settlement Agreement submitted to
the Court on Aug. 6, 2021, which the Plaintiffs signed and the
Defendant's authorized representative signed. Capitalized terms not
otherwise defined in the Order will have the meaning ascribed to
them in the Settlement Agreement.
Judge Gardner, having considered the Joint Motion for Preliminary
Approval of Settlement and Conditional Class Certification, the
attached Settlement Agreement, and the Parties' Proposed Order to
determine, among other things, whether the Settlement is sufficient
to warrant the issuance of notice to Members of the proposed
Settlement Class, ordered that the Court has jurisdiction over the
subject matter of the Action and over all the Parties in the
Action, including all Members of the Settlement Class.
The Judge preliminarily finds, for purposes of the Settlement, that
requirements of the Federal Rules of Civil Procedure, the Rules of
the Court, and any other applicable law have been met as to the
Settlement Class.
She preliminarily certifies the following Settlement Class for
settlement purposes under Federal Rule of Civil Procedure 23(b)(3)
in the litigation (the Settlement Class): "All individuals who
participated in a conversation that took place between July 13,
2017 and Feb. 26, 2018 in the Worth County Jail Interview Room2
between: (1) an inmate of the Worth County Jail and that inmate's
attorney and/or (2) an inmate of the Worth County Jail who was
being represented by the Public Defender's Office and an
investigator for the Public Defender's Office."
The Settlement Agreement is preliminarily approved, as Judge
Gardner preliminarily finds that: (1) the proposed Settlement
resulted from arm's-length negotiations; (2) the Settlement
Agreement was executed only after the Class Counsel had researched
and investigated multiple legal and factual issues pertaining to
the Plaintiffs' claims; (3) the Settlement appears on its face to
be fair, reasonable, and adequate; and (4) the Settlement evidenced
by the Settlement Agreement is sufficiently fair, reasonable, and
adequate to warrant sending notice of the Action and the Settlement
to the Settlement Class.
Judge Gardner also finds that the Class Counsel has and will
continue to represent fairly and adequately the interests of the
Settlement Class. Accordingly, pursuant to Federal Rule of Civil
Procedure 23(g)(2), she preliminarily designates Nicholas W.
Armstrong and Garrett Owens of Price Armstrong, LLC and Virgil L.
Adams of Adams, Jordan & Herrington, P.C. as the co-lead Class
Counsel for the Settlement Class in the Action.
The Judge further finds that Plaintiffs Timothy Sauls, Zachery
Lovett, Paul Wade, and Walter Walker are adequate and typical class
representatives for the Settlement Class and, therefore, appoints
Plaintiffs Timothy Sauls, Zachery Lovett, Paul Wade, and Walter
Walker as the representatives of the Settlement Class.
The Parties have presented to the Court a proposed Class Notice,
which is appended to the Joint Motion for Preliminary Approval of
Settlement and Conditional Class Certification of Settlement Class
in the Settlement Agreement and is also enumerated in the Parties'
Proposed Order. Judge Gardner approves the form and content of the
Class Notice.
The Parties have proposed communicating the Class Notice to Members
of the Settlement Class via U.S. mail and by publication in the
Sylvester Local News once a week for two weeks within fourteen days
following the preliminary certification of the Class and Agreement.
Judge Gardner finds that such proposed manner is adequate. She
directs that the Defendants shall, by no later than two weeks from
the date of the Order, cause the Class Notice agreed upon by the
Parties to be disseminated pursuant to the Settlement Agreement to
the last known address of each Member of the Settlement Class who
can be identified by reasonable effort, and of each Member whose
addresses are contained in the records maintained by the Worth
County Jail shown on the spreadsheet attached to the Settlement
Agreement as Exhibit C.
At or before the Final Fairness Hearing, the Defendants will file
with the Court proof of timely compliance with the foregoing
mailing requirements.
The Final Fairness Hearing is set for March 10, 2022, at 10:00 a.m.
at the C.B. King United States Courthouse, 201 West Broad Avenue,
Albany, Georgia, 31701.
If the Settlement is terminated in accordance with the Settlement
Agreement or does not become Final under the terms of the
Settlement Agreement for any other reason, the Order and all the
Class Findings will become null and void and will be without
prejudice to the rights of the Parties, all of whom will be
restored to their respective positions prior to the entry of the
order granting Joint Motion to Stay All Proceedings, entered June
10, 2021.
Further, if the Agreement is not approved by the Court, or if the
Agreement is not otherwise consummated, for whatever reason, the
Defendant will have 14 days to file a dispositive motion, and if
the Defendant's dispositive motion is filed within that 14-day
period, it will be deemed to have been filed in a timely manner.
Additionally, the Parties agree that the Plaintiffs will not argue
to the Court, prior to the expiration of that 14-day period, that
the Defendant's lack of filing a dispositive motion amounts to
abandonment, concession, estoppel, or any similar concept.
The Settlement Agreement and any and all negotiations, documents,
and discussions associated with the Agreement, will not be deemed
an admission or evidence of any violation of law, the amount of any
damages owed to any Class Member, the value of attorney services
provided to the Plaintiffs or Class Members, or any other matter.
Conclusion
Accordingly, Judge Gardner granted the Parties' Joint Motion to
Reopen Case for Settlement Approval and Joint Motion for
Preliminary Approval of Settlement and Conditional Class
Certification.
She ordered the following deadlines:
a. The Parties will provide notice to the Class within two
weeks of the Order;
b. Each potential Class Member must submit an Opt-Out Form to
Plaintiffs' attorneys no later than 21 days prior to the Final
Fairness Hearing;
c. Each potential Class Member must submit a Response Form no
later than 90 days following the final approval of the settlement;
and
d. The Court will hold a Final Fairness Hearing at the C.B.
King United States Courthouse, 201 West Broad Avenue, Albany,
Georgia 31701 on Thursday, March 10, 2022, at 10:00 a.m.
A full-text copy of the Court's Sept. 17, 2021 Order is available
at https://tinyurl.com/2xnr4py9 from Leagle.com.
XTO ENERGY: Ct. Enters Amended Case Management Order in Salvatora
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In the class action lawsuit captioned as ROGER A. SALVATORA, et
al., individually and on behalf of all those similarly situated, v.
XTO ENERGY INC., Case No. 2:19-cv-01097-CRE (W.D. Pa.), the Hon.
Judge Cynthia Reed Eddy entered an amended case management order as
follows:
1. The Defendant's expert reports related to class
certification are due by October 26, 2021.
2. The Plaintiffs' reply expert reports, which are limited to
issues raised for the first time in Defendant's expert
reports are due by November 10, 2021.
3. The Defendant's sur-reply expert reports, which are
limited to issues raised for the first time in Plaintiffs'
reply expert reports are due by November 24, 2021.
4. Depositions of all experts related to class certification
shall be on or before December 20, 2021.
5. Motion for class certification due by January 7, 2022.
Brief limited to 25 pages.
6. Responses to motion due by February 7, 2022. Brief limited
to 25 pages.
7. Reply due by February 21, 2022. Brief limited to 5 pages.
8. A hearing on the motion for class certification is
scheduled for March 29 2022, at 10:00 a.m. This case shall
be marked administratively closed until January 7, 2022.
This closure does not impact the parties' ability to
submit filings for the court's consideration and is for
administrative purposes only.
XTO Energy is an American energy company, principally operating in
North America, specializing in the drilling and production of
unconventional oil and natural gas assets, typically from shale
rock through a process known as hydraulic fracturing. It is a
subsidiary of Exxon Mobil Corporation.
A copy of the Court's order dated Sept. 21, 2021 is available from
PacerMonitor.com at https://bit.ly/3zYxlQX at no extra charge.[CC]
[*] Winston & Strawn Attorneys Discuss Arbitration, Waivers
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Katrina G. Eash and Alexandra AuriscH, of Winston & Strawn LLP,
disclosed that in July, Congressmen Robert C. Scott (VA-03) and
Jerrold Nadler (NY-10) introduced the Restoring Justice for Workers
Act, which seeks to eliminate arbitration agreements in the
employment context. They have done so while Congress is already
considering (again) whether to eliminate predispute arbitration
agreements as well as class action waivers in employment, consumer,
antitrust, and civil rights litigation -- an action with enormous
potential consequences for businesses and employers. Earlier this
year, Congressman Hank Johnson Jr. (D-GA) and Senator Richard
Blumenthal (D-CT) introduced the Forced Arbitration Injustice
Repeal Act (the "FAIR Act"). The House passed the bill in 2019, but
the Senate - then under Republican control - never moved on it.
Over the last decade, the Supreme Court has repeatedly affirmed
that the Federal Arbitration Act ("FAA") strongly supports
arbitration and enforcing class action waivers. The FAIR Act is
directed against that prevailing current. It would amend the FAA to
expressly invalidate predispute arbitration agreements and class,
collective, and joint action waivers in employment, consumer,
antitrust, and civil rights disputes. If passed as currently
drafted, the bill would invalidate predispute arbitration
agreements and group action waivers to the extent they would have
covered a dispute that arises or accrues after the bill becomes law
-- even in agreements signed before the bill's passage. Arbitration
provisions in collective bargaining agreements would not be
affected, but the bill's reach appears otherwise unlimited in the
context of employment, consumer, antitrust, and civil rights
disputes.
The FAIR Act's intent is to reach only predispute agreements, so
litigants will remain free to choose arbitration after a dispute
arises. But whether litigants will voluntarily opt for arbitration
if the bill passes remains to be seen.
For now, the bill is pending before the House and Senate Judiciary
Committees. Winston's Class Action and Labor & Employment teams are
closely following legal developments in this area and will provide
updates as they become available. [GN]
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