/raid1/www/Hosts/bankrupt/CAR_Public/211115.mbx
C L A S S A C T I O N R E P O R T E R
Monday, November 15, 2021, Vol. 23, No. 222
Headlines
35 CLUB: Wagoner Sues Over Refusal to Pay Minimum Wage
3M COMPANY: Awalt Sues Over Exposure to Toxic Film-Forming Foams
3M COMPANY: Banks Suit Removed to E.D. Kentucky
3M COMPANY: Combs Suit Removed to E.D. Kentucky
3M COMPANY: Cox Suit Alleges Complications From AFFF Products
3M COMPANY: Fair Suit Claims Toxic Exposure From AFFF Products
3M COMPANY: Hixon Sues Over Exposure to Toxic Film-Forming Foams
3M COMPANY: Mounts Suit Removed to E.D. Kentucky
AARP INC: Court Junks Krukas Suit for Lack of Standing
ACM RESEARCH: Hearing on Bid to Junk Kain Class Suit Set for Dec. 2
AEP TRANSMISSION: Bid to Nix Ohio House Bill 6 Related Suit Pending
ALCOA CORPORATION: Mediation in Lavoie Class Suit Ongoing
ALIERA COMPANIES: Albina Seeks to Certify Kentucky Resident Class
ALIGN TECHNOLOGY: Settlement in Seb Investment Suit Gets Initial OK
ALIGN TECHNOLOGY: Web Site Not Accessible to Blind, Suit Alleges
ALLIED ACCOUNT: Leidner Suit Seeks Rule 23 Class Certification
ALNYLAM PHARMA: No Appeal Filed on Denial of Bid to Amend Complaint
AMC ENTERTAINMENT: Parties Agree to Resolve Class Actions for $18MM
AMERICA'S FOOD: Fails to Pay Proper Wages, Perez Suit Alleges
AMERICAN ACADEMY: Faces Wage Theft Class Action in Minnesota
AMERICU CREDIT: Faces Fairchild-Cathey Suit Over Overdraft Fees
AMYRIS INC: Filed Opposition to Plaintiffs' Class Certification Bid
ANZ BANK: Borrowers' Class Action Over Illegal Fees Pending
APPLE INC: Court Narrows Claims in Franklin's Amended Class Suit
APPLE INC: Parties Agree to Continue Class Cert. Briefing Schedule
ARIZONA: Faces Class Action Over Poor Prison Medical Care
ATONOMI LLC: Extension for Summary Judgment Bid Filing Sought
AUSTIN POWDER: Fails to Pay Proper Wages, Carr Suit Alleges
AVANTUS LLC: Class Certification Deadlines Extended in Martinez
BAILEY SEAFOOD: Fails to Pay Proper Wages, Perez Suit Alleges
BALTIMORE, MD: Council Approves Outside Law Firm in Class Action
BAM! PIZZA: Fails to Pay Proper Wages, Armstrong Suit Alleges
BEANFIELDS INC: Contreras Files ADA Suit in S.D. New York
BLACKBERRY LIMITED: Class Action Pending in New York
BLACKROCK INSTITUTIONAL: Settlement in Baird Suit Gets Final Nod
BMW OF NORTH AMERICA: Baker Loses Bid to Strike Expert's Testimony
BOJANGLES RESTAURANTS: Court Denies Stafford's Bid to Vacate Order
BPS FINANCIAL: Salerno Law to File Class Action Over QOIN Token
BRISTOL-MYERS SQUIBB: ClaimsFiler Reminds of December 6 Deadline
BRISTOL-MYERS SQUIBB: Schall Law Firm Reminds of Dec. 6 Deadline
BROWN UNIVERSITY: 1st Cir. Affirms Approval of Cohen's Settlement
CAMBER ENERGY: Coggins Sues Over Share Price Drop
CAMBER ENERGY: Schall Law Firm Reminds of December 28 Deadline
CANADA: Faces Class Action in B.C. Over "Birth Alerts" Practices
CENTRAL COAST: Garcia Seeks to Certify Class & Subclasses
CENTRAL FREIGHT: Class Cert. Briefing Extended in Henry Suit
CHARLES SCHWAB: Court Denies Bid to Certify Class in Crago Suit
CHARTER COMMUNICATIONS: Can Compel Arbitration in Maharaj Suit
CHOICE HOTELS: Simmons Sues Over Unpaid Overtime for Hotel Staff
CLARK COUNTY, KY: Supreme Court Flips Summary Judgment in Jones
CLARKWESTERN DIETRICH: Rueda Suit Removed to E.D. California
COCA-COLA: Seeks Dec. 6 Extension to File Class Cert. Response
COMPARE THE MARKET: Hausfeld Files Opt-out Class Action Lawsuit
CORECIVIC OF TENNESSEE: Court Denies Bid to Transfer Jim FLSA Suit
CVS HEALTH: HIV, AIDS Patients File Class Action
D'ARGENT FRANCHISING: Williams Loses Conditional Certification Bid
D-MARKET ELECTRONIC: Faruqi & Faruqi Reminds of Dec. 20 Deadline
D-MARKET ELECTRONIC: Thornton Law Reminds of Dec. 20 Deadline
DAHER CLEANING: Alvarez Seeks to Certify Hourly-Paid Employee Class
DBI SERVICES: Faces Allen Suit Over Alleged WARN Act Violation
DELAWARE NORTH: Cyiark Labor Code Suit Removed to C.D. California
DELAWARE, OH: Court Modifies Scheduling Order in Seattle House Suit
DIGNITY CARE: Ahram FLSA Class Suit Removed to D. Colorado
DOM MUSIC BOX: Saavedra Seeks Unpaid Overtime Pay, Payslips
DUKE UNIVERSITY: Settlement Check Distribution Reflects Inequity
EARGO INC: Wolf Haldenstein Reminds of December 6 Deadline
EAST COAST RESTORATION: Settlement Order in Helwing Suit Affirmed
EASTERN ENERGY: Misclassifies Operators, Gibson Suit Claims
ELKHART PRODUCTS: Wins Bid to Decertify McCoy as Collective Action
EQUITYEXPERTS.ORG: Waldrep Sues Over Fraudulent Collection Scheme
ESKINA 214: FLSA Collective Conditionally Certified in Ortiz Suit
EUROFINS SCIENTIFIC: Lopez Sues Over Unpaid Minimum, Overtime Wages
EVENTBRITE INC: Terminates Settlement Agreement in IPO Suit
FACEBOOK INC: Faces Regulatory Problems Amid Class Actions
FCA US: Faces Class Action Over Dodge Rear Differential Issues
GALENA BIOPHARMA: Feb. 21, 2022 Settlement Fairness Hearing Set
GAOTU TECHEDU: Johnson Fistel Reminds of December 20 Deadline
GATEHOUSE MEDIA: Seeks Denial of Ewalt Class Certification Bid
GDC TECHNICS: Bankruptcy Court Judge Certifies Class Action
GENERAL MOTORS: Class Action Over Defective Engines Dismissed
GEO GROUP: Owes Immigration Detainees $17.3 Million in Back Pay
GOVERNMENT EMPLOYEES: Syverson Sues Over Denied Overtime Wages
GREEN MESSENGERS: Sanchez Class Suit Dismissed With Leave to Amend
GREYSTAR MANAGEMENT: Summary Judgment in Flemming's Favor Vacated
HAMILTON-RYKER: Fails to Pay Inspectors' OT, Cunningham Claims
HARVEST ENTITIES: Duke Seeks Transfer of Actions to Maryland
HEALTH IQ INSURANCE: Vaughan Sues Over Unsolicited Calls
HENRY THAYER: Court Amends Case Management Order in Lisowski Suit
HOEGH LNG: Robbins Geller Reminds of December 27 Deadline
HOEGH LNG: Schall Law Firm Reminds of December 27 Deadline
HOME DEPOT: White Employment Suit Removed to C.D. California
HOTELS.COM LP: Supreme Court Dismisses Appeal in Pine Bluff Suit
IMPARK QB LLC: Fails to Pay Proper Wages, More Suit Alleges
INNOVAGE HOLDING: Faruqi & Faruqi Reminds of December 13 Deadline
ISEC INC: Laborers and Carpenters Get Class Status in Castillo Suit
JANSSEN BIOTECH: Louisiana Health's Antitrust Complaint Dismissed
JMP GROUP LLC: Faces Bushansky Suit Over Proposed Merger
KALBAR OPERATIONS: Faces Gippsland Suit Over Business Practices
KENT PHARMACY: Faces Class Action Over Reused COVID Syringes
MAJOR LEAGUE: New York Mets Owner's Tweet Used in Class Action
MANDARICH LAW: Class Certification Deadlines Extended in Moore Suit
MAPLEBEAR INC: Court Grants in Part Evans' Bid to Amend Complaint
MASTERCARD INC: Court Grants Certification to Rules Relief Class
MASTERCARD INC: Summary Ruling Briefing in Class Suit Set for 2022
MEDFORD, MA: Fails to Pay Proper Wages, Connors Suit Alleges
METALS COMPANY: Carper Files Suit Over Share Price Drop
NATIONAL FOOTBALL: Loses Bid to Dismiss Gill Class Suit
NEW JERSEY: Skelton's Bid for Leave to File Amended Complaint OK'd
NEW YORK: City Mayor Issues Emergency Executive Order 279
NEWMONT CORP: Plaintiff's Counsel Seeks to Discontinue Class Suit
NORMAN BARWIN: Judge Approves $13.375MM Class Action Settlement
NY ASPHALT: Toral Sues Over Unpaid Wages for Construction Workers
OAKLAND, CA: Expected to Settle Freelance Journalists' Lawsuit
OMMSAN LLC: Fails to Pay Proper Wages, Kelly Suit Alleges
ONTARIO ENERGY: Court Approves Class Action Settlement
PACIFICNORTHWEST NATURALS: Sued Over Mislabeled Food Supplements
PHILADELPHIA, PA: Partial Judgment Bid in Liberty Suit Partly OK'd
PILGRIM'S PRIDE: Agreement Reached in CIIPP Class Suit
PILGRIM'S PRIDE: Ruling on Hogan Bid to Amend Judgment Pending
PLATT ELECTRIC: Hardin Wage-and-Hour Suit Goes to E.D. California
PLYMOUTH ROCK: Has Made Unsolicited Calls, Clough Suit Claims
QUANTUMSCAPE CORP: Bid to Dismiss NY Putative Class Suit Pending
QUANTUMSCAPE CORP: Bid to Junk Battery Technology Suit Pending
R.R. DONNELLEY: Patodia Suit Alleges Breach of Fiduciary Duty
RELIANCE WORLDWIDE: Court Enters Scheduling Order in Elder Suit
RG WELDING: Faces Garcia Suit Over Laborers' Unpaid OT Wages
RIBBON COMMUNICATIONS: Bid to Dismiss Miller Class Suit Pending
RITZ-CARLTON HOTEL: Judge Wants Attorney Testimony Tossed
RUST-OLEUM CORPORATION: Coating Products "Defective," Stevens Says
S&P GLOBAL: Rosen Law Firm Investigates Securities Claims
SEDGEWICK CLAIMS: Appeals Specialists Seek Unpaid Overtime Wages
SHAKER CONTRACTORS: Lucero et al. Sue Over Unpaid Overtime Wages
SOCLEAN INC: Faces Albright Suit Over Defective Ventilators
SOCLEAN INC: Ozone in CPAP Cleaner Unsafe for Humans, Carlile Says
SOCLEAN INC: Ozone in CPAP Cleaner Unsafe, Says Coley
SOGOU INC: Bid to Distribute Net Settlement Fund in Luo Suit OK'd
STANDARD FIRE: Bid for Fees & Costs in Young Suit Partly Approved
STATE STREET: Seeks Dismissal of Anti-trust Class Action Suit
STEAK N SHAKE: Brown Slams Illegal Tip Pool
T-MOBILE US: Two Proposed Data Breach Class Actions Paused
TASTY BAKING: $3.15M Class Settlement in Caddick Suit Wins Approval
TENCENT MUSIC: Faruqi & Faruqi Reminds of December 27 Deadline
TEXTRON INC: IWA Forest Fund Putative Class Suit Underway
TOOTSIE ROLL: Court Modifies Class Certification Schedule in Maisel
TREATMENT ASSESSMENT: Class Cert. Bid Filing Extended in Briggs
TRISTAR PRODUCTS: Sells Defective Air Fryers, Velez Suit Alleges
UBER TECHNOLOGIES: Promotions Overcharge Customers, Washington Says
UNITED STATES: Ackerman & Son Renews Bid to Certify Class Action
UNITED STATES: Court Certifies Class in Torres Suit Against Navy
UNITED STATES: Goverment Set to Pay Separated Immigrant Families
UNITED STATES: Must Respond to Johnson Class Cert Bid by Jan. 18
UNITED STATES: NH Emergency Room Boarding Class Action Okayed
UNIVERSAL PROTECTION: Fails to Pay Proper Wages, Bassett Alleges
VERACITY LLC: Alfaro Sues Over Construction Workers' Unpaid OT
VIPSHOP HOLDINGS: Lieff Cabraser Reminds of December 13 Deadline
VIVINT SOLAR: Stipulation to Amend Class Cert. Bid Deadlines Filed
VOLKSWAGEN AG: Faces Class Action Over "Voltswagen" Name-Change
WAL-MART ASSOCIATES: Court Tosses Alvarado Class Status Bid
WALMART INC: Lebby Seeks to Postpone Class Status Bid Deadline
WEST VIRGINIA: Fain Granted Leave to File First Amended Complaint
WHITE HOUSE: Rodden Sues Over Federal Employee Vaccine Mandate
WILSON LOGISTICS: Phase I Class Cert. Scheduling Order Entered
WRAP TECHNOLOGIES: Bid to Junk BolaWrap Related Suit Pending
YALLA GROUP: Shareholder Class Action Lawsuit Pending
[*] Bill to Prevent Excessive Litigation Funders' Fees Launched
[*] Junior Doctors Sue Over Excessive Hours, Underpayment
*********
35 CLUB: Wagoner Sues Over Refusal to Pay Minimum Wage
------------------------------------------------------
Jessica Wagoner, on behalf of herself and all those similarly
situated v. 35 Club, LLC d/b/a Club XXXV, Stock Enterprise, Inc.,
Alana, Inc., Michael Acciardi, Doreen Acciardi, Anthony Acciardi,
Sr., Anthony Acciardi, Jr., and John Does 1-10, Case No.
3:21-cv-19677 (D.N.J., Nov. 4, 2021), is brought to redress
violations by Defendants of the Fair Labor Standards Act, the New
Jersey Wage and Hour Law, the New Jersey Wage Payment Law, and
common law, as a result of the Defendants willful refusal to pay a
minimum wage, unlawfully requested, demanded and/or received wages
from employees, unlawfully demanded, accepted and/or retained a
part of gratuities or charges purported to be gratuities, and
unlawfully deducted employee wages through fines and penalties for
lateness and misconduct.
According to the complaint, the Plaintiff worked approximately 50
to 60 hours a week as an adult entertainer and waitress during her
tenure with the Defendants. The Defendants improperly classified
the Plaintiff and other adult entertainer Class Plaintiffs as
independent contractors. The Defendants did not pay the Plaintiff
any wages for any worked performed for the Defendants during her
entire tenure with Defendants. The Plaintiff's only income was
non-wage gratuities paid by patrons.
Defendants required the Plaintiff to incur costs for costumes and
other tools of the trade that were in reality business expenses of
Defendants and which costs should have been reimbursed by
Defendants, including but not limited to: Costumes; Hair/nails;
Makeup; and Props. The fees, fines, and expenses paid to Defendants
by the Plaintiff constitute de facto deductions and/or illegal
kickbacks in violation of the FLSA and the New Jersey wage and hour
law. Moreover, to the extent that the Plaintiff received any
gratuities from customers, she was required to share same with
Defendants' management and other non-service employees and agents
of Defendants. Such deductions, in conjunction with Defendants'
failure to pay any wages, reduced the Plaintiff's wages below the
statutory minimum wage required by federal and state wage and hour
law. Defendant's deductions and failure to pay any wages meant that
adult entertainer Collective Plaintiffs and Class Plaintiffs were
not paid the statutory minimum wage required by federal and state
wage and hour law, says the complaint.
The Plaintiff worked as an adult entertainer and waitress for the
Defendants in New Jersey from July 2018 to early July 2020.
Club 35 is a corporation that maintains a business in North
Sayreville, New Jersey.[BN]
The Plaintiff is represented by:
Joshua S. Boyette, Esq.
SWARTZ SWIDLER, LLC
1101 Kings Hwy N., Suite 402
Cherry Hill, NJ 08034
Phone: (856) 685-7420
Fax: (856) 685-7417
Email: jboyette@swartz-legal.com
3M COMPANY: Awalt Sues Over Exposure to Toxic Film-Forming Foams
----------------------------------------------------------------
Jonathan Awalt, and other similarly situated v. 3M COMPANY (f/k/a
Minnesota Mining and Manufacturing, Co.), AGC CHEMICALS AMERICAS,
INC., AGC, INC. (f/k/a Asahi Glass Co., Ltd.), AMEREX CORPORATION,
ARCHROMA MANAGEMENT, LLC, ARCHROMA U.S., INC., ARKEMA, INC.,
individually and as successor-in-interest to Atofina, S.A., BASF
CORPORATION, individually and as successor-in-interest to Ciba,
Inc., BUCKEYE FIRE EQUIPMENT CO., CARRIER GLOBAL CORPORATION,
individually and as successor-interest to Kidde-Fenwal, Inc.,
CHEMDESIGN PRODUCTS, INC., CHEMGUARD, INC., CHEMICALS, INC., CHUBB
FIRE, LTD., CLARIANT CORPORATION, CLARIANT CORPORATION,
individually and as successor-in-interest to Sandoz Chemical
Corporation, CORTEVA, INC., individually and as
successor-in-interest to DuPont Chemical Solutions Enterprise,
DEEPWATER CHEMICALS, INC., DUPONT DE NEMOURS, INC., individually
and as successor-in-interest to DuPont Chemical Solutions
Enterprise, DYNAX CORPORATION, E.I. DUPONT DE NEMOURS & COMPANY,
individually and as successor-in-interest to DuPont Chemical
Solutions Enterprise, KIDDE-FENWAL, INC., individually and as
successor-in-interest to Kidde Fire Fighting, Inc., KIDDE PLC,
INC., NATION FORD CHEMICAL COMPANY, NATIONAL FOAM, INC., THE
CHEMOURS COMPANY, individually and as successor-in-interest to
DuPont Chemical Solutions Enterprise, THE CHEMOURS COMPANY FC, LLC,
individually and as successor-in-interest to DuPont Chemical
Solutions Enterprise, TYCO FIRE PRODUCTS LP, as
successor-in-interest to The Ansul Company, UNITED TECHNOLOGIES
CORPORATION, and UTC FIRE & SECURITY AMERICAS CORPORATION (f/k/a GE
Interlogix, Inc.), Case No. 2:21-cv-03529-RMG (D.S.C., Oct. 27,
2021), is brought for damages for personal injury resulting from
exposure to aqueous film-forming foams ("AFFF") containing the
toxic chemicals collectively known as per and polyfluoroalkyl
substances ("PFAS"). PFAS includes, but is not limited to,
perfluorooctanoic acid ("PFOA") and perfluorooctane sulfonic acid
("PFOS") and related chemicals including those that degrade to PFOA
and/or PFOS.
According to the complaint, AFFF is a specialized substance
designed to extinguish petroleum-based fires. It has been used for
decades by military and civilian firefighters to extinguish fires
in training and in response to Class B fires. The Defendants
collectively designed, marketed, developed, manufactured,
distributed, released, trained users, produced instructional
materials, promoted, sold, and/or otherwise released into the
stream of commerce AFFF with knowledge that it contained highly
toxic and bio persistent PFASs, which would expose end users of the
product to the risks associated with PFAS. Further, the Defendants
designed, marketed, developed, manufactured, distributed, released,
trained users, produced instructional materials, promoted, sold
and/or otherwise handled and/or used underlying chemicals and/or
products added to AFFF which contained PFAS for use in
firefighting.
PFAS binds to proteins in the blood of humans exposed to the
material and remains and persists over long periods of time. Due to
their unique chemical structure, PFAS accumulates in the blood and
body of exposed individuals. PFAS are highly toxic and carcinogenic
chemicals. Defendants knew, or should have known, that PFAS remain
in the human body while presenting significant health risks to
humans.
The Defendants' PFAS-containing AFFF products were used by the
Plaintiff in their intended manner, without significant change in
the products' condition. Plaintiff was unaware of the dangerous
properties of the Defendants' AFFF products and relied on the
Defendants' instructions as to the proper handling of the products.
Plaintiff's consumption, inhalation and/or dermal absorption of
PFAS from Defendant's AFFF products caused Plaintiff to develop the
serious medical conditions and complications alleged herein.
Through this action, the Plaintiff seeks to recover compensatory
and punitive damages arising out of the permanent and significant
damages sustained as a direct result of exposure to the Defendants'
AFFF products at various locations during the course of Plaintiff's
training and firefighting activities. Plaintiff further seeks
injunctive, equitable, and declaratory relief arising from the
same, says the complaint.
The Plaintiff regularly used, and was thereby directly exposed to,
AFFF in training and to extinguish fires during his working career
as a military and/or civilian firefighter and was diagnosed with
testicular cancer as a result of exposure to Defendants' AFFF
products.
The Defendants are designers, marketers, developers, manufacturers,
distributors, releasers, instructors, promoters and sellers of PFAS
containing AFFF products or underlying PFAS containing chemicals
used in AFFF production.[BN]
The Plaintiff is represented by:
Gregory A. Cade, Esq.
Gary A. Anderson, Esq.
Kevin B. McKie, Esq.
ENVIRONMENTAL LITIGATION GROUP, P.C.
2160 Highland Avenue South
Birmingham, AL 35205
Phone: 205-328-9200
Facsimile: 205-328-9456
3M COMPANY: Banks Suit Removed to E.D. Kentucky
-----------------------------------------------
JAMIE BANKS AND CANDICE BANKS, HIS WIFE; JACKIE SEXTON AND BETTY
ANNE SEXTON, HIS WIFE; COHLEY HAYES; BOBBY BAKER; CHRIS COLLIER;
WILLIAM COLLIER; VERNON LEE POTTER AND DEBRA POTTER, HIS WIFE;
CHARLES YEARY; MARK SPANGLER AND DEBRA SPANGLER, HIS WIFE; LARRY
ADAMS AND BETTY ADAMS, HIS WIFE; LARRY WATTS AND EVELYNN WATTS, HIS
WIFE; ORVILLE MILLER; GENEVA COLLINS, EXECUTRIX OF THE ESTATE OF
ERNEST LEE COLLINS; BRENDA VIPPERMAN, EXECUTRIX OF THE ESTATE OF
JAMES VIPPERMAN; JAMES STEVENS AND NINA STEVENS, HIS WIFE; JEFFREY
RAMEY; JEREMY STURGILL AND TRACY STURGILL, HIS WIFE; GARY WATKINS
AND BETHANY WATKINS, HIS WIFE; CHARLES HALL AND WANDA HALL, HIS
WIFE; JEFF RATLIFF, JR.; JASON STAMPER AND MICHELLE STAMPER, HIS
WIFE; JOHN STURGILL AND RONNA STURGILL, HIS WIFE; SAM TILLEY AND
DEEDA TILLEY, HIS WIFE; JESSE BATES AND CHRISTINE BATES, HIS WIFE;
VIRGIL CANTRELL; CARL DUTY; RUSSEL HUNTER AND PHYLLIS HUNTER, HIS
WIFE; SAMMY ELSWICK AND DEBBIE ELSWICK, HIS WIFE; GEORGE TILLEY AND
KATRINA TILLEY, HIS WIFE; FRED FRAZIER; IBRAHIM AHMED AND ANNA
AHMED, HIS WIFE; DOUGLAS BENSON AND WANITA BENSON, HIS WIFE;
WILLIAM STEVENS AND MELINDA STEVENS, HIS WIFE; MICHAEL CONN AND
TABITHA CONN, HIS WIFE; CARL LEWIS AND OSSIE LEWIS, HIS WIFE;
DAUPHUS DAY AND YVONNE DAY, HIS WIFE; JOHNNY BREEDING; JAMES
FRAZIER AND SHEILA FRAZIER, HIS WIFE; CLYDE BENTLEY AND SANDRA
BENTLEY, HIS WIFE; OLLIE PROFFIT, EXECUTRIX OF THE ESTATE OF DENNIS
PROFITT; ANTHONY BARKER; BRIAN ADAMS AND NANCY ADAMS, HIS WIFE; IKE
KIDD AND DEBBIE KIDD, HIS WIFE; LARRY ADAMS AND JERRI ADAMS, HIS
WIFE; SAMMY WRIGHT AND CAROL SUE WRIGHT, HIS WIFE; CHARLES CORNETT;
WILLIAM FRENCH AND CHOUNG FRENCH, HIS WIFE; OSCAR COLLINS AND
BARBARA ANN COLLINS, HIS WIFE; HAGEL CAMPBELL AND LILLIE RENEE
CAMPBELL, HIS WIFE; BOBBY BALTHIS AND RITA BALTHIS, HIS WIFE; JIMMY
WEBB AND ANETTA WEBB, HIS WIFE; KEVIN SEXTON AND MELISSA SEXTON,
HIS WIFE; LORAINE BELCHER, EXECUTRIX OF THE ESTATE OF RUSSELL
BELCHER; DARWIN MULLINS; ELAINE POLLY, EXECUTRIX OF THE ESTATE OF
DOUGLAS POLLY; BARRY HONAKER AND KELLY HONAKER, HIS WIFE; RICKY
SPARKS AND EUGINA SPARKS, HIS WIFE; ROGER CAUDILL AND SHARON
CAUDILL, HIS WIFE; STEWART HAMILTON; RICHARD ADAMS AND CAITLIN
BATES, HIS WIFE; PAUL JONES; HAROLD GIBSON AND THERESA GIBSON, HIS
WIFE; JOSEPH HATTON AND ELEXAS HATTON, HIS WIFE; MARK SEXTON AND
DIANA SEXTON, HIS WIFE; MICHAEL PACK AND CECILA PACK, HIS WIFE;
JOSEPH FIELDS; ROGER HATTON AND IDA HATTON, HIS WIFE; JACK LUCAS;
JASON LUCAS AND REBECCA LUCAS, HIS WIFE; FRED SLONE AND CHARLENE
SLONE, HIS WIFE; CLIFFORD HALCOMB AND LISA HALCOMB, HIS WIFE; DAVID
FIELDS AND JENNIFER FIELDS, HIS WIFE; OLIVER SEXTON AND BRENDA
SEXTON, HIS WIFE; GOMER SEXTON AND TEDDIE SEXTON, HIS WIFE; JACK
TRENT AND LOIS TRENT, HIS WIFE; WOODY BENTLEY AND CATHY BENTLEY,
HIS WIFE; RODNEY SLONE AND LISA SLONE, HIS WIFE; and those
similarly situated v. 3M COMPANY f/k/a MINNESOTA MINING AND
MANUFACTURING COMPANY, a foreign corporation; MINE SAFETY
APPLIANCES COMPANY, a foreign corporation; AMERICAN OPTICAL
CORPORATION, a foreign corporation; CABOT CSC CORPORATION, a
foreign corporation; CABOT CORPORATION, a foreign corporation;
AEARO TECHNOLOGIES, LLC; a foreign corporation; AEARO LLC, a
foreign corporation; MINE SERVICE COMPANY, INC., a Kentucky
corporation; NETWORK SUPPLY A/K/A NETWORK SUPPLY, INC. A/K/A
ROSWELL, INC., a Kentucky Corporation; REGINA MINE SUPPLY, INC., a
former Kentucky corporation; CARBON MINE SUPPLY, LLC, a former
Kentucky corporation; M & M MINE SUPPLY, INC., a Kentucky
corporation; KENTUCKY MINE SUPPLY COMPANY, a Kentucky corporation,
Case No. 21-CI 204 was removed from the Circuit Court of Letcher
County, Kentucky to the United States District Court for the
Eastern District of Kentucky, Southern Division at Pikeville on
Oct. 25, 2021, and assigned Case No. 7:21-cv-00083-DLB.
The case presents a federal question because the Complaint alleges
that 3M and other Respirator Defendants misled a federal agency --
National Institute for Occupational Safety and Health (NIOSH) --
for decades. These fraud-on-NIOSH allegations, the lynchpin of
Plaintiffs' claims, implicate important national interests meriting
a federal forum. Diversity jurisdiction also exists because
Plaintiffs are citizens of different states than all properly
joined Defendants. The non-diverse Defendants--the Supplier
Defendants, who allegedly sold respirators to Plaintiffs' coal mine
employers--are improperly joined. Under Kentucky's Middleman
Statute, Plaintiffs have no claim against the Suppliers. Even
accepting the facts asserted in the Complaint as true, the
Suppliers had no reason to conclude that 3M's respirators were
defective, and therefore cannot be liable for alleged defects in
those products.[BN]
The Defendants are represented by:
Byron N. Miller, Esq.
Michael J. Bender, Esq.
THOMPSON MILLER & SIMPSON PLC
734 West Main Street, Suite 400
Louisville, KY 40202
Phone: (502) 585-9900
Facsimile: (502) 585-9993
Email: bmiller@tmslawplc.com
mbender@tmslawplc.com
mhess@tmslawplc.com
mhendricks@tmslawplc.com
- and -
Bryant J. Spann, Esq.
Robert H. Akers, Esq.
THOMAS COMBS & SPANN
300 Summers Street, Suite 1380
Charlestown, WV 25301
Phone: (304) 414-1800
Facsimile: (304) 414-1801
Email: BSpann@tcspllc.com
RAkers@tcspllc.com
JBrowne@tcspllc.com
LGibson@tcspllc.com
3M COMPANY: Combs Suit Removed to E.D. Kentucky
-----------------------------------------------
BARM COMBS AND PATRICA COMBS, HIS WIFE; ALLEN SEXTON AND BETTY
SEXTON, HIS WIFE; LUTHER SERGENT; JOHN PAUL CARROLL AND MARLENE
CARROLL, HIS WIFE; JIMMY COMBS; DONNIE AKERS AND MONICA AKERS, HIS
WIFE; BRENDA LAWSON, EXECUTRIX OF THE ESTATE OF JIMMY DALE LAWSON;
EMETT HAMILTON AND CATHERINE ANN HAMILTON, HIS WIFE; LARRY TACKETT;
JENNIFER TACKETT, EXECUTRIX OF THE ESTATE OF HARVEY HOWELL; JOEY
MAYNARD AND CHANDRA MAYNARD, HIS WIFE; ADAM AKERS AND HEATHER
AKERS, HIS WIFE; WILLIE PATTON; LARRY LONGWORTH AND KAREN
LONGWORTH, HIS WIFE; DONALD HOWARD; JAY BATES; DARRIN NEWSOME AND
TRACY NEWSOME, HIS WIFE; CLIFFORD PITTMAN AND PATSY PITTMAN, HIS
WIFE; JIMMY STRUNK AND THERESA STRUNK, HIS WIFE; HARLAN HALL AND
KASEY HALL, HIS WIFE; BRENT JOHNSON; JOHNNY GAYHEART AND JACQUELINE
GAYHEART, HIS WIFE; LARRY KISER JR. AND ANASTASIA KISER, HIS WIFE;
FLOYD TAYLOR AND ROSALEE TAYLOR, HIS WIFE; DONALD JOHNSON AND GLEDA
JOHNSON, HIS WIFE; JAMES THORNSBERRY AND ROBIN THORNSBERRY, HIS
WIFE; SCOTTY PRATT AND AMELIA PRATT, HIS WIFE; LENVILLE NEWSOME AND
GLENDA NEWSOME, HIS WIFE; DERRICK MARTIN AND STAR MARTIN, HIS WIFE;
MARK MINIX AND JENNIFER MINIX, HIS WIFE; MICHAEL NEWSOME AND DONNA
NEWSOME, HIS WIFE; JAMES HOLBROOK; and those similarly situated v.
3M COMPANY f/k/a MINNESOTA MINING AND MANUFACTURING COMPANY, a
foreign corporation; MINE SAFETY APPLIANCES COMPANY, a foreign
corporation; AMERICAN OPTICAL CORPORATION, a foreign corporation;
CABOT CSC CORPORATION, a foreign corporation; CABOT CORPORATION, a
foreign corporation; AEARO TECHNOLOGIES, LLC; a foreign
corporation; AEARO LLC, a foreign corporation; MINE SERVICE
COMPANY, INC., a Kentucky corporation; NETWORK SUPPLY A/K/A NETWORK
SUPPLY, INC. A/K/A ROSWELL, INC., a Kentucky Corporation; REGINA
MINE SUPPLY, INC., a former Kentucky corporation; CARBON MINE
SUPPLY, LLC, a former Kentucky corporation; M & M MINE SUPPLY,
INC., a Kentucky corporation; KENTUCKY MINE SUPPLY COMPANY, a
Kentucky corporation, Case No. 21-CI-197 was removed from the
Circuit Court of Knott County, Kentucky to the United States
District Court for the Eastern District of Kentucky, Southern
Division at Pikeville on Oct. 25, 2021, and assigned Case No.
7:21-cv-00084-REW-EBA.
The case presents a federal question, because the Complaint alleges
that 3M and other Respirator Defendants misled a federal agency --
National Institute for Occupational Safety and Health (NIOSH) --
for decades. These fraud-on-NIOSH allegations, the lynchpin of
Plaintiffs' claims, implicate important national interests meriting
a federal forum. Diversity jurisdiction also exists because
Plaintiffs are citizens of different states than all properly
joined Defendants. The non-diverse Defendants--the Supplier
Defendants, who allegedly sold respirators to Plaintiffs' coal mine
employers--are improperly joined. Under Kentucky's Middleman
Statute, Plaintiffs have no claim against the Suppliers. Even
accepting the facts asserted in the Complaint as true, the
Suppliers had no reason to conclude that 3M's respirators were
defective, and therefore cannot be liable for alleged defects in
those products.[BN]
The Defendants are represented by:
Byron N. Miller, Esq.
Michael J. Bender, Esq.
THOMPSON MILLER & SIMPSON PLC
734 West Main Street, Suite 400
Louisville, KY 40202
Phone: (502) 585-9900
Facsimile: (502) 585-9993
Email: bmiller@tmslawplc.com
mbender@tmslawplc.com
mhess@tmslawplc.com
mhendricks@tmslawplc.com
- and -
Bryant J. Spann, Esq.
Robert H. Akers, Esq.
THOMAS COMBS & SPANN
300 Summers Street, Suite 1380
Charlestown, WV 25301
Phone: (304) 414-1800
Facsimile: (304) 414-1801
Email: BSpann@tcspllc.com
RAkers@tcspllc.com
JBrowne@tcspllc.com
LGibson@tcspllc.com
3M COMPANY: Cox Suit Alleges Complications From AFFF Products
-------------------------------------------------------------
MATTHEW COX, 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-03656-RMG
(D.S.C., November 6, 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.
The case arises from severe personal injuries 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 liver cancer, alleges 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.
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: Fair Suit Claims Toxic Exposure From AFFF Products
--------------------------------------------------------------
RAYMOND FAIR, 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-03655-RMG
(D.S.C., November 6, 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.
The case arises from severe personal injuries 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 skin cancer, the suit alleges.
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: Hixon Sues Over Exposure to Toxic Film-Forming Foams
----------------------------------------------------------------
Dennis Leroy Hixon, and other similarly situated v. 3M COMPANY
(f/k/a Minnesota Mining and Manufacturing, Co.), AGC CHEMICALS
AMERICAS, INC., AGC, INC. (f/k/a Asahi Glass Co., Ltd.), AMEREX
CORPORATION, ARCHROMA MANAGEMENT, LLC, ARCHROMA U.S., INC., ARKEMA,
INC., individually and as successor-in-interest to Atofina, S.A.,
BASF CORPORATION, individually and as successor-in-interest to
Ciba, Inc., BUCKEYE FIRE EQUIPMENT CO., CARRIER GLOBAL CORPORATION,
individually and as successor-interest to Kidde-Fenwal, Inc.,
CHEMDESIGN PRODUCTS, INC., CHEMGUARD, INC., CHEMICALS, INC., CHUBB
FIRE, LTD., CLARIANT CORPORATION, CLARIANT CORPORATION,
individually and as successor-in-interest to Sandoz Chemical
Corporation, CORTEVA, INC., individually and as
successor-in-interest to DuPont Chemical Solutions Enterprise,
DEEPWATER CHEMICALS, INC., DUPONT DE NEMOURS, INC., individually
and as successor-in-interest to DuPont Chemical Solutions
Enterprise, DYNAX CORPORATION, E.I. DUPONT DE NEMOURS & COMPANY,
individually and as successor-in-interest to DuPont Chemical
Solutions Enterprise, KIDDE-FENWAL, INC., individually and as
successor-in-interest to Kidde Fire Fighting, Inc., KIDDE PLC,
INC., NATION FORD CHEMICAL COMPANY, NATIONAL FOAM, INC., THE
CHEMOURS COMPANY, individually and as successor-in-interest to
DuPont Chemical Solutions Enterprise, THE CHEMOURS COMPANY FC, LLC,
individually and as successor-in-interest to DuPont Chemical
Solutions Enterprise, TYCO FIRE PRODUCTS LP, as
successor-in-interest to The Ansul Company, UNITED TECHNOLOGIES
CORPORATION, and UTC FIRE & SECURITY AMERICAS CORPORATION (f/k/a GE
Interlogix, Inc.), Case No. 2:21-cv-03538-RMG (D.S.C., Oct. 27,
2021), is brought for damages for personal injury resulting from
exposure to aqueous film-forming foams ("AFFF") containing the
toxic chemicals collectively known as per and polyfluoroalkyl
substances ("PFAS"). PFAS includes, but is not limited to,
perfluorooctanoic acid ("PFOA") and perfluorooctane sulfonic acid
("PFOS") and related chemicals including those that degrade to PFOA
and/or PFOS.
According to the complaint, AFFF is a specialized substance
designed to extinguish petroleum-based fires. It has been used for
decades by military and civilian firefighters to extinguish fires
in training and in response to Class B fires. The Defendants
collectively designed, marketed, developed, manufactured,
distributed, released, trained users, produced instructional
materials, promoted, sold, and/or otherwise released into the
stream of commerce AFFF with knowledge that it contained highly
toxic and bio persistent PFASs, which would expose end users of the
product to the risks associated with PFAS. Further, the Defendants
designed, marketed, developed, manufactured, distributed, released,
trained users, produced instructional materials, promoted, sold
and/or otherwise handled and/or used underlying chemicals and/or
products added to AFFF which contained PFAS for use in
firefighting.
PFAS binds to proteins in the blood of humans exposed to the
material and remains and persists over long periods of time. Due to
their unique chemical structure, PFAS accumulates in the blood and
body of exposed individuals. PFAS are highly toxic and carcinogenic
chemicals. Defendants knew, or should have known, that PFAS remain
in the human body while presenting significant health risks to
humans.
The Defendants' PFAS-containing AFFF products were used by the
Plaintiff in their intended manner, without significant change in
the products' condition. Plaintiff was unaware of the dangerous
properties of the Defendants' AFFF products and relied on the
Defendants' instructions as to the proper handling of the products.
Plaintiff's consumption, inhalation and/or dermal absorption of
PFAS from Defendant's AFFF products caused Plaintiff to develop the
serious medical conditions and complications alleged herein.
Through this action, the Plaintiff seeks to recover compensatory
and punitive damages arising out of the permanent and significant
damages sustained as a direct result of exposure to the Defendants'
AFFF products at various locations during the course of Plaintiff's
training and firefighting activities. Plaintiff further seeks
injunctive, equitable, and declaratory relief arising from the
same, says the complaint.
The Plaintiff regularly used, and was thereby directly exposed to,
AFFF in training and to extinguish fires during his working career
as a military and/or civilian firefighter and was diagnosed with
kidney cancer as a result of exposure to Defendants' AFFF
products.
The Defendants are designers, marketers, developers, manufacturers,
distributors, releasers, instructors, promoters and sellers of PFAS
containing AFFF products or underlying PFAS containing chemicals
used in AFFF production.[BN]
The Plaintiff is represented by:
Gregory A. Cade, Esq.
Gary A. Anderson, Esq.
Kevin B. McKie, Esq.
ENVIRONMENTAL LITIGATION GROUP, P.C.
2160 Highland Avenue South
Birmingham, AL 35205
Phone: 205-328-9200
Facsimile: 205-328-9456
3M COMPANY: Mounts Suit Removed to E.D. Kentucky
------------------------------------------------
CHARLES MOUNTS; LARRY EPLING AND MABEL•EPLING, HIS WIFE; STEPHAN
CASE AND CRYSTAL CASE, HIS WIFE; LARRY NEWSOME; RICKEY WRIGHT AND
REBECCA WRIGHT, HIS WIFE; STEPHEN JUSTICE; LANGLEY SMITH; JOHN
PHILLIPS AND AMY PHILLIPS, HIS WIFE; DONNIE REYNOLDS AND LINDA
REYNOLDS, HIS WIFE; CALVIN GREGORY AND MARSHA GREGORY, HIS WIFE;
JAMES TACKETT AND JUANITA TACKETT, HIS WIFE; LORETTA HORNE,
EXECUTRIX OF THE ESTATE OF JACK HORNE; ROBERT DAMRON; JAMES MARTIN;
CHRISTOPHER SMITH AND REBECCA SMITH, HIS WIFE; ELLIS AKERS AND
LASHER! AKERS, HIS WIFE; STEVEN BAKER; ESTILL JARVIS AND ARLINDA
JARVIS, HIS WIFE; JEFF RATLIFF SR AND MELINDA RATLIFF, HIS WIFE;
BRIAN THACKER AND LEANN THACKER, HIS WIFE; RANDOLPH HARDIN; RANDY
WOLFORD AND KAREN WOLFORD, HIS WIFE; SHELBY DAYLONG; JAMES GIBSON
AND JUDY GIBSON, HIS WIFE; WILLIAM STANLEY AND JACKIE STANLEY, HIS
WIFE; RAYMOND MILLER AND THERESA MILLER, HIS WIFE; FREDDIE BOWLING
AND BRENDA BOWLING, HIS WIFE; GREG COLEY AND DAWN COLEY, HIS WIFE;
BRIAN HARRIS AND ANITA HARRIS, HIS WIFE; HAROLD BALTHIS AND ROSE
BALTHIS, HIS WIFE; WILLIAM MCFARLAND JR AND AV A MCFARLAND, HIS
WIFE; KEVIN BEVINS AND RIKKA BEVINS, HIS WIFE; RICHARD. FULLER AND
KAREN FULLER, HIS WIFE; KURT SANDLIN AND ERICA SANDLIN, HIS WIFE;
VENT MEADOWS; JAMIE HAMILTON AND EMILY HAMILTON, HIS WIFE; RICHARD
BROWNING AND JENNIFER BROWNING, HIS WIFE; NORMAN PAGE AND KIMBERLY
PAGE, HIS WIFE; JULIAN ADKINS AND PHEOBE ADKINS, HIS WIFE; JEFFREY
PINSON AND STACIE PINSON, HIS WIFE; WINDELL AUSTIN AND DARCUS
AUSTIN, HIS WIFE; PAUL STANLEY; JEFFREY MARTIN; MICHAEL SEXTON AND
PEGGY SEXTON, HIS WIFE; BOBBY MULLINS; DAVID MAGGARD AND REGINA
MAGGARD, HIS WIFE; RICHARD HENSON; PHILLIP THACKER AND TAMMY
THACKER, HIS WIFE; CHARLES MCCLANAHAN; ROBERT LITTLE AND KAMELA
LITTLE, HIS WIFE; JEFF MILLER AND KATHRYN MILLER, HIS WIFE; JOHN
BARKER; MOSES SANDERS; JEFFREY KINDER; ANTHONY HALL AND TONYA HALL,
HIS WIFE; EUGENE COLEMAN AND BALINDA COLEMAN, HIS WIFE; ALVIN
SPANGLER AND JUANITA SPANGLER, HIS WIFE; CARL NORMAN; RONALD LESTER
AND HATTIE LESTER, HIS WIFE; JONATHAN CRISP; JAMES WHITT; TONY
STEWART AND DONNA STEWART, HIS WIFE; ROBERT GOFF; KERMIT SWINEY;
KEVIN BENTLEY; PALMER SLONE AND JEAN SLONE, HIS WIFE; TIM TOTTEN
AND JENNIFER TOTTEN, HIS WIFE; RODIE VARNEY AND INEZ VARNEY, HIS
WIFE; ROY JOHNSON AND DEBRA JOHNSON, HIS WIFE; GREG SMITH; AUDIE
MURPHY AND CHRISTINE MURPHY, HIS WIFE; DANIEL COOTS AND HEATHER
COOTS, HIS WIFE; LEON EPLING AND RHONDA EPLING, HIS WIFE; JAMES
THACKER; ROBERT SEXTON AND CONNIE SEXTON, HIS WIFE; SASHA MCKINNEY
AND STEPHANIE MCKINNEY, ADMINISTRATORS OF THE ESTATE OF STEVIE
MCKINNEY; SAMMY MULLINS; LORA BLANKENSHIP AND MAGGIE BLANKENSHIP,
HIS WIFE; HERMAN LITTLE AND ANGELA LITTLE, HIS WIFE; LARRY LEE
MOUNTS AND JENNIFER MOUNTS, HIS WIFE; VALERIE HORN, EXECUTRIX OF
THE ESTATE OF JAMES HORN; DARRIUS COLEMAN; RICKY SWINEY AND RHONDA
SWINEY, HIS WIFE; LLOYD CARROL AND ANGELA CARROLL, HIS WIFE; JAMES
CLINE AND MELISSA CLINE, HIS WIFE; CHARLES SCOTT; AMANDA HAMILTON,
EXECUTRIX OF THE ESTATE OF GARY HAMILTON; DANIEL MEADE AND DANYEL
MEADE, HIS WIFE; TEDDY NEWSOME; SIDNEY WOLFORD; HERMAN WALLEN;
TRAVIS JOHNSON; MICHAEL BLACKBURN; TIMMY PRICE AND EADIE PRICE, HIS
WIFE; DAVID COLLINS AND NILA COLLINS, HIS WIFE; DONALD RATLIFF AND
DELORES RATLIFF, HIS WIFE; RICHARD MULLINS AND MELISSA MULLINS, HIS
WIFE; THOMAS DAMRON; TERRY CASEY AND ANGELA CASEY, HIS WIFE; ROY
COLLINS AND JODI COLLINS, HIS WIFE; NICKIE SIFERS AND DARLENA
SIFERS, HIS WIFE; ROGER MATNEY AND RUBY MATNEY, HIS WIFE; IRENE
KISER, EXECUTRIX OF THE ESTATE OF LARRY KISER; CARROL DERRY,
EXECUTRIX OF THE ESTATE OF SCOTTY DERRY; JACKIE FRANCIS AND JOANN
FRANCIS, HIS WIFE; GARY ADKINS; JASON BLANKENSHIP AND MELISSA
BLANKENSHIP, HIS WIFE; CHRISTOPHER GOOD AND BRANDY GOOD, HIS WIFE;
BURBON KENDRICK AND HELENA KENDRICK, HIS WIFE; EDGAR SCOTT NEWMAN
AND RHONDA. NEWMAN, HIS WIFE; BARRY NEWSOME; TERRY ANDERSON AND
BETTY ANDERSON, HIS WIFE; CRAIG DAMRON AND MELINDA DAMRON, HIS
WIFE; ARCHIE HALL; TERRY NEWSOME; RONNIE MULLINS; JODY HALL AND
BELIND HALL, HIS WIFE; JEFFERY TACKETT AND DONNA TACKETT, HIS WIFE;
WAYNE NEWSOME AND GLORIA NEWSOME, HIS WIFE; DONNIE MULLINS AND
WILMA MULLINS, HIS WIFE; JOSEPH MULLINS AND HOPE MULLINS, HIS WIFE;
RONNIE WRIGHT AND BRENDA WRIGHT, HIS WIFE; DUSTIN JUSTICE AND
COURTNEY JUSTICE, HIS WIFE; THOMAS WRIGHT AND SHERRY WRIGHT, HIS
WIFE; JAMES YONTS AND BETSY YONTS, HIS WIFE; BRIAN JOHNSON AND
JESSICA JOHNSON, HIS WIFE; KEVIN THACKER AND BRIDGET THACKER, HIS
WIFE; EDDIE HALL AND KIM HALL, HIS WIFE; CARMELLA VARNEY, EXECUTRIX
OF THE ESTATE OF GREG VARNEY; LONNIE BAKER AND DARLENE BAKER, HIS
WIFE; ROYAL JOHNSON; INARD ANDERSON AND MAGGIE ANDERSON, HIS WIFE;
ANDY THACKER AND IRIS THACKER, HIS WIFE; TERRY RILEY AND MARY
RILEY, HIS WIFE; LLOYD NEWSOM; JOHN CURE JR AND KIM CURE, HIS WIFE;
JAMES LAYNE AND JACQUELINE LAYNE, HIS WIFE; JORDAN TACKETT; JERRY
NEWSOME; ALBERT MATNEY AND DARLENE MATNEY, HIS WIFE; JOEY JUDE;
CLARK AKERS; STEVIE HAMILTON; KENNETH ALLEN AND SHANNA ALLEN, HIS
WIFE; KENNETH CAUDILL AND TINA CAUDILL, HIS WIFE; MITCHELL SALYERS
AND RUBY SALYERS, HIS WIFE; JACKIE WRIGHT AND BETTY WRIGHT, HIS
WIFE; MICHALE ARNETT; FRANKIE MYERS; DORIS OSBOURNE AND DONNA
OSBOURNE, HIS WIFE; NEIL CHAPMAN AND SABRINA CHAPMAN, HIS WIFE;
WILLIAM NEWSOME JR AND KAREN NEWSOME, HIS WIFE; EDDIE BACK AND
MARLENE BACK, HIS WIFE; GENE DANIELS; JERRY MOORE AND STACEY MOORE,
HIS WIFE; CHARLES BLANKENSHIP AND STELLA BLANKENSHIP, HIS WIFE;
RODNEY MCINTOSH AND DEBBIE MCINTOSH, HIS WIFE; CARL ANDERSON;
MARVIN JERVIS; BOBBY KINCER AND JACQUELINE KINCER, HIS WIFE; ROGER
KENDRICK AND ANDRA KENDRICK, HIS WIFE; TEDDY HUNT AND PAMELA HUNT,
HIS WIFE; TODD DYES; WILLIAM BACK AND TERA BACK, HIS WIFE; MICHAEL
ELSWICK AND DREMA ELSWICK, HIS WIFE; CHIRSTOPHER MAYNARD AND ANGELA
MAYNARD, HIS WIFE; STEVEN BENTLEY AND PATRICIA BENTLEY, HIS WIFE;
CHARLES PEASE AND IMOGENE PEASE, HIS WIFE; WILLIE MCCOY AND BRENDA
MCCOY; HIS WIFE; LOIS SPRADLIN AND JAMES SPRADLIN, HER HUSBAND;
DANNY COMPTON AND RHONDA COMPTON, HIS WIFE; RONNIE BOWLING AND
TAMMY BOWLING, HIS WIFE; RICKY RUNYON AND DEBORAH RUNYON, HIS WIFE;
KENNETH RAY DAMRON; JAMES ADKINS; BRETT GAYHEART AND BRENDA
GAYHEART, HIS WIFE; RONNIE ADKINS; PAUL CASTLE; ROGER BARNETTE AND
PAULINE BARNETTE, HIS WIFE; JOHNNY SPEARS AND GRETA SPEARS, HIS
WIFE; THOMAS THACKER AND KRISTY THACKER, HIS WIFE; BENJAMIN ADAMS
AND ROSETTA ADAMS, HIS WIFE; JEFFERY FULLER AND RUTH FULLER, HIS
WIFE; SONNY DALES AND MICHELLE DALES, HIS WIFE; STELLA MUSIC,
EXECUTRIX OF THE ESTATE OF BILLY MUSIC; JUSTINE HAMILTON, EXECUTRIX
OF THE ESTATE OF JAN HAMILTON; JOHNNY TACKETT AND TRACY TACKETT,
HIS WIFE; RICK MOORE; DAREN SEXTON; MARTIN MINIX AND LINDA MINIX,
HIS WIFE; DUSTIN HALL AND HILLARY HALL, HIS WIFE; RAYMOND SANDERS
AND DONNA SANDERS, HIS WIFE; and those similarly situated v. 3M
COMPANY f/k/a MINNESOTA MINING AND MANUFACTURING COMPANY, a foreign
corporation; MINE SAFETY APPLIANCES COMPANY, a foreign corporation;
AMERICAN OPTICAL CORPORATION, a foreign corporation; CABOT CSC
CORPORATION, a foreign corporation; CABOT CORPORATION, a foreign
corporation; AEARO TECHNOLOGIES, LLC; a foreign corporation; AEARO
LLC, a foreign corporation; MINE SERVICE COMPANY, INC., a Kentucky
corporation; NETWORK SUPPLY A/K/A NETWORK SUPPLY, INC. A/K/A
ROSWELL, INC., a Kentucky Corporation; REGINA MINE SUPPLY, INC., a
former Kentucky corporation; CARBON MINE SUPPLY, LLC, a former
Kentucky corporation; M & M MINE SUPPLY, INC., a Kentucky
corporation; KENTUCKY MINE SUPPLY COMPANY, a Kentucky corporation,
Case No. 21-CI-807 was removed from the Circuit Court of Pike
County, Kentucky, to the United States District Court for the
Eastern District of Kentucky, Southern Division at Pikeville on
Oct. 25, 2021, and assigned Case No. 7:21-cv-00086-DLB.
The case presents a federal question, because the Complaint alleges
that 3M and other Respirator Defendants misled a federal agency
(NIOSH) for decades. These fraud-on-NIOSH allegations, the lynchpin
of Plaintiffs' claims, implicate important national interests
meriting a federal forum. Diversity jurisdiction also exists
because Plaintiffs are citizens of different states than all
properly joined Defendants. The non-diverse Defendants--the
Supplier Defendants, who allegedly sold respirators to Plaintiffs'
coal mine employers--are improperly joined. Under Kentucky's
Middleman Statute, Plaintiffs have no claim against the Suppliers.
Even accepting the facts asserted in the Complaint as true, the
Suppliers had no reason to conclude that 3M's respirators were
defective, and therefore cannot be liable for alleged defects in
those products.[BN]
The Defendants are represented by:
Byron N. Miller, Esq.
Michael J. Bender, Esq.
THOMPSON MILLER & SIMPSON PLC
734 West Main Street, Suite 400
Louisville, KY 40202
Phone: (502) 585-9900
Facsimile: (502) 585-9993
Email: bmiller@tmslawplc.com
mbender@tmslawplc.com
mhess@tmslawplc.com
mhendricks@tmslawplc.com
- and -
Bryant J. Spann, Esq.
Robert H. Akers, Esq.
THOMAS COMBS & SPANN
300 Summers Street, Suite 1380
Charlestown, WV 25301
Phone: (304) 414-1800
Facsimile: (304) 414-1801
Email: BSpann@tcspllc.com
RAkers@tcspllc.com
JBrowne@tcspllc.com
LGibson@tcspllc.com
AARP INC: Court Junks Krukas Suit for Lack of Standing
------------------------------------------------------
In the class action lawsuit captioned as HELEN KRUKAS, et al., v.
AARP, INC., et al., Case No. 1:18-cv-01124-BAH (D.D.C.), the Hon.
Judge Beryl A. Howell entered an order:
1. granting the defendants' motion for summary judgment;
2. dismissing the case for lack of standing;
3. denying as moot plaintiffs' motion for class
certification, in light of the dismissal of this case; and
4. directing the Clerk of the Court to close the case.
AARP is a United States–based interest group focusing on issues
affecting those over the age of fifty. According to the
organization, it had more than 38 million members as of 2018.
A copy of the Court's order dated Nov. 2, 2021 is available from
PacerMonitor.com at https://bit.ly/3CYCJFT at no extra charge.[CC]
ACM RESEARCH: Hearing on Bid to Junk Kain Class Suit Set for Dec. 2
-------------------------------------------------------------------
ACM Research, Inc. said in its Form 10-Q Report filed with the
Securities and Exchange Commission on November 5, 2021, for the
quarterly period ended September 30, 2021, that the Defendants'
motion to dismiss case captioned Kain v. ACM Research, Inc., et
al., No. 3:20-cv-09241 is scheduled to be heard on December 2.
On December 21, 2020, a putative class action lawsuit against ACM
and three of its officers was filed in the U.S. District Court for
the Northern District of California under the caption Kain v. ACM
Research, Inc., et al., No. 3:20-cv-09241.
The complaint alleges claims under Sections 10(b) and 20(a) of the
Securities Exchange Act of 1934 and Rule 10b-5 promulgated
thereunder, and seeks monetary damages in an unspecified amount as
well as costs and expenses incurred in the litigation.
On April 15, 2021, the court appointed Mr. Jeffrey Kain as lead
plaintiff, finding that no better-suited candidates emerged during
the statutory sixty-day period following public notice of the
lawsuit.
On May 27, 2021, defendants filed a motion to dismiss Mr. Kain's
complaint.
On September 9, 2021, the court granted defendants' motion to
dismiss with leave to amend.
On October 7, 2021, Mr. Kain filed a second amended complaint. On
October 21, 2021, defendants filed a motion to dismiss Mr. Kain's
second amended complaint.
Defendants' motion to dismiss is currently scheduled to be heard by
the court on December 2, 2021.
ACM's management believes the claims are without merit and intends
to vigorously defend this litigation.
The Company is currently unable to predict the outcome of this
lawsuit and therefore cannot determine the likelihood of loss or
estimate a range of possible loss.
ACM Research, Inc. supplies advanced, innovative capital equipment
developed for the global semiconductor industry. Fabricators of
advanced integrated circuits, or chips, can use the company's
wet-cleaning and other front-end processing tools in numerous steps
to improve product yield, even at increasingly advanced process
nodes. The company is based in Fremont, California.
AEP TRANSMISSION: Bid to Nix Ohio House Bill 6 Related Suit Pending
-------------------------------------------------------------------
AEP Transmission Company, LLC said in its Form 10-Q Report filed
with the Securities and Exchange Commission on October 28, 2021,
for the quarterly period ended September 30, 2021, that the court
has scheduled oral argument for November 23, 2021 on the motion to
dismiss the putative class action suit initiated by its shareholder
in connection to public corruption with respect to the passage of
House Bill 6.
In August 2020, an AEP shareholder filed a putative class action
lawsuit in the United States District Court for the Southern
District of Ohio against AEP and certain of its officers for
alleged violations of securities laws.
The amended complaint alleges misrepresentations or omissions by
AEP regarding: (a) its alleged participation in or connection to
public corruption with respect to the passage of HB 6 and (b) its
regulatory, legislative, political contribution, 501(c)(4)
organization contribution and lobbying activities in Ohio.
The complaint seeks monetary damages, among other forms of relief.
On May 10, 2021, the defendants filed a motion to dismiss the
securities litigation for failure to state a claim and the motion
was fully briefed as of July 26, 2021.
The Court has scheduled oral argument for November 23, 2021 on the
motion to dismiss.
The company will continue to defend against the claims. Management
is unable to determine a range of potential losses that is
reasonably possible of occurring.
AEP Transmission Company, LLC offers utility services. The Company
supplies electricity and natural gas. AEP Transmission serves
customers in the United States.
ALCOA CORPORATION: Mediation in Lavoie Class Suit Ongoing
---------------------------------------------------------
Alcoa Corporation said in its Form 10-Q Report filed with the
Securities and Exchange Commission on October 28, 2021, for the
quarterly period ended September 30, 2021, that the mediation in
the class action suit initiated by Dany Lavoie, is ongoing.
In August 2005, Dany Lavoie, a resident of Baie Comeau in the
Canadian Province of Quebec, filed a Motion for Authorization to
Institute a Class Action and for Designation of a Class
Representative against Alcoa Canada Ltd., Alcoa Limitee, Societe
Canadienne de Metaux Reynolds Limitee and Canadian British Aluminum
in the Superior Court of Quebec in the District of Baie Comeau,
alleging that defendants, as the present and past owners and
operators of an aluminum smelter in Baie Comeau, had negligently
allowed the emission of certain contaminants from the smelter on
the lands and houses of the St. Georges neighborhood and its
environs causing property damage and health concerns.
In May 2007, the court authorized a class action suit on behalf of
all people who suffered property or personal injury damages caused
by the emission of polycyclic aromatic hydrocarbons from the
Company's aluminum smelter in Baie Comeau.
In September 2007, plaintiffs filed the claim against the original
defendants. The Soderberg smelting operations that plaintiffs
allege to be the source of emissions of concern ceased operations
in 2013 and have been dismantled.
A court appointed expert, engaged to perform analysis of the
potential impacts from the prior emissions in accordance with a
sampling protocol agreed to by the parties, submitted its report to
the court in May 2019.
In 2021, plaintiffs filed its amended claim and expert reports and
defendants filed its amended defense and expert reports.
A trial date is set for April 2022; however, in October 2021, the
parties participated in mediation and the mediation has not
concluded.
Alcoa Corporation is a global industry leader in bauxite, alumina,
and aluminum products. The Company is built on a foundation of
strong values and operating excellence dating back over 130 years
to the world-changing discovery that made aluminum an affordable
and vital part of modern life. The company is based in Pittsburgh,
Pennsylvania.
ALIERA COMPANIES: Albina Seeks to Certify Kentucky Resident Class
-----------------------------------------------------------------
In the class action lawsuit captioned as HANNA ALBINA and AUSTIN
WILLARD, individually and on behalf of others similarly situated,
v. THE ALIERA COMPANIES, INC., TRINITY HEALTHSHARE, INC., and
ONESHARE HEALTH, LLC d/b/a UNITY HEALTHSHARE, LLC, Case No.
5:20-cv-00496-JMH (E.D. Ky.), the Plaintiffs ask the Court to enter
an order:
1. certifying the following class of Plaintiffs against Aliera,
pursuant to FRCP 23:
"All persons who, while a Kentucky resident, purchased or
were covered by a plan from The Aliera Companies, Inc., and
Trinity HealthShare, Inc., that purported to be a "health
care sharing ministry"."
The Plaintiffs state that Aliera is in default and therefore has
waived its defenses to the lawsuit. In order to avoid prejudice to
the class members, who are Kentucky residents, judgment should be
entered forthwith on a classwide basis as that is the only way the
Kentucky class members can meaningfully participate in the Aliera's
ongoing liquidation process currently being carried out under
Georgia law through an "Assignment for Benefit of Creditors" that
has been made to Asset Recovery Associates Aliera, LLC, the
Plaintiffs contend.
The class should be certified because, based upon the allegation
admitted by Aliera's default, they have satisfied all criteria for
certification pursuant to FRCP 23(a) and have further satisfied the
additional criteria for class certification under FRCP 23(b)(3),
the Plaintiffs added.
A copy of the Plaintiffs' motion to certify class dated Nov. 4,
2021 is available from PacerMonitor.com at https://bit.ly/3qnxfkN
at no extra charge.[CC]
The Plaintiffs are represented by:
Jerome P. Prather, Esq.
141 North Broadway
Lexington, KY 40507
Telephone: (859) 254-9352
Facsimile: (859) 233-9769
E-mail: jprather@garmerprather.com
- and -
James J. Varellas III, Esq.
D. Todd Varellas, Esq
VARELLAS & VARELLAS
249 West Short Street, Suite 201
Lexington, KY 40507
Telephone: (859) 252-4473
Facsimile: (859) 252-4476
E-mail: jayvarellas@varellaslaw.com
tvarellas@varellaslaw.com
- and -
Richard E. Spoonemore, Esq.
Eleanor Hamburger, Esq.
SIRIANNI YOUTZ SPOONEMORE HAMBURGER PLLC
3101 Western Avenue, Suite 350
Seattle, WA 98121
Telephone.: (206) 223-0303
Facsimile: (206) 223-0246
E-mail: rspoonemore@sylaw.com
ehamburger@sylaw.com
- and -
William H. Anderson, Esq.
Stephen Pearson, Esq.
George Farah, Esq.
Rebecca P. Chang, Esq.
HANDLEY FARAH & ANDERSON PLLC
4730 Table Mesa Drive, Suite G-200
Boulder, CO 80305
Telephone: (303) 800-9109
Facsimile: (844) 300-1952
E-mail: wanderson@hfajustice.com
spearson@hfajustice.com
gfarah@hfajustice.com
rchang@hfajustice.com
ALIGN TECHNOLOGY: Settlement in Seb Investment Suit Gets Initial OK
-------------------------------------------------------------------
In the class action lawsuit captioned as SEB INVESTMENT MANAGEMENT
AB, Individually and on Behalf of All Others Similarly Situated, v.
ALIGN TECHNOLOGY, INC., JOSEPH M. HOGAN, and JOHN F. MORICI, Case
No. 5:18-cv-06720-LHK (N.D. Cal.), the Hon. Judge Lucy H. Koh
entered an order preliminarily approving settlement and providing
for notice as follows:
1. Proposed Class Certification for Settlement Purposes:
The Parties have proposed the certification of the
following Settlement Class pursuant to Rules 23(a) and (b)
(3) of the Federal Rules of 15 Civil Procedure and solely
for purposes of effectuating the proposed Settlement:
"all persons and entities 16 purchased or otherwise
acquired the common stock of Align between May 23, 2018
and October 24, 17 2018, both dates inclusive (the
"Settlement Class Period"), and who were damaged thereby;"
Excluded from the Settlement Class are: (I) Defendants;
(II) present or former executive officers and directors of
Align during the Settlement Class Period and their
Immediate Family Members; (III) any of the foregoing
entities' and individuals' legal representatives, heirs,
successors or assigns; and (IV) any entity in which
Defendants have or had a controlling interest, or any
affiliate of Align. For the avoidance of doubt,
"affiliates" are persons or entities that directly, or
indirectly through one or more intermediaries, control,
are controlled by or are under common control with one of
the Defendants;
Also excluded from the Settlement Class are any persons
and entities who or which submit a request for exclusion
from the Settlement Class that is accepted by the Court.
2. Preliminary Approval of the Settlement:
The Court hereby preliminarily approves the Settlement, as
embodied in the Stipulation, and finds, pursuant to Rule
23(e)(1)(B)(i) of the Federal Rules 14 of Civil Procedure.
3. Settlement Administration Fees and Expenses:
All reasonable costs incurred in identifying Settlement
Class Members and notifying them of the Settlement as well
as in administering the Settlement shall be paid as set
forth in the Stipulation.
4. Settlement Fund:
The contents of the Settlement Fund held by The Huntington
National Bank (which the Court approves as the Escrow
Agent) shall be deemed and considered to be in custodia
legis of the Court, and shall remain subject to the
jurisdiction of the Court, until such time as they shall
be distributed pursuant to the Stipulation and/or further
order(s) of the Court.
A copy of the Court's order dated Nov. 2, 2021 is available from
PacerMonitor.com at https://bit.ly/3D2IpyE at no extra charge.[CC]
ALIGN TECHNOLOGY: Web Site Not Accessible to Blind, Suit Alleges
----------------------------------------------------------------
ARTURO ESTEVEZ, individually, and on behalf of all others similarly
situated, plaintiff v. ALIGN TECHNOLOGY, INC., Defendant, Case
1:21-cv-08842 (S.D.N.Y., Oct. 28, 2021) alleges violation of the
Americans with Disabilities Act.
The Plaintiff alleges in the complaint that the Defendant's
Website, www.invisalignaccessories.com, is not fully or equally
accessible to blind and visually-impaired consumers, including the
Plaintiff, in violation of the ADA.
The Plaintiff seeks a permanent injunction to cause a change in the
Defendant's corporate policies, practices, and procedures so that
the Defendant's Web site will become and remain accessible to blind
and visually-impaired consumers.
ALIGN TECHNOLOGY, INC. designs, manufactures, and markets the
invisalign system, a method for treating the misalignment of teeth.
[BN]
The Plaintiff is represented by:
Jarrett S. Charo, Esq.
MIZRAHI KROUB LLP
200 Vesey Street, 24th Floor
New York, NY 10281
Telephone: (212) 595-6200
Facsimile: (212) 595-9700
Email: jcharo@mizrahikroub.com
ALLIED ACCOUNT: Leidner Suit Seeks Rule 23 Class Certification
--------------------------------------------------------------
In the class action lawsuit captioned as Pinkus Leidner,
individually and on behalf of all others similarly situated, v.
Allied Account Services, Inc.; and John Does 1-25, Case No.
1:21-cv-01905-AMD-RML (E.D.N.Y.), the Plaintiff asks the Court to
enter an order, pursuant to Rule 23 of the Federal Rules of Civil
Procedure, for class certification and such other and further
relief as the Court deems just and proper.
Allied Account is a collection agency located in Bellmore, New
York.
A copy of the Plaintiff's motion to certify class dated Nov. 5,
2021 is available from PacerMonitor.com at https://bit.ly/3F0tbei
at no extra charge.[CC]
The Plaintiff is represented by:
Eliyahu Babad, Esq.
STEIN SAKS, PLLC
One University Plaza, Ste. 620
Hackensack, NJ, 07601
Telephone: (201) 282-6500 ext. 121
E-mail: EBabad@SteinSaksLegal.
ALNYLAM PHARMA: No Appeal Filed on Denial of Bid to Amend Complaint
-------------------------------------------------------------------
Alnylam Pharmaceuticals, Inc. said in its Form 10-Q Report filed
with the Securities and Exchange Commission on October 28, 2021,
for the quarterly period ended September 30, 2021, that the
plaintiffs in a class action complaint filed Sept. 26, 2018 have
not filed a notice of appeal on the court's decision denying the
motion for leave to file an amended complaint.
A class action complaint was filed on Sept. 26, 2018 in the United
States District Court for the Southern District of New York (and
transferred to the United States District Court for the District of
Massachusetts by stipulation of the parties and Order of the Court
dated November 20, 2018).
The complaint, as amended, or the Complaint, alleged that the
company and its Chief Executive Officer, former Chief Financial
Officer and certain of our other executive officers violated
certain federal securities laws, specifically under Sections 10(b)
and 20(a) of the Exchange Act, and Rule 10b-5 promulgated
thereunder.
The plaintiff sought unspecified damages on behalf of a purported
class of purchasers of the company's common stock between September
20, 2017 and September 12, 2018.
On March 23, 2020, the Court granted the company's motion to
dismiss and dismissed the Complaint without prejudice, and
subsequently in March 2021 denied plaintiffs' motion seeking leave
to file a further amended complaint.
Plaintiffs did not file a notice of appeal from such denial.
Alnylam said, "This type of litigation is often expensive and
diverts management's attention and resources, which could adversely
affect the operation of our business. If we are ultimately required
to pay significant defense costs, damages or settlement amounts, in
excess of our insurance coverage, such payments could adversely
affect our operations."
Alnylam Pharmaceuticals, Inc., a biopharmaceutical company, focuses
on discovering, developing, and commercializing RNA interference
(RNAi) therapeutics. The company was founded in 2002 and is
headquartered in Cambridge, Massachusetts.
AMC ENTERTAINMENT: Parties Agree to Resolve Class Actions for $18MM
-------------------------------------------------------------------
AMC Entertainment Holdings, Inc. said in its Form 10-Q Report filed
with the Securities and Exchange Commission on November 8, 2021,
for the quarterly period ended September 30, 2021, that on Sept. 2,
the parties in two federal securities class actions reached an
agreement to resolve the suits for $18 million.
On January 12, 2018 and January 19, 2018, two putative federal
securities class actions, captioned Hawaii Structural Ironworkers
Pension Trust Fund v. AMC Entertainment Holdings, Inc., et al.,
Case No. 1:18-cv-00299-AJN (the "Hawaii Action"), and Nichols v.
AMC Entertainment Holdings, Inc., et al., Case No.
1:18-cv-00510-AJN (the "Nichols Action"), respectively, were filed
against the Company in the U.S. District Court for the Southern
District of New York.
The Actions, which name certain of the Company's officers and
directors and, in the case of the Hawaii Action, the underwriters
of the Company's February 8, 2017 secondary public offering, as
defendants, assert claims under Sections 11, 12(a)(2) and 15 of the
Securities Act of 1933 and Sections 10(b) and 20(a) of the
Securities Exchange Act of 1934 (the "Exchange Act") with respect
to alleged material misstatements and omissions in the registration
statement for the secondary public offering and in certain other
public disclosures.
On May 30, 2018, the court consolidated the Actions.
On January 22, 2019, defendants moved to dismiss the Second Amended
Class Action Complaint.
On September 23, 2019, the court granted the motion to dismiss in
part and denied it in part. On March 2, 2020, plaintiffs moved to
certify the purported class.
On March 30, 2021, the court granted the motion to certify the
class.
On September 2, 2021, the parties reached an agreement in principle
to resolve the Actions for $18 million.
The Company agreed to the settlement and the payment of the
settlement amount to eliminate the distraction, burden, expense,
and uncertainty of further litigation.
The Company and the other defendants continue to expressly deny any
liability or wrongdoing with respect to the matters alleged in the
Actions.
On November 1, 2021, the parties to the Actions signed a
stipulation of settlement, which memorialized the terms of the
agreement in principle, and which the plaintiffs filed with the
court.
Also on November 1, 2021, plaintiffs filed a motion to
preliminarily approve the settlement.
"The settlement remains subject to notice to class members and is
contingent upon final court approval," the Company said.
AMC is the largest movie theater chain in the world, operating 661
theaters in the U.S. The company directly operates cinemas in 33
Illinois communities, including six in Chicago, according to the
company's website.
AMERICA'S FOOD: Fails to Pay Proper Wages, Perez Suit Alleges
-------------------------------------------------------------
ANTONIO RAFAEL PEREZ, individually and on behalf of all other
similarly situated, Plaintiffs v. AMERICA'S FOOD BASKET LLC D/B/A
IDEAL FOOD BASKET SUPERMARKET; RAFAEL DOE; ANDRES DOE; and ESTEBAN
PEREZ, Defendants, Case 2:21-cv-06008 (E.D.N.Y., Oct. 28, 2021)
seeks to recover from the Defendants unpaid wages and overtime
compensation, interest, liquidated damages, attorneys' fees, and
costs under the Fair Labor Standards Act.
Plaintiff Perez was employed by the Defendants as staff.
AMERICA'S FOOD BASKET LLC D/B/A IDEAL FOOD BASKET SUPERMARKET
operates as a grocery chain featuring meat & produce departments,
other foods & household supplies. [BN]
The Plaintiff is represented by:
Michael Samuel, Esq.
THE SAMUEL LAW FIRM
1441 Broadway Suite 6085
New York, NY 10018
Telephone: (212) 563-9884
Email: michael@thesamuellawfirm.com
AMERICAN ACADEMY: Faces Wage Theft Class Action in Minnesota
------------------------------------------------------------
Torey Van Oot, writing for AXIOS Twin Cities, reports that a Twin
Cities acupuncture clinic with ties to a school whose massage
program was shuttered by the state is facing questions about some
of its practices, Axios has learned.
What's happening: A class action suit filed in April against the
American Academy of Acupuncture and Oriental Medicine (AAAOM) and
its owners alleges that they engaged in an "illegal, intentional,
and systematic scheme" to steal wages from its acupuncturists.
The federal complaint, which hasn't been previously reported,
claims the defendants didn't pay overtime or provide meal breaks,
and illegally withheld 5% of employees' wages.
Three named plaintiffs, who either currently work at the clinic or
once did, are seeking unspecified damages on behalf of all impacted
employees.
Context: Minnesota's Office of Higher Education shuttered AAAOM's
Chinese-language massage program and ordered the former owner,
Changzhen Gong -- who is still an owner of the acupuncture clinic
-- to relinquish control of the school in 2020.
The regulatory agency cited a number of administrative issues,
including incomplete or inconsistent student records and a "failure
to evaluate and approve" internship sites and supervisors.
The school has since reopened without its former massage program
under new ownership as the American Academy of Health and Wellness.
The change of ownership transition was finalized in April 2021,
according to the state Office of Higher Education.
What they're saying: The defendants denied the allegations in a
legal filing.
Gong disputed the allegations via correspondence and told Axios
that the plaintiffs have not produced evidence of their claims and
are being paid at an agreed-upon rate.
Zoom out: AAAOM was featured in a recent report from the nonprofit
Seldin/Haring-Smith Foundation that raises concerns about sex
trafficking in state-authorized schools across the nation. The
researchers behind the case study pointed out failures in oversight
and enforcement related to the issue.
The report, highlighted in a USA Today investigation, has caught
the eye of federal regulators and lawmakers.
The U.S. Department of Education sent a letter in August to the
accrediting agency that renewed AAAOM's certification in 2018,
seeking more information about that vetting process and approval of
the change in ownership.
The U.S. House Oversight and Reform Committee is also calling for
more action to address sex trafficking in trade schools.
Of note: A former school official told the 19th News that the
program may have been "unfairly targeted."
Gong told Axios he is "currently exploring avenues . . . [for]
obtaining a retraction" of the state Office of Higher Education's
allegations. [GN]
AMERICU CREDIT: Faces Fairchild-Cathey Suit Over Overdraft Fees
---------------------------------------------------------------
MALINDA FAIRCHILD-CATHEY, individually and on behalf of all others
similarly situated, Plaintiff v. AMERICU CREDIT UNION, Defendant,
Case No. 6:21-cv-01173-DNH-ML (N.D.N.Y., Oct. 27, 2021) is an
action arising from the Defendant's routine practices of assessing
more than one insufficient funds fee ("NSF Fee") on the same
transaction, and assessing an overdraft fee ("OD Fee") on
transactions that did not actually overdraw checking accounts.
AMERICU CREDIT UNION operates as a financial cooperative. The Union
provides financial solutions such as loans, investment, savings,
credit and debit cards. [BN]
The Plaintiff is represented by:
Jeffrey D. Kaliel, Esq.
KALIELGOLD PLLC
1100 15th Street NW, 4th Floor
Washington, D.C. 20005
Telephone: (202) 350-4783
Email: jkaliel@kalielpllc.com
-and-
Sophia G. Gold, Esq.
KALIELGOLD PLLC
950 Gilman Street, Suite 200
Berkeley, CA 94710
Telephone: (202) 350-4783
Email: sgold@kalielgold.com
AMYRIS INC: Filed Opposition to Plaintiffs' Class Certification Bid
-------------------------------------------------------------------
Amyris, Inc. said in its Form 10-Q Report filed with the Securities
and Exchange Commission on November 8, 2021, for the quarterly
period ended September 30, 2021, that plaintiffs in a securities
class action filed a motion seeking class certification. The
Company filed its opposition to the class certification bid on
Sept. 24.
On April 3, 2019, a securities class action complaint was filed
against Amyris and the Company's Chief Executive Officer ("CEO"),
John G. Melo, and former Chief Financial Officer ("CFO"), Kathleen
Valiasek, in the U.S. District Court for the Northern District of
California.
The complaint seeks unspecified damages on behalf of a purported
class that would comprise all persons and entities that purchased
or otherwise acquired the Company's securities between March 15,
2018 and March 19, 2019.
The complaint, which was amended by the lead plaintiff on September
13, 2019, alleges securities law violations based on statements and
omissions made by the Company during such period.
On October 25, 2019, the defendants filed a motion to dismiss the
securities class action complaint, which was denied by the court on
October 5, 2020.
The Company filed its answer to the securities class action
complaint on October 26, 2020.
In early 2021, the parties attended court-ordered mediation, but as
the case did not settle, the parties commenced discovery.
On July 30, 2021, plaintiffs filed a motion seeking class
certification and the Company filed its opposition on September 24,
2021.
Amyris, Inc. provides various alternatives to a range of
petroleum-sourced products worldwide. The company uses its
industrial bioscience technology to design microbes primarily
yeast, as well as to convert plant-sourced sugars into renewable
ingredients. The company is based in Emeryville, California.
ANZ BANK: Borrowers' Class Action Over Illegal Fees Pending
-----------------------------------------------------------
Rob Stock, writing for Stuff, reports that Westpac has signalled to
investors it might have to pay compensation to borrowers, and could
face the ire of regulators.
ANZ and ASB were taken to task by the Commerce Commission Te
Komihana Tauhokohoko over failures in their lending processes, and
faced a multi-million dollar class action lawsuit from borrowers.
In a note in its annual report, Westpac says its "New Zealand
business is reviewing its processes for some products relating to
the requirements of the New Zealand Credit Contracts and Consumer
Finance Act".
"The outcome of this complex review is uncertain and could result
in customer remediation, regulatory action and litigation," Westpac
says.
But borrowers have launched a class action claiming the amounts
handed back by the two banks fall short of what the law says they
should have paid.
ANZ and ASB had identified failures in their lending processes, and
reported them to the regulator.
Westpac earned reported a profit of just over $1 billion after tax
in the year to the end of September.
Westpac said it was always focused on identifying any risks or
potential risks.
"The review forms part of our larger Fix programme of work, which
has been ongoing for some time. As it says in the report, the
review is complex and the outcome at the moment is uncertain, so we
wouldn't comment any further," the bank said.
Banking expert Claire Matthews from Massey University said it was
not clear if Westpac's note referred to the possibility that it had
failures similar to those of ANZ and ASB.
Matthews said Westpac would have revealed the possibility of having
to pay compensation, and possibly face regulatory action and
litigation because it had a duty to do so to investors.
"They are simply taking the precaution of advising investors," she
said.
Peter King, Westpac Group chief executive, lamented repeated
failures by the bank in both its treatment of customers, and also
risk management failures which had prompted action by regulators
including New Zealand's Reserve Bank Te Putea Matua.
"These issues are not acceptable for a company of our quality and
heritage," King said, who noted three-quarters of the bank's group
executives had been hired in the past two years.
While detail is lacking in Westpac's warning to investors, ASB and
ANZ settled their failures with the Commerce Commission by
admitting they had failed to take the necessary care required of a
responsible lender.
ANZ paid customers $35.4million, while ASB paid customers $8.1m.
But, Scott Russell, the Auckland lawyer heading the class action
against the two banks, said if a bank failed to comply with its
disclosure obligations, it could not charge interest or fees on the
affected loan until the situation was resolved.
Like ANZ, Westpac was undertaking a simplification project, partly
to reduce costs, its annual report said.
ANZ chief executive Antonia Watson also said it reduced the chances
of the bank making mistakes, when the bank reported an after-tax
profit of nearly $2b.
Westpac's report showed it had reduced the amount of capital set
aside in case of losses on bad loans in New Zealand, but it had
added "additional provisions for estimated customer refunds in
2021, including customer remediation in Westpac New Zealand". [GN]
APPLE INC: Court Narrows Claims in Franklin's Amended Class Suit
----------------------------------------------------------------
In the case, ROBERT FRANKLIN, Plaintiff v. APPLE INC., Defendants,
Civil Action No. 4:21-CV-354-ALM (E.D. Tex.), Judge Amos L. Mazzant
of the U.S. District Court for the Eastern District of Texas,
Sherman Division, granted in part and denied in part Defendant
Apple's Motion to Dismiss and Motion to Abate.
Background
The lawsuit centers around injuries allegedly caused by a defective
iPhone 6. Around August 2018, Plaintiff Franklin purchased the
iPhone 6 from Wal-Mart Supercenter in Sulphur Springs, TX. On Aug.
15, 2019, Franklin's iPhone 6 suddenly exploded and caught fire,
causing him to fall to the ground As a result of the incident,
Franklin suffered injuries to his eyes and wrist. He alleges a
defective battery rendered his iPhone unsafe to operate.
On May 6, 2021, Franklin filed his Original Complaint and Petition
for Class Certification. In his complaint, Franklin asserted the
following causes of action against Defendant Apple: 1) breach of
the implied warranty of merchantability, 2) breach of express
warranty, 3) Magnuson-Moss Warranty Act claims, and 4) a Texas
Deceptive Trade Practices Act ("DTPA") claim. In response, on July
9, 2021, Apple filed a Motion to Dismiss Pursuant to Rule 12(b)(6)
and Motion to Abate. Franklin filed a response on July 23, 2021.
Also, on July 23, 2021, Franklin amended his original complaint,
filing the Plaintiff's First Amended Original Complaint and
Petition for Class Certification. Franklin's amended complaint no
longer contains a claim for breach of the express warranty, breach
of the implied warranty of merchantability, or any claim under the
Magnuson-Moss Warranty Act. Indeed, the only claim that remains
from Franklin's original complaint is his Deceptive Trade Practices
Act claim, a claim he also seeks class certification of.
Additionally, Franklin's amended complaint asserts new products
liability claims on behalf of himself, including a design defect
claim, manufacturing defect claim, failure to warn claim, and
negligence claim.
On Aug. 6, 2021, Apple filed a Motion to Dismiss the Amended
Complaint Pursuant to 12(b)(6) and 12(b)(1) and Motion to Abate. On
Aug. 20, 2021, Franklin filed his Response in Opposition to Apple's
Motion to Dismiss Amended Complaint. On Aug. 27, 2021, Apple filed
its Reply to Franklin's Response. On Sept. 3, 2021, Franklin filed
his Sur-Reply.
Analysis
Apple moves to dismiss all of Franklin's claims under 12(b)(6)
because Franklin "has failed to state any actionable claims." It
also asserts Franklin's DTPA claims should be dismissed or narrowed
for several reasons. First, Apple argues that Franklin lacks
standing with respect to "iPhone 6 series" models he did not
purchase. Second, Apple argues that Franklin's purported class
claim should be limited to class members who have experienced the
alleged defect. Finally, Apple contends that in the event
Franklin's DTPA claims are not dismissed entirely, the Court should
abate the case for sixty days because Franklin has not complied
with the pre-suit notice requirement under the DTPA.
I. Standing
In his amended complaint, Franklin brings claims under the DTPA and
seeks to represent a Texas-only class of individuals who purchased,
acquired, or own an iPhone 6 series that is equipped with the
defective iPhone 6 series battery. Thus, while Franklin admits to
only buying the iPhone 6, he seeks to represent consumers who own
not only the iPhone 6, but also consumers who own the iPhone 6
Plus, iPhone 6s, and iPhone 6s Plus. Apple argues that the Court
must dismiss Franklin's class claim with respect to "iPhone 6
series" models he did not purchase for lack of subject-matter
jurisdiction under Rule 12(b)(1). According to Apple, Franklin
lacks standing to bring claims based on products he did not buy.
Franklin counters that he has established standing and -- in any
event -- the issue of whether he can bring claims based on products
he did not purchase should be addressed at the class certification
stage.
Because the purchased model and the unpurchased models are alleged
to have the same defect and Apple's alleged wrongful conduct
applies to all of the models, Judge Mazzant finds Franklin has
pleaded substantial similarity between the products at this stage
to overcome Apple's motion to dismiss on this point. Importantly,
Franklin is not asserting standing to sue over injuries he did not
suffer. Rather, Franklin asserts that he suffered the same injuries
as a result of buying the iPhone 6 that the unnamed class members
suffered as a result of buying the other iPhone 6 models. Judge
Mazzant thus concludes that Franklin has standing to bring claims
on behalf of the proposed class.
II. Challenges to Franklin's Claims under Rule 12(b)(6)
Judge Mazzant now proceeds to examine Apple's contentions that
Franklin's claims should be dismissed under 12(b)(6). Apple
contends that Franklin's design defect, manufacturing defect,
marketing defect, negligence, and DTPA claims should be dismissed
for failure to state a claim.
A. Design Defect
Judge Mazzant finds that Apple's argument that Franklin has not
plausibly alleged a design defect is without merit. To the
contrary, Franklin's amended complaint states that the iPhone was
in a defective condition due to: i) lack of mechanism to prevent
overheating, ii) lack of audible or visual warnings or alerts, iii)
lack of a functioning mandatory shutdown, and iv) lack of proper
component parts. Viewing the facts in the light most favorable to
Franklin, it is a reasonable inference that the iPhone 6 contains a
design defect.
In finding that Franklin has not alleged sufficient facts to
support his design defect claim, Judge Franklin is cognizant of the
fact that the Fifth Circuit has recognized that products liability
law is "an area of the law where defendants are likely to
exclusively possess the information relevant to making more
detailed factual allegations," citing Flagg v. Stryker Corp., 647
Fed.App'x. 314, 318 (5th Cir. 2016). However, in Flagg, the
plaintiff at least referenced facts supporting an alternative
design—he pleaded that a different metal alloy and a different
shape and size would have reduced the risk of injury. In the
instant case, as previously stated, Franklin does not identify an
alternative design at all; he merely states in conclusory fashion
that an alternative design exists. Accordingly, Judge Mazzant finds
that Franklin has not stated a plausible design defect claim.
B. DTPA Claims
Mr. Franklin also asserts Apple violated the DTPA. To state a valid
claim under the DTPA, Franklin must show that (1) he is a consumer,
(2) that the defendant engaged in false, misleading, or deceptive
acts, and (3) that those acts were a producing cause of his
damages.
i. Misrepresentation
Mr. Franklin's misrepresentation claim is based on the so-called
"laundry list violations" contained in Section 17.46(b).
Specifically, Franklin alleges that Apple violated the DTPA by: (1)
representing that goods or services have sponsorship, approval,
characteristics, ingredients, uses, benefits or quantities that
they do not have; (2) representing that goods or services are of a
particular standard, quality or grade, if they are of another; and
(3) advertising goods or services with intent not to sell them as
advertised."
Judge Mazzant opines that Franklin has failed to satisfy Rule 9(b).
Franklin fails to identify the name of the speaker, identify when
the statement was made, and identify where it was made in all but
one his statements. Further, Franklin fails to plead how any
alleged statements made by Apple were false or misleading.
Mr. Franklin attempts to save his claim by noting that when facts
relating to fraud are "peculiarly" within the perpetrator's
knowledge, "relaxed" requirements of Rule 9(b) apply. But his
argument is unconvincing. Franklin has not shown how details
concerning public statements made by Apple are peculiarly within
Apple's knowledge. Nor has Franklin otherwise provided any
explanation as to why the information is not within his knowledge.
Further, as Franklin alleges he relied on these misrepresentations,
it is hard to see why Franklin cannot come forward with more detail
on these facts. Accordingly, Judge Mazzant finds that Franklin has
not met the pleading requirements with this claim.
ii. Failure to Disclose
Apple argues that Franklin has not alleged facts with sufficient
particularity to support his claim under the DTPA for failure to
disclose. Franklin's allegations concerning his failure to disclose
claim are the same allegations Franklin relies upon for his
misrepresentation claim.
Although this is not a problem in and of itself, Judge Mazzant
opines that the Court has already pointed out the allegations lack
the particularity required under Rule 9(b). Further, while Franklin
states Apple's representations "were materially false because they
failed to disclose the known defect," this is also insufficient.
Accordingly, again, he finds that Franklin has not satisfied the
pleading requirements for this claim.
iii. Unconscionable Acts
Mr. Franklin's final claim under the DTPA is that Apple violated
the DTPA by engaging in unconscionable actions or courses of
conduct. Apple argues that Franklin has failed to plead sufficient
factual content to meet the pleading requirements. In his response,
Franklin fails to defend the deficiencies of his claim. Putting
aside the question of whether Franklin abandoned his
unconscionability claim by failing to defend it, his claim is
nevertheless insufficient to meet the pleading requirements. His
allegations in paragraph 102 are threadbare recitals of definitions
in the DTPA.
Judge Mazzant finds that Franklin has not satisfied the pleading
requirements with this claim. He says, Franklin's allegations in
paragraph 102 are threadbare recitals of definitions in the DTPA.
Moreover, Franklin has not identified what acts of Apple were
unconscionable or otherwise made any supporting factual contentions
regarding the alleged unconscionable acts. More specifically,
Franklin has not pleaded how Apple took advantage of his lack of
knowledge, ability, experience, or capacity to a grossly unfair
degree.
iv. Statutory Standing under the DTPA for Class Members Who Have
Not Experienced the Alleged Defect
Apple's final argument under 12(b)(6) regarding the DTPA is that
Franklin's class claims are overbroad with respect to purchasers
and/or owners of the iPhone 6 series whose devices have not
manifested the purported defect. Apple argues that unmanifested
injuries are not compensable under the DTPA because individuals who
have not experienced the alleged defect have not suffered any
cognizable economic injury under Texas law.
Judge Mazzant finds that Franklin's amended complaint alone
includes thirty-four separate instances of iPhone 6 series runaway
thermal events. Further, he identifies specific representations by
Apple that allege the iPhone 6 series models have certain benefits,
but allegedly do not. Additionally, Franklin alleges the class has
suffered injuries stemming from increased time and expense in
dealing with device performance issues. Taking his allegations as
true at this early stage, his pleadings sufficiently allege how the
class has not received the benefit of their bargain. Therefore, his
class claim on behalf of class members who have not experienced the
alleged defect cannot be dismissed at this time.
C. Other Claims Challenged Under 12(b)(6)
After reviewing the current complaint, and the arguments contained
in the briefing, Judge Mazzant finds that Franklin has stated
plausible claims for manufacturing defect, marketing defect, and
negligence.
III. Leave to Amend
In his Response to Apple's Motion to Dismiss, Franklin requests
leave to file an amended complaint in the event the Court
determines Franklin has failed to state a claim. Judge Mazzant
finds it appropriate to give Franklin an opportunity to amend his
complaint to fix any deficiencies within 14 days of the Order.
IV. Motion to Abate
As previously discussed, the Court has found that Franklin has not
sufficiently pleaded his claim under the DTPA for purposes of
Apple's Rule 12(b)(6) motion. However, it has given Franklin leave
to amend. Therefore, since the Court has not dismissed Franklin's
DTPA claims with prejudice, Judge Mazzant now turns to Apple's
request for abatement. To the extent the DTPA applies, Franklin
must comply with all substantive provisions of it, including its
notice provision.
Apple contends that Franklin failed to plead that he provided
proper notice under the DTPA or that he is entitled to any
exception to the notice requirement. Franklin responds that Apple
received written notice of Franklin's claim and the incident on
Nov. 22, 2019.
Judge Mazzant finds that Franklin has failed to provide adequate
notice as required by the DTPA. Franklin has not pleaded that he
gave Apple the required notice or otherwise qualified for an
exception. That his response to Apple's motion to dismiss invoked
the exception to the notice requirement is insufficient.
Accordingly, Apple is entitled to have this action held in abeyance
until Franklin complies with the DTPA's notice requirement.
Conclusion
Judge Mazzant granted in part and denied in part Apple's Motion.
The action is abated and will remain in abatement until 60 days
after the date Franklin provides Apple with proper pre-suit notice
as required under Section 17.505(a). After the abatement period
ends, Franklin has 14 days to file a second amended complaint to
cure the defects in his complaint. After the abatement period ends,
the parties have 14 days to submit another joint proposed
scheduling order.
A full-text copy of the Court's Oct. 27, 2021 Memorandum Opinion &
Order is available at https://tinyurl.com/s5nd3yzh from
Leagle.com.
APPLE INC: Parties Agree to Continue Class Cert. Briefing Schedule
------------------------------------------------------------------
In the class action lawsuit RE APPLE IPHONE ANTITRUST LITIGATION,
Case No. 4:11-cv-06714-YGR (N.D. Cal.), the parties stipulated and
agreed to the entry of an Order continuing hearing and setting
supplemental briefing schedule as follows:
1. The Hearing presently scheduled for November 16, 2021, on
Plaintiffs' Motion for Class Certification, Apple's Motion
to Compel Plaintiffs to Submit Trial Plan, and Apple's
Daubert Motion to Exclude the Testimony of Daniel McFadden
shall be continued to December 14, 2021 at 10:00 AM PST;
2. The Hearing currently scheduled for November 16, 2021, on
Plaintiffs' Motion for Leave to File a Fourth Amended
Complaint shall proceed asnoticed;
3. Plaintiffs shall file a Supplemental Brief (not to exceed
15 pages) to conditionally address certification of the
proposed UCL claim by November 16, 2021;
4. Apple shall file a Supplemental Opposition Brief (not to
exceed 15 pages) to conditionally address certification of
the proposed UCL claim by November 30, 2021;
5. Should the Court deny Plaintiffs' Motion for Leave to File
a Fourth Amended Complaint, the supplemental briefs shall
be withdrawn.
On January 8, 2020, this Court entered an Order re: Case Scheduling
that set forth the current class certification briefing schedule.
Pursuant to this Scheduling Order, Plaintiffs' Motion for Class
Certification was filed June 1, 2021, Apple's opposition to
Plaintiffs' Motion for Class Certification was filed August 10,
2021, Plaintiffs' reply in support of their Motion for Class
Certification was filed October 19, 2021, and the class
certification hearing is scheduled for November 16, 2021 at 10:00
a.m.
Apple Inc. is an American multinational technology company that
specializes in consumer electronics, computer software and online
services.
A copy of Parties' motion dated Nov. 3, 2021 is available from
PacerMonitor.com at https://bit.ly/2YwvNRq at no extra charge.[CC]
The Plaintiff is represented by:
Rachele R. Byrd, Esq.
Betsy C. Manifold, Esq.
WOLF HALDENSTEIN ADLER
FREEMAN & HERZ LLP
750 B Street, Suite 1820
San Diego, CA 92101
Telephone: (619) 239-4599
Facsimile: (619) 234-4599
E-mail: manifold@whafh.com
byrd@whafh.com
- and -
Mark C. Rifkin, Esq.
Matthew M. Guiney, Esq.
Thomas H. Burt, Esq.
WOLF HALDENSTEIN ADLER
FREEMAN & HERZ LLP
270 Madison Avenue
New York, NY 10016
Telephone: (212) 545-4600
Facsimile: (212) 545-4677
E-mail: rifkin@whafh.com
guiney@whafh.com
burt@whafh.com
The Defendant is represented by:
Mark A. Perry, Esq.
Cynthia E. Richman, Esq.
GIBSON, DUNN & CRUTCHER LLP
1050 Connecticut Avenue, N.W.
Washington, DC 20036-5306
Telephone: 202.955.8234
Facsimile: 202.530.9691
E-mail: mperry@gibsondunn.com
crichman@gibsondunn.com
- and -
Theodore J. Boutrous Jr., Esq.
Richard J. Doren, Esq.
Daniel G. Swanson, Esq.
Jay P. Srinivasan, Esq.
Veronica S. Moye, Esq.
Ethan D. Dettmer, Esq.
Rachel S. Brass, Esq.
Caeli A. Higney, Esq.
GIBSON, DUNN & CRUTCHER LLP
333 South Grand Avenue
Los Angeles, CA 90071-3197
Telephone: (213) 229-7000
Facsimile: (213) 229-7520
E-mail: tboutrous@gibsondunn.com
rdoren@gibsondunn.com
dswanson@gibsondunn.com
jsrinivasan@gibsondunn.com
vmoye@gibsondunn.com
edettmer@gibsondunn.com
rbrass@gibsondunn.com
chigney@gibsondunn.com
ARIZONA: Faces Class Action Over Poor Prison Medical Care
---------------------------------------------------------
Beth Schwartzapfel and Jimmy Jenkins, writing for The Marshall
Project, report that in 2017, Walter Jordan wrote a memo to a
federal judge from the Arizona State Prison Complex in Florence.
"Notice of Impending Death," it said in a shaky hand. This story
was reported and published in partnership with The Arizona
Republic. Follow the Republic and azcentral on Twitter, Facebook,
or Instagram. Sign up for their morning newsletter, AZ briefing,
for news and stories from Arizona. Jordan told the judge that
Arizona corrections officials and Corizon Health, the state prison
system's private health care contractor at that time, delayed
treating his cancer for so long that he would be "lucky to be alive
for 30 days." Jordan, 67, had a common form of skin cancer that is
rarely life-threatening if caught early, but said he experienced
memory loss and intense pain from botched care. Other men in his
unit were also denied treatment, he wrote, "all falling, yelling,
screaming of pain." Jordan was dead eight days later. Reviewing his
medical records later, Dr. Todd Wilcox, a physician hired by
lawyers for the state's prisoners, agreed that Jordan's death was
likely preventable. Corizon's treatment of Jordan's "excruciating
needless pain," was "the opposite of how cancer pain should be
managed," he said. Wilcox will take the stand in a landmark trial
that begins Monday in Phoenix, the latest chapter in an almost
decade-long struggle to determine whether Arizona's prisoners are
getting the basic health care they are entitled to under the law.
The trial pits Arizona against the people held in its prisons, who
argue in a class-action lawsuit that the medical services they
receive are so poor, they constitute cruel and unusual punishment.
The state's current health care contractor, Centurion, is the
latest in a string of companies that have failed to pass muster
with the courts. None of the companies have been named as
defendants in the lawsuit, because, the claimants say, the state is
ultimately responsible for their care. The suit was originally
filed in 2012, shortly before private contractors took over
Arizona's prison medical services. But whether privatization can
provide decent care is one of the biggest issues looming over the
trial. The Arizona Department of Corrections declined to comment on
pending litigation. Centurion of Arizona and Corizon, based in
Tennessee, did not respond to multiple requests for comment.
Arizona is one of around two dozen states that use a private,
for-profit contractor to provide prison medical care, and almost
all have been sued. But a trial is rare, as most states settle to
avoid this kind of exhaustive public scrutiny. Health care in
Arizona prisons is "grossly inadequate," the prisoners have said in
court papers, with crisis-level understaffing, delayed or denied
treatments, and unreliable access to medication. Attorneys have
chronicled a man who died after his swollen legs split open, the
wounds weeping pus and swarmed by flies; a man with mental illness
who was in such distress that he chewed off parts of his fingers; a
man who entered prison with a small bump on his face that went
untreated and became a disfiguring baseball-sized tumor; and
several people denied access to regular mental health care who
later killed themselves. The trial could spell the end of
privatized care in Arizona prisons -- or, in a more extreme
outcome, the end of Arizona's control over its prison health care
entirely. U.S. District Court Judge Roslyn Silver could appoint an
outside official to run it who would answer to her, or she could
impose additional financial sanctions against the state.
Ultimately, Silver will have to decide: How much cost-cutting is
too much when lives are at stake? Although the trial will not
directly affect other state systems, experts say the outcome could
show officials across the country that courts are serious about
enforcing health standards in prison -- and that not providing
adequate care can have real consequences. The case is "a great
example of why we have it all wrong," said Homer Venters, a
correctional health care consultant who spent years as the medical
director for the New York City jail system. Instead of a judge
looking over administrators' shoulders, "the jail has to stop
operations if the conditions are inhumane or if the care is not
adequate," he said.
Few prison health care systems get high marks for quality care,
regardless of whether the government or a private company provides
services. At least 47 states have been the target of major
lawsuits. The judge in a landmark case in California -- where
health care was not privatized -- was so appalled by medical
services in prisons there that in 2006, he appointed an outside
official to take over the state's $1.2 billion prison health care
system. But bringing companies with a profit motive into the mix
poses additional problems, some experts warn, especially in a
setting where patients have so little control over their care.
"They've got every incentive to delay treatment or provide more
minimal treatment, or to count something as treatment when it's not
really treatment," said Michele Deitch, a University of Texas
senior lecturer who studies prison conditions. "It would be so much
cheaper to just do the things than spend the money on fighting it."
Until the 1970s, every state provided medical care in its own
prisons. But these services were "inadequately available and
frequently primitive," said Douglas McDonald, a researcher at
health consulting firm Abt Associates. There were few doctors on
staff, and scant health care standards. Prisoners without medical
training were known to pull teeth, dispense medications and perform
minor surgery on each other, according to one case in Alabama. Then
in 1976, the Supreme Court found that "deliberate indifference by
prison personnel to a prisoner's serious illness or injury" was
cruel and unusual punishment, forbidden by the Eighth Amendment. A
series of cases in the decades that followed clarified that people
in prison are entitled to routine and emergency medical, dental and
mental health care that is "adequate . . . at a level reasonably
commensurate with modern medical science. "These court decisions
forced prisons to hire hundreds of medical personnel and pay for
hospital stays and expensive procedures. Just as health care in
broader society began relying on "managed care" to limit costs,
some states started privatizing prison medical care, using small
contractors to provide hard-to-hire staff and negotiated rates with
hospitals, specialists and pharmacies, McDonald said. Arizona began
contracting out its prison health care in 2012, around the time
several of these small companies combined to create the major
industry players of today. The newly merged and fast-growing
companies were an attractive investment for private equity, says
Dan Mistak, acting president of Community Oriented Correctional
Health Services, a nonprofit that helps prisons and jails improve
health care. Unlike hospitals and other settings subject to
Medicare's strict quality standards, Mistak said, prison health
care is paid for almost entirely from state coffers, which
eliminates many requirements that drive up cost -- and quality --
on the outside. Medicare provides "stringent accreditation
processes and data transparency," says Monik Jiménez, an
epidemiologist at the Harvard T.H. Chan School of Public Health. In
prisons, "we don't have any of that with these private providers."
Arizona has employed three prison health care contractors over the
past decade: Pittsburgh-based Wexford Health, then Corizon, and now
Centurion. Allegations of subpar care and chronic understaffing
have dogged all three companies. The number of medical staff
decreased by 11% from 2012 to 2019, despite Arizona's prison
population remaining relatively flat, leaving prisons with hundreds
of fewer providers than they needed, according to court documents.
During its six-year tenure, Corizon paid the state more than $3
million in fines for failing to hire enough doctors and nurses.
After years of fighting in court, in which the state denied all
allegations, officials agreed to settle the case on the eve of
trial in 2014. The Arizona Department of Corrections pledged to
improve care by ensuring its health care provider met more than 100
benchmarks, including: providing adequate access to counseling and
mental health care, providing timely referrals to specialists and
following instructions of hospital doctors who release patients.
"When prison officials settle a case of this nature, it's usually
because they recognize that there is a problem, and there's some
commitment to fix it," said ACLU National Prison Project Director
David Fathi, who represents the incarcerated people suing the
state.But the problems have persisted. Two judges have separately
held the state in contempt and levied fines totaling $2.5 million
for failing to meet the quality standards it had agreed to.
In a recent whistleblower account -- the latest in a string of such
stories -- a former prison nurse alleged that the company directed
her to lie on a medical report in order to save Centurion $100,000
in court sanctions. The state has spent years contesting the
evidence, pushing back on recommendations from court-appointed
experts, and appealing court orders, losing most of them. Finally,
this year, Judge Silver rescinded the settlement agreement and set
the case for trial, writing in a scathing order that she could no
longer trust the state was making a good-faith effort to meet the
terms of the settlement.
Dustin Brislan says Arizona's failure to meet health care standards
nearly cost him his life. Brislan, 39, who is serving 17 years at
the state prison in Tucson on various charges including armed
robbery, is a named plaintiff in the lawsuit. Among other care
issues, he said, medical staff switched him from an antipsychotic
medication that helped stabilize him to an anti-anxiety drug he
told them had not worked in the past. As a result, Brislan said,
his mental health deteriorated into a yearslong cycle of self-harm:
cutting himself, then being placed in isolation for weeks or months
as a result of the cutting, which led to additional self-harm. At
one point, he almost bled to death. "They are trying to cut corners
and save money," he said, "rather than give us the medications we
need." Arizona state Rep. John Kavanagh sponsored the 2011
legislation that privatized health care in state prisons. One of
the main goals "was always to save money in tough economic times,"
he told The Arizona Republic in 2012. But cost savings have been
elusive from the start. An earlier version of the bill required
that privatization save the state money, but when no company could
do that, Kavanagh removed the requirement. The legislature pressed
ahead with privatization, and the lowest bidder, Wexford, got the
initial contract, which cost the state about $116 million a year,
about $5 million more than the state spent the previous year. Since
then, costs have increased each year and with each vendor change.
For the 15-month period that began in July, Arizona agreed to pay
more than $216 million to Centurion. That doesn't include the more
than $21 million the state has spent on attorney's fees and other
costs of litigation to defend its care in court. A similar scenario
played out in Florida, where an outside auditor said privatization
both decreased the quality of care in Florida's prisons and cost
the state more money. In 2017, the Pew Charitable Trusts published
a report that detailed how each state structured its prison health
care, and how much each state spends. Centurion's health care
contract was the most common structure. The state pays the company
a set amount per incarcerated person per day, creating what critics
say is a perverse incentive: If the company spends less, it pockets
the difference.
OPENING STATEMENT
Pew's findings underscore the question of whether privatization
actually saves states money. Data from the report showed no
meaningful difference in per-patient spending between states with
privately-run and publicly-run health care. Arizona was near the
bottom of the pack, spending $3,529 per patient per year, compared
to a national median of $5,720. Only five states spent less. Of
those, two provide their own care, two have a contractor providing
care, and one uses a mix of both. In 2019, Dr. Marc Stern, a
correctional health care expert appointed by Judge Silver to review
Arizona's prison health care system, identified tens of millions of
dollars in state spending on privatization instead of health care.
The spending ranges from the vendor's profit margin, to lawyers to
manage and oversee the contract, to duplication of services, to the
hundreds of hours that staff on both teams spend facilitating
transitions from one vendor to another." Privatization has not
served, and will continue to not serve, [Arizona Department of
Corrections] well," Stern said.Maria Schiff, a health policy
analyst and one of the authors of Pew's report, said the money a
state spends on health care is only one piece in a much larger
equation. The state's oversight of care, high and measurable
quality standards, and efficient use of resources all matter, too.
"What kind of care is a state (and more importantly, its
incarcerated individuals) getting for the money it does spend?" she
said. The upcoming trial is set to last three weeks. Eight
incarcerated people will take the stand alongside state officials
and medical experts. Among the voices who will not be heard is
Walter Jordan, who sent notice of his impending death to the court.
But his experience -- a litany of mismanagement and incompetence
that led directly to his death -- was "was sadly predictable,"
wrote Wilcox, the outside expert. According to Wilcox, as someone
who already had skin cancer in the past, Jordan should have been
provided extra-strong sunscreen, but a Corizon nurse denied it.
When Jordan developed a scalp lesion, Corizon sent him to a
dermatologist, who should have sent him immediately to an
oncologist because the lesion had grown so large. But they
didn't.The dermatologists' attempts to remove the growth on
Jordan's head "burn[ed] a hole in his skull bone," allowing the
skull to become infected and the cancer to invade his brain. A
provider wrote in Jordan's chart, "THE WOUND IS HORRIFIC." One
explanation for such poor decision-making, according to Wilcox: The
legislature had set unreasonably low caps on how much the state was
willing to pay outside specialists, a problem compounded by
millions of dollars in bills to outside hospitals and providers
that Corizon left unpaid. "The completely foreseeable result of not
paying specialists, or paying them very little, is that there is an
ever-shrinking pool of specialists willing to see prisoners, and
the quality of those willing specialists can be lower, as was the
case here," Wilcox wrote. Wilcox warned more people would have
similar experiences unless there were drastic changes. So far, the
lawsuit has outlasted lawyers, Department of Corrections directors,
the original judge, and even the original plaintiff in the case,
known as Parsons v. Ryan. Victor Parsons had a stomach infection in
prison that went undiagnosed for so long it caused permanent
damage. After his release, at the age of 42, he was shot and killed
by police in Tucson in 2019 after a standoff at his girlfriend's
apartment. In an interview conducted while still behind bars,
Parsons said he was proud to be part of the case. "Even though
people forgo their freedoms when they come to prison," he said,
"they shouldn't have to forgo their lives." [GN]
ATONOMI LLC: Extension for Summary Judgment Bid Filing Sought
-------------------------------------------------------------
In the class action lawsuit captioned as CHRIS HUNICHEN,
individually and on behalf of all others similarly situated, v.
Atonomi LLC, a Delaware LLC, CENTRI Technology, Inc., a Delaware
Corporation, Vaughan Emery, David Fragale, Rob Strickland, Kyle
Strickland, Don Deloach, Wayne Wisehart, Woody Benson, Michael
Mackey, James Salter, and Luis Paris, Case No.
2:19-cv-00615-RAJ-SKV (W.D. Wash.), the Parties ask the Court to
enter an order as follows:
-- The deadline to file motions for summary judgment to be
extended to 60 days after this Court rules on Third Party
Defendants' motion for judgment on the pleadings and
Plaintiff's motion for class certification, whichever is
later.
-- The deadline to take the depositions of the Third Party
Defendants David Patrick Peters, Sean Getzwiller, David
Cutler, Chance Kornuth, and Dennis Samuel Blieden and to
file deposition motions as to them to be extended to 60
days after this Court rules on Third Party Defendants'
motion for judgment on the pleadings, unless the Court
grants the motion.
On May 15, 2020, Atonomi filed a third-party complaint against
Third Party Defendants. After some motion practice, the Third Party
Defendants answered the third-party complaint on October 27, 2020.
On December 7, 2020, the Third Party Defendants filed a motion for
judgment on the pleadings.
On June 25, 2021, the Magistrate Judge filed a Report and
Recommendation recommending dismissal of the Third Party
Defendants. Atonomi objected to the Report and Recommendation, and
the Third Party Defendants responded to Atonomi's objections. The
District Court has not yet ruled on Third Party Defendants' motion
for judgment on the pleadings.
On May 7, 2021, Plaintiff filed a motion for class certification.
On May 25, 2021, Atonomi opposed Plaintiff's motion, and Plaintiff
replied on July 2, 2021. The District Court has not yet ruled on
Plaintiff's motion for class certification.
Atonomi provides IoT developers and manufacturers with an embedded
solution to secure devices with blockchain-based immutable identity
and reputation tracking.
A copy of the Parties' motion dated Nov. 1, 2021 is available from
PacerMonitor.com at no extra charge.[CC]
The Attorneys for the Plaintiff Chris Hunichen and Third Party
Defendants David Patrick Peters, Getzwiller, David Cutler, Chance
Kornuth, and Dennis Samuel Blieden, are:
Angus F. Ni, Esq.
AFN LAW PLLC
506 Second Ave., Suite 1400
Seattle, WA 98104
Telephone: (773) 543-3223
The Attorneys for the Defendant and Counter- and Cross-Claimant
Atonomi LLC, are:
David W. Silke, Esq.
Miles Scully, Esq.
William Rathbone, Esq.
Joseph Goodman, Esq.
Yuo-Fong Chang Amato, Esq.
Oana Constantin, Esq.
GORDON REES SCULLY MANSUKHANI LLP
701 Fifth Avenue, Suite 2100
Seattle, WA 98104
Telephone: (206) 695-5100
Facsimile: (206) 689-2822
E-mail: dsilke@grsm.com
mscully@grsm.com
wrathbone@grsm.com
jgoodman@grsm.com
bamato@grsm.com
oconstantin@grsm.com
AUSTIN POWDER: Fails to Pay Proper Wages, Carr Suit Alleges
-----------------------------------------------------------
CYRUS CARR, III, individually and on behalf of all others similarly
situated, Plaintiff v. AUSTIN POWDER COMPANY, Defendant, Case No.
2:21-cv-05140-EAS-KAJ (S.D. Ohio, Oct. 27, 2021) seeks to recover
from the Defendants unpaid wages and overtime compensation,
interest, liquidated damages, attorneys' fees, and costs under the
Fair Labor Standards Act.
Plaintiff Carr was employed by the Defendant as mixing plant
associate.
AUSTIN POWDER COMPANY manufactures industrial explosives and
accessories. The Company provides seismic exploration, quarrying,
mining, and construction services. [BN]
Plaintiff is represented by:
Daniel I. Bryant, Esq.
BRYANT LEGAL, LLC
1550 Old Henderson Road Suite 126
Columbus, OH 43220
Telephone: (614) 704-0546
Facsimile: (614) 573-9826
Email: dbryant@bryantlegalllc.com
-and-
Matthew J.P. Coffman, Esq.
COFFMAN LEGAL, LLC
1550 Old Henderson Road Suite 126
Columbus, OH 43220
Telephone: (614) 949-1181
Facsimile: (614) 386-9964
Email: mcoffman@mcoffmanlegal.com
AVANTUS LLC: Class Certification Deadlines Extended in Martinez
---------------------------------------------------------------
In the class action lawsuit captioned as Martinez v. Avantus, LLC,
Case No. 3:20-cv-01772 (D. Conn.), the Hon. Judge Janet C. Hall
entered an order granting in part Marvel Martinez's request to
extend class certification deadlines as follows:
-- All deadlines are extended except July 1, 2022
the reply to motion for class
certification which is extended to:
-- Damages Analyses Served: Feb. 18, 2022
-- Close of Fact Discovery Feb. 18, 2022
-- Disclosure of Affirmative Expert March 4, 2022
Reports
-- Disclosure of Rebuttal Expert April 1, 2022
Reports
-- Deadline to Complete Expert Discovery May 6, 2022
-- Motions to Preclude Experts May 20, 2022
-- Plaintiffs Motion for Class May 20, 2022
Certification
-- Opposition to Class Certification June 17, 2022
-- Reply in support of Motion for Class July 1, 2022
Certification
Avantus specializes in providing customized mortgage credit
reports, mortgage related services and technology solutions to the
nation's financial community.
The suit alleges violation of Fair Credit Reporting Practices
Act.[CC]
BAILEY SEAFOOD: Fails to Pay Proper Wages, Perez Suit Alleges
-------------------------------------------------------------
RICHARD PEREZ, individually and on behalf of all others similarly
situated, Plaintiff v. BAILEY SEAFOOD MARKET & RESTAURANT CORP.
(D/B/A BAILEY SEAFOOD KUCHIFRITO RESTAURANT); IRENE JIMENEZ; and
CHRISTIAN JIMENEZ, Defendants, Case No. 1:21-cv-08810 (S.D.N.Y.,
Oct. 28, 2021) seeks to recover from the Defendants unpaid wages
and overtime compensation, interest, liquidated damages, attorneys'
fees, and costs under the Fair Labor Standards Act.
Plaintiff Perez was employed by the Defendants as cook.
BAILEY SEAFOOD MARKET & RESTAURANT CORP. owns and operates a
seafood restaurant, located at Bronx, NY, under the name "Bailey
Seafood Kuchifrito Restaurant". [BN]
The Plaintiff is represented by:
Michael Faillace, Esq.
MICHAEL FAILLACE & ASSOCIATES, P.C.
60 East 42nd Street, Suite 4510
New York, New York 10165
Telephone: (212) 317-1200
Facsimile: (212) 317-1620
BALTIMORE, MD: Council Approves Outside Law Firm in Class Action
----------------------------------------------------------------
Taylor Deville, writing for The Baltimore Sun, report that the
Baltimore County Council on Nov. 1 approved a $450,000 contract
with an outside law firm to defend the county against a
class-action lawsuit alleging the county violated federal and state
labor laws by not paying minimum wage and overtime to work-release
inmates.
Greenlit by a 7-0 vote, the county has hired the law firm Nelson
Mullins Riley and Scarborough to serve as co-counsel on the federal
case brought by an Essex man incarcerated at the Baltimore County
Detention Center who participated in the detention center's
work-release program at the Cockeysville recycling center, operated
by the county's Department of Public Works.
Michael A. Scott, the plaintiff in the case, says he and others in
the county detention center's work-release program were paid a flat
rate of $20 a day to work at the recycling center and were not
granted overtime although the lawsuit asserts they often worked
more than 57 hours a week.
The lawsuit alleges violations of the federal Fair Labor Standards
Act, and Maryland wage and hour laws.
Maryland's minimum wage is $11.75 per hour.
"These types of arrangements come with a cost," said Scott's
attorney Howard Hoffman, adding that Scott missed payments to his
landlord. "What happens to the children that are left behind? What
happens to the car payments?"
The practice "creates a loop of poverty," he said.
Courts have generally held that inmates are not considered
employees protected by the Fair Labor Standards Act -- but Hoffman
has said this situation is "not an example of prison labor." Scott
and others participated in the county work-release program
voluntarily, not as part of a criminal sentence or rehabilitation,
he said.
A 1993 decision by the U.S. Court of Appeals 4th Circuit opined
that inmates are not protected under federal labor laws.
The opinion stems from a lawsuit filed by a former inmate at the
Maryland Correctional Institution at Jessup asserting he was
entitled to minimum wage compensation because of his participation
in a work program at a graphic print shop run by State Use
Industries of Maryland.
The court wrote that inmates performed work for State Use
Industries "not to turn profits for their supposed employer, but
rather as a means of rehabilitation and job training."
Baltimore Sun reporter Alison Knezevich contributed to this
article. [GN]
BAM! PIZZA: Fails to Pay Proper Wages, Armstrong Suit Alleges
-------------------------------------------------------------
BRIAN ARMSTRONG; JAVIER ALVAREZ; and LUKE GRUSZKA, individually and
on behalf of all others similarly situated, Plaintiff v. BAM! PIZZA
MANAGEMENT, INC.; BRIAN BAILEY; C.S.P.H., INC.; JOSEPH ROMANO;
RICHARD HAFNER; DOE CORPORATION 1-10; and JOHN DOE 1-10, Defendant,
Case No. 3:21-cv-02677 (N.D. Tex., October 28, 2021) is brought
over alleged violations of the Fair Labor Standards Act.
Plaintiff Armstrong was employed by the Defendant as delivery
driver.
BAM! PIZZA MANAGEMENT, INC. owns Domino's stores located in Texas,
New Mexico, and Colorado. [BN]
The Plaintiff is represented by:
Jay D. Ellwanger, Esq.
David W. Henderson, Esq.
ELLWANGER LAW LLLP
400 S Zang Blvd, Suite 600
Dallas, Texas 75208
Telephone: (469) 998-6775
Facsimile: (469) 998-6775
Email: jellwanger@equalrights.law
dhenderson@equalrights.law
-and-
Andrew R. Biller, Esq.
Andrew P. Kimble, Esq.
Philip J. Krzeski, Esq.
BILLER & KIMBLE, LLC
8044 Montgomery Rd., Ste. 515
Cincinnati, OH 45236
Telephone: (513) 715-8711
Facsimile: (614) 340-4620
Email: abiller@billerkimble.com
akimble@billerkimble.com
pkrzeski@billerkimble.com
BEANFIELDS INC: Contreras Files ADA Suit in S.D. New York
---------------------------------------------------------
A class action lawsuit has been filed against Beanfields, Inc. The
case is styled as Yensy Contreras, individually and on behalf of
all others similarly situated v. Beanfields, Inc., Case No.
1:21-cv-09267 (S.D.N.Y., Nov. 9, 2021).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Beanfields -- https://www.beanfields.com/ -- is a food company that
makes delicious chips with seven temping flavors.[BN]
The Plaintiff is represented by:
Jarrett Scott Charo, Esq.
MIZRAHI KROUB LLP
200 Vesey Street, Ste. 24th Floor
New York, NY 10281
Phone: (212) 595-6200
Email: jcharo@mizrahikroub.com
BLACKBERRY LIMITED: Class Action Pending in New York
----------------------------------------------------
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
MARVIN PEARLSTEIN, Individually And
On Behalf of All Others Similarly Situated,
Plaintiff,
vs.
BLACKBERRY LIMITED (formerly known
as RESEARCH IN MOTION LIMITED),
THORSTEN HEINS, BRIAN BIDULKA,
and STEVE ZIPPERSTEIN,
Defendants.
CASE NO. 1:13-CV-7060-CM-KHP
SUMMARY NOTICE OF PENDENCY OF CLASS ACTION
TO: All those who purchased or otherwise acquired the common stock
of BlackBerry Limited ("BlackBerry") on the NASDAQ (ticker "BBRY")
during a Class Period from March 28, 2013, through and including
September 20, 2013 (the "Class").
Excluded from the Class are all persons and entities who purchased
or otherwise acquired BlackBerry common stock during the Class
Period, but only between March 28, 2013 and April 10, 2013 and who
sold all of their BlackBerry common stock prior to April 11, 2013,
as well as the Defendants, officers and directors of BlackBerry,
members of their immediate families and their legal
representatives, heirs, successors, or assigns, and any entity in
which Defendants have or had a controlling interest.
PLEASE READ THIS NOTICE CAREFULLY AND IN ITS ENTIRETY.
YOUR RIGHTS MAY BE AFFECTED BY PROCEEDINGS IN THIS ACTION.
This Notice is being sent pursuant to Rule 23 of the Federal Rules
of Civil Procedure and an Order of the United States District Court
for the Southern District of New York (the "Court"), entered
January 26, 2021, certifying the above-captioned Action as a class
action. This Action has not been settled and continues to be
litigated. Accordingly, no claim form need be filed at this time.
If you are a Class Member your rights are affected by this action
and you may have the right to participate in any recovery. You also
have the right to exclude yourself from the Class in accordance
with the directions set forth in a more detailed Notice of Pendency
of Class Action. That Notice of Pendency of Class Action describes
in more detail this Class Action and your rights with respect
thereto.
If you have not received a more detailed Notice by mail, please
contact:
BlackBerry US Securities Litigation
c/o JND Legal Administration
P.O. Box. 91399
Seattle, WA 98111
www.BlackBerryUSSecuritiesLitigation.com
Inquiries other than requests for the Notice may be made to Class
Counsel:
Lewis S. Kahn, Esq.
Kahn Swick & Foti, LLC
1100 Poydras Avenue, Suite 3200
New Orleans, Louisiana 70163
Telephone: (504) 455-1400
Fax: (504) 455-1498
PLEASE DO NOT CALL OR WRITE THE COURT OR THE OFFICE OF THE CLERK
FOR INFORMATION OR ADVICE.
BY ORDER OF THE COURT
United States District Court
Southern District of New York [GN]
BLACKROCK INSTITUTIONAL: Settlement in Baird Suit Gets Final Nod
----------------------------------------------------------------
In the class action lawsuit captioned as CHARLES BAIRD, et al., v.
BLACKROCK INSTITUTIONAL TRUST COMPANY, N.A., et al., Case No. e
4:17-cv-01892-HSG (N.D. Cal.), the Hon. Judge Haywood S. Gilliam,
Jr. entered an order:
1. granting the motion for final approval of class action
settlement; and
2. granting in part and denying in part the motion for
attorneys' fees, costs, and incentive awards:
-- The Court approves the settlement amount of $9,650,000;
an award of attorneys' fees in the amount of
$2,798,500.00 to Class Counsel; a reimbursement of
$641,557.58 in litigation expenses advanced by Class
Counsel; and service awards in the amount of $10,000 to
each of the Named Plaintiffs as Class Representatives.
-- The parties and settlement administrator are directed
to implement this Final Order and the settlement
agreement in accordance with the terms of the
settlement agreement. The parties are further directed
to file a short stipulated final judgment of two pages
or less within 14 days from the date of this order. The
judgment need not, and should not, repeat the analysis
in this Order.
The Plaintiff Baird filed his original complaint on April 5, 2017,
challenging Defendants' Procedural Background management of the
BlackRock Retirement Savings Plan.
The Plaintiffs and Defendants engaged in several rounds of motions
to dismiss and amendment, concluding in the Court's order granting
in part and denying in part Defendants' motion to dismiss the
second amended complaint. The parties then engaged in extensive
discovery regarding the claims and defenses in this case, including
a substantial number of discovery disputes that required joint
letter briefing before Magistrate Judge Westmore.
The Plaintiffs then moved to certify two classes. One class, the
BlackRock Plan Class, consisted of only current and former
participants in the BlackRock Plan. The other class, the putative
CTI Class, consisted of participants in numerous retirement plans
whose retirement savings were invested in certain BlackRock
collective trust investment vehicles that engaged in securities
lending.
On February 11, 2020, the Court certified the BlackRock Plan Class
but denied Plaintiffs' motion to certify the CTI Class. Dkt. No.
360. Plaintiffs sought but were denied a Rule 23(f) appeal of the
Court's denial of certification of the CTI Class.
BlackRock operates as an investment management company.
A copy of the Court's order dated Nov. 3, 2021 is available from
PacerMonitor.com at https://bit.ly/3oeLqpA at no extra charge.[CC]
BMW OF NORTH AMERICA: Baker Loses Bid to Strike Expert's Testimony
------------------------------------------------------------------
Judge Jay C. Zainey of the U.S. District Court for the Eastern
District of Louisiana denies the Plaintiff's motion to strike and
exclude the testimony and report of the Defendant's expert in the
lawsuit captioned as RICHARD BAKER v. BMW OF NORTH AMERICA, LLC,
SECTION: "A" (1), Case No. 20-274 (E.D. La.).
The Plaintiff, Richard Baker, has sued BMW for a manufacturing
defect in the N63 engine in the pre-owned 2009 BMW 750i that he
purchased in 2013 for $58,790.88. Baker believes that the engine is
defective because it consumes an excessive amount of oil at an
extremely rapid rate requiring him to add BMW-approved engine oil
well before the recommended oil change intervals. Baker concedes
that he noticed the problem not long after he purchased the vehicle
but he alleges that a technician with a local authorized BMW dealer
assured him that such oil consumption was normal and BMW
persistently refused to acknowledge the defect. Baker alleges that
the problem continued to worsen requiring him to add two quarts of
oil for every 200 miles of use in order to prevent catastrophic
engine damage or failure.
According to Baker, it has become widely known throughout the
automotive industry that the N63 may be defective due to the oil
consumption problem. Baker contends that BMW knew as far back as
2008 about the N63's oil consumption problem. Baker believes that
BMW fraudulently concealed the presence of the defect.
Mr. Baker contends that the oil consumption defect substantially
impairs the use, value, and safety of the vehicle, and that he
either would not have purchased the vehicle or would have paid
significantly less for it had he known about the problems with the
N63 prior to the purchase. As for damages, Baker claims that it
would cost about $15,000 dollars to repair the problem (assuming
that replacing the engine would be required to repair the problem),
and he claims that he has incurred out of pocket expenses
associated with the engine oil consumption problem. Baker contends
that he has been deprived of his original bargain in purchasing the
vehicle because the engine could fail at any time, and the problem
discourages him from traveling long distances in his vehicle. Baker
fears that he will suffer a significant loss when he sells the
vehicle because the reputation of the vehicle has been impaired by
now-public research establishing that the N63 engine suffers from
an oil consumption defect.
On Aug. 10, 2018, Baker opted out of a nationwide class action
settlement reached in Bang v. BMW of North America, LLC (No.
15-6945, District of New Jersey), and joined with several other
opt-out plaintiffs to file an action in the District of New Jersey
on Dec. 3, 2018. Baker's claims in that lawsuit, none of which were
based on Louisiana law, were dismissed without prejudice so that
Baker and the other individual opt-out plaintiffs could file
separate actions in their respective states (Sarwar v. BMW of N.
Am., LLC, No. 18-16750, 2019 WL 7499157 (D. N.J.) (Nov. 27, 2019)).
The presiding judge ordered that the statute of limitations for any
claim asserted in that case was deemed tolled during the pendency
of the action and for a period of 30 days from the date of the
order (11/27/19).
Mr. Baker filed this individual suit on Jan. 27, 2020, asserting
several claims related to the N63 engine. The claims are based on
the MMWA (Magnuson-Moss Warranty Act), 15 U.S.C. Section 2301, et
seq., and Louisiana law.
BMW has always taken the position that Baker's claims in this civil
action are prescribed. In July 2020, the Court rejected BMW's
argument that all of Baker's claims are prescribed on the face of
his complaint. The Court left open the possibility, however, that
BMW could possibly prevail on the prescription defense when moving
for summary judgment at a later time.
A jury trial has been scheduled for Jan. 24, 2022.
Mr. Baker now moves to exclude Michael Murray, BMW's expert.
Discussion
Two of the Plaintiff's grounds for excluding Murray are easily
addressed, Judge Zainey notes. The Plaintiff contends that Murray's
opinions are actually those of his colleagues and perhaps even
those of the Defendant's attorneys. And the Plaintiff complains
that Murray intends to simply read his expert report to the jury.
First of all, the Court would not allow any party to simply have
its expert read his report to the jury. The expert reports
themselves will not be provided to the jury. The experts in this
case will testify just like any other trial witness--by answering
questions asked on direct and cross examination by counsel. Second,
if Murray's opinions are not his own the Court has no doubt that
this will be apparent to the jury once the Plaintiff's counsel
cross examines Murray.
As to the contention that Murray should be excluded because his
opinions are based on his own subjective "expert knowledge" and his
own opinion as opposed to being based on objective criteria or
treatises, the Court is persuaded that the arguments presented by
the Plaintiff do not present a Daubert problem. Rather, any
deficiencies in Murray's opinions can be properly addressed through
vigorous cross examination rather than complete exclusion, Judge
Zainey explains.
As the Court explained when it denied the Defendant's motion to
exclude the testimony of the Plaintiff's expert, Mr. Darren
Manzari, the Court is persuaded that all of the deficiencies raised
by the Plaintiff can be addressed via vigorous cross examination
and that none of the challenges require wholesale exclusion of the
witness.
The motion to strike and exclude is, therefore, denied.
Accordingly, and for these reasons, it is ordered that the Motion
to Strike and Exclude the Testimony and Report of Defendant's
Expert filed by the Plaintiff, Richard Baker, is denied.
A full-text copy of the Court's Order and Reasons dated Oct. 28,
2021, is available at https://tinyurl.com/2bzsapa6 from
Leagle.com.
BOJANGLES RESTAURANTS: Court Denies Stafford's Bid to Vacate Order
------------------------------------------------------------------
District Judge Max O. Cogburn, Jr., of the U.S. District Court for
the Western District of North Carolina, Charlotte Division, denied
the Plaintiff's Motion to Vacate the Magistrate Judge's Order of
Aug. 20, 2021, in the lawsuit titled ROBERT E. STAFFORD, JR., on
behalf of himself and all others similarly situated, Plaintiff v.
BOJANGLES RESTAURANTS, INC., Defendant, Case No. 3:20-cv-266-MOC
(W.D.N.C.).
Background
On May 6, 2020, Plaintiff Stafford filed a complaint against
Bojangles in which he alleged, among other things, that Defendant
Bojangles failed to pay him as required by the Fair Labor Standards
Act ("FLSA"). Stafford later amended his complaint to assert an
FLSA claim not just on his own behalf, but on behalf of all
Bojangles' current and former shift managers. On Nov. 2, 2020, the
Court granted conditional certification of a nationwide class of
Bojangles' shift managers.
The parties are currently in discovery. On Aug. 20, 2021,
Magistrate Judge David S. Cayer entered an order granting the
parties' respective motions to compel discovery in this matter.
Specifically, Judge Cayer granted the respective motions to compel
as to (1) the Plaintiff's requests that the Defendant be compelled
to fully and completely respond to the Plaintiffs' Interrogatories
and Requests for Production of Documents and as to (2) the
Defendant's request that the opt-in Plaintiffs be ordered to
provide full, individualized responses to the Defendant's
Interrogatories Nos. 10, 11, 12, and 13 and Requests for Production
Nos. 36, 37 and 38.
The Plaintiff filed the pending motion to vacate the magistrate
judge's order on Sept. 3, 2021. He contends that the magistrate
judge's order is in error because the order requires Stafford to
respond to all 550 opt-in Plaintiffs, but that the discovery was
directed to Stafford only. He also contends that the magistrate
judge erred in ordering individual discovery from the 550 opt-in
Plaintiffs in this case because individual discovery is not proper
in a class action. The Plaintiff further contends that to respond
to four interrogatories and three document demands for 550 opt-in
Plaintiffs will take over 1,000 hours and it cannot possibly be
accomplished in the 30 days required by the Order. It will cost
hundreds of thousands of dollars.
Finally, the Plaintiff contends that the magistrate judge's order
is in error because the Defendant agreed early on that it would
propound an optional questionnaire in lieu of discovery. He argues
that the Defendant will improperly seek dismissal of any opt-in
Plaintiffs who don't respond to written discovery.
Discussion
The Court has carefully reviewed the parties' arguments and finds
that, for the reasons stated in the Defendant's brief, the
magistrate judge did not commit legal error when ruling on the
parties' respective motions to compel. Moreover, the magistrate
judge directed the opt-in Plaintiffs, not just Stafford, to respond
to the discovery requests. Thus, each opt-in Plaintiff, not
Stafford, is obligated to respond to Defendant's discovery
requests. To the extent the magistrate judge's order is not clear
in that regard, the magistrate judge's order is modified to make
clear that the opt-in Plaintiffs are required to respond to the
propounded discovery requests.
Next, to the extent the Plaintiff challenges the magistrate judge's
order compelling individualized discovery, the order was not
clearly erroneous, Judge Cogburn holds. Although the Plaintiff
cites to cases that disallowed individual class discovery, courts
have certainly allowed individualized discovery in some class
actions. Thus, Judge Cayer did not clearly err in granting the
Defendant's motion to compel individual discovery, Judge Cogburn
holds, citing Jackson v. U.S. Bancorp, No. 220CV02310, 2021 WL
809292, at *2 (D. Kan. Mar. 3, 2021).
Moreover, as the Defendant notes, the Plaintiff has sought
discovery from the Defendant on an individual basis for each opt-in
Plaintiff. What is good for the goose is good for the gander, Judge
Cogburn states, citing Martins v. Flowers Foods, Inc., No.
8:16-CV-3145, 2020 WL 5223722, at *6 (M.D. Fla. Aug. 1, 2020).
As to the Plaintiff's arguments about efficiency, undue burden, and
the time it will take to propound the discovery requests, the
opt-in Plaintiffs may certainly file a motion for extension of time
to respond to the requests, Judge Cogburn finds. As for the
Plaintiff's arguments about the Defendant using written discovery
for an improper purpose, the Plaintiff has not shown that the
Defendant intends to use individual discovery for any improper
purpose.
Finally, as the Defendant notes, nothing in the record obligates
the Defendant to propound an optional questionnaire in lieu of
discovery. The Defendant apparently changed its strategy in
response to the Plaintiff's own discovery requests. The magistrate
judge's order is not contrary to law in granting the Defendant's
motion to compel in this regard, Judge Cogburn holds.
Conclusion
For these reasons, the Plaintiff's Motion to Vacate is denied.
A full-text copy of the Court's Order dated Oct. 28, 2021, is
available at https://tinyurl.com/m7zk9pjr from Leagle.com.
BPS FINANCIAL: Salerno Law to File Class Action Over QOIN Token
---------------------------------------------------------------
Keira Wright, writing for Coin Telegraph, reports that the issuer
of a controversial cryptocurrency that can only be sold in batches
of $125 per day on a single exchange is facing pushback from an
Australian law firm.
Queensland-based law firm Salerno Law plans to file a lawsuit
accusing BPS Financial Limited -- the company behind the QOIN token
-- of engaging in misleading and deceptive conduct, pyramid selling
of financial products, and failing to comply with financial
services regulations. The lawsuit will seek $100 million in
damages.
Salerno Law, which specializes in crypto disputes, started
collecting expressions of interest from investors and merchants who
had incurred losses as a result of the seemingly arbitrary limits
placed on QOIN sellers.
QOIN tokens are issued on the company's proprietary Qoin
blockchain. As such, QOIN is not supported by decentralized
exchanges and can only be swapped using the "Block Trade Exchange"
(BTX), which prevents users from selling more than $125 worth of
the token daily. However, users are able to make QOIN purchases
between $100 and $10,000.
BTX is registered with the Australian Securities and Investments
Commission.
The BTX Exchange, BPS and Qoin are all controlled by the same two
men, Tony Wiese and Raj Pathak. Pathak and Wiese are also the joint
directors of Bartercard, which is a barter trading system that
allows businesses to exchange goods and services using a
proprietary credit system called "trade dollars."
Salerno Law said that it had spoken to several holders of QOIN who
said they have experienced significant difficulty selling or
withdrawing the token on the BTX exchange and redeeming the token
at merchants.
"It has been alleged by holders and merchants that they are either
unable to accept Qoin payments or exchange the token for fiat
currency due to the terms of BTX Exchange, leaving them with a
token of no utility." Qoin denies these claims, describing them as
"baseless" in a statement posted to its website on Oct. 28.
Public reviews provided by Qoin users also offer scathing
assessments of the project.
"Qoin is a TOTAL joke. Stay well clear of this company and its
dirty dodgy dealings," one user posted to the website Product
Review.
"0 is my rating. This is NOT and again I will repeat it, NOT an
investment. It's a closed barter system between businesses. Once
your money is in, the max you can draw out currently is $125 IF you
can," added Michelle from New South Wales.
The Salerno suit is not the first time Qoin has come under fire,
with local industry association Blockchain Australia expelling
Qoin's membership and requesting for its name and logo to be
removed from marketing promotions in February of this year amid
accusations it has been engaged in pyramid selling.
"The former Member has been asked to cease the use of the
Blockchain Australia logo and name in connection with their
business or promotional activities," Blockchain Australia wrote at
the time. [GN]
BRISTOL-MYERS SQUIBB: ClaimsFiler Reminds of December 6 Deadline
----------------------------------------------------------------
ClaimsFiler, a FREE shareholder information service, reminds
investors of pending deadlines in the following securities class
action lawsuits:
Bristol-Myers Squibb Company (BMY)
Class: Investors who received Contingent Value Rights ("CVRs")
(BMY.RT) in exchange for their shares of Celgene Corporation (CELG)
pursuant to Bristol-Myers' acquisition of Celgene on November 20,
2019
Lead Plaintiff Motion Deadline: December 6, 2021
MISLEADING PROSPECTUS
To learn more, visit https://claimsfiler.com/cases/nyse-bmy-3/
D-MARKET Electronic Services & Trading (d/b/a "Hepsiburada")
(HEPS)
Class Period: purchase of shares issued either in or after the July
2021 Initial Public Offering
Lead Plaintiff Motion Deadline: December 20, 2021
MISLEADING PROSPECTUS
To learn more, visit https://claimsfiler.com/cases/nasdaq-heps
Höegh LNG Partners LP (HMLP)
Class Period: 8/22/2019 - 7/27/2021
Lead Plaintiff Motion Deadline: December 27, 2021
SECURITIES FRAUD
To learn more, visit https://claimsfiler.com/cases/nyse-hmlp
If you purchased shares of the above companies and would like to
discuss your legal rights and your right to recover for your
economic loss, you may, without obligation or cost to you, contact
us toll-free (844) 367-9658 or visit the case links above.
If you wish to serve as a Lead Plaintiff in the class action, you
must petition the Court on or before the Lead Plaintiff Motion
deadline.
About ClaimsFiler
ClaimsFiler has a single mission: to serve as the information
source to help retail investors recover their share of billions of
dollars from securities class action settlements. At
ClaimsFiler.com, investors can: (1) register for free to gain
access to information and settlement websites for various
securities class action cases so they can timely submit their own
claims; (2) upload their portfolio transactional data to be
notified about relevant securities cases in which they may have a
financial interest; and (3) submit inquiries to the Kahn Swick &
Foti, LLC law firm for free case evaluations.
To learn more about ClaimsFiler, visit www.claimsfiler.com [GN]
BRISTOL-MYERS SQUIBB: Schall Law Firm Reminds of Dec. 6 Deadline
----------------------------------------------------------------
The Schall Law Firm, a national shareholder rights litigation firm,
on Nov. 1 announced the filing of a class action lawsuit against
Bristol-Myers Squibb Company ("Bristol-Myers" or "the Company")
(NYSE: BMY) on behalf of former shareholders of Celgene Corporation
("Celgene") (Nasdaq: CELG) who received Contingent Value Rights
("CVRs") (NYSE: BMY.RT) for violations of the federal securities
laws.
Investors who received CVRs in exchange for their shares pursuant
to Bristol-Myers's $74 billion acquisition of Celgene on November
20, 2019 ("Merger") are encouraged to contact the firm before
December 6, 2021.
We also encourage you to contact Brian Schall of the Schall Law
Firm, 2049 Century Park East, Suite 2460, Los Angeles, CA 90067, at
310-301-3335, to discuss your rights free of charge. You can also
reach us through the firm's website at www.schallfirm.com, or by
email at brian@schallfirm.com.
The class, in this case, has not yet been certified, and until
certification occurs, you are not represented by an attorney. If
you choose to take no action, you can remain an absent class
member.
According to the Complaint, the Company made false and misleading
statements to the market. The Joint Proxy filed with the SEC in
connection with the merger stated that Celgene shareholders would
receive CVRs exchangeable for $9.00 per share once "milestones"
were achieved. Bristol-Myers took steps to avoid paying CVR
shareholders including making defective filings to the FDA to delay
the eventual approval of Liso-cel, resulting in a missed milestone
payment. Based on these facts, the Company's public statements were
false and materially misleading throughout the merger period. When
the market learned the truth about Bristol-Myers, former Celgene
shareholders suffered losses.
Join the case to recover your losses.
The Schall Law Firm represents investors around the world and
specializes in securities class action lawsuits and shareholder
rights litigation.
This press release may be considered Attorney Advertising in some
jurisdictions under the applicable law and rules of ethics.
CONTACT:
The Schall Law Firm
Brian Schall, Esq.,
www.schallfirm.com
Office: 310-301-3335
info@schallfirm.com [GN]
BROWN UNIVERSITY: 1st Cir. Affirms Approval of Cohen's Settlement
-----------------------------------------------------------------
In the case, AMY COHEN ET AL., individually and on behalf of all
others similarly situated, Plaintiffs, Appellees v. BROWN
UNIVERSITY ET AL., Defendants, Appellees, ABIGAIL WALSH; LAUREN
LAZARO; ROSE DOMONOSKE; MEI LI COSTA; ELLA POLEY; ALYSSA GARDNER;
LAUREN MCKEOWN; ALLISON LOWE; TINA PAOLILLO; EVA DURANDEAU;
MADELINE STOCKFISH; SONJA BJORNSON, Objectors, Appellants, Case No.
21-1032 (1st Cir.), the U.S. Court of Appeals for the First Circuit
affirmed the district court's approval of the Amended Settlement
Agreement.
Background
In 1991, Brown downgraded four athletic teams -- women's volleyball
and gymnastics, men's golf, and water polo -- from full varsity
status to intercollegiate club status. The next year, several
members of the women's volleyball and gymnastics teams sued Brown
under Title IX and its implementing regulations, charging that —
with respect to its athletic programs -- Brown did not "effectively
accommodate the interests and abilities of members of both sexes."
The district court certified a class of "all present and future
Brown University women students and potential students who
participate, seek to participate, and/or are deterred from
participating in intercollegiate athletics funded by Brown." The
designated class representatives were women student-athletes
then-enrolled at Brown. Those representatives -- all of whom have
long since graduated -- remain the class representatives today,
save for two who dropped out along the way. So, too, the original
class counsel remains aboard.
In late 1992, the district court issued a preliminary injunction in
favor of the Plaintiffs. Forced to "invade terra incognita" at an
untrammeled "crossroads of the law," the First Circuit affirmed.
The district court subsequently held a trial on the merits. In the
midst of trial, the parties reached a partial settlement regarding
the disparate-funding portion of the Plaintiffs' claims, and the
district court approved that settlement. What remained were the
claims of disparate participation opportunities. At the end of the
trial, the district court ruled that Brown had violated Title IX in
that respect and ordered it to submit a compliance plan.
Brown proposed to cut some men's varsity teams as a means of
leveling the playing field between the sexes, but the district
court rejected this proposal and instead ordered Brown to elevate
and maintain specific women's teams. A divided panel of the First
Circuit affirmed the district court's ruling that Brown was in
violation of Title IX. The panel majority also agreed with the
district court that Brown's proposal was not "a good faith effort."
They nonetheless concluded "that Brown's proposal to cut men's
teams was a permissible means of effectuating compliance with the
statute" and, thus, "the district court was wrong to reject
out-of-hand Brown's plan." It remanded to give Brown another chance
to come up with an acceptable compliance plan.
In June of 1998, the parties reached a comprehensive settlement,
dubbed the Joint Agreement, which the district court approved. In
major part, that agreement locked in a proportional representation
scheme: The percentage of each gender's athletes at Brown must lie
within 3.5% or 2.25% (depending on the circumstances) of each
gender's respective undergraduate campus presence. The Joint
Agreement required Brown to submit a compliance report annually to
class counsel. It also created a mechanism for the parties to
exchange objections and replies concerning Brown's compliance or
the lack thereof.
By its terms, the Joint Agreement was "indefinite in duration" and
provided that the district court would "retain jurisdiction
concerning interpretation, enforcement and compliance" with its
stipulations.
For 22 years, Brown's athletes played on the turf of this Joint
Agreement. Brown dutifully submitted its annual report each August.
On the few occasions when issues surfaced, the parties resolved
them without judicial intervention.
In May of 2020, a new era dawned. Christina Paxson, who had become
Brown's president well after the fact and who was a defendant in
the case by virtue of her office, announced the "Excellence in
Brown Athletics Initiative." With a view toward making Brown's
programs more competitive overall, the Initiative purposed to
downgrade five women's teams and six men's teams from varsity
status to club status, while elevating the women's sailing and
co-ed sailing teams to varsity status. The planned hit to the men's
track, field, and cross country teams, in particular, provoked a
fierce backlash.
In a June 6 public statement, President Paxson contended that
simply restoring men's track, field, and cross country would place
Brown in violation of the Joint Agreement. Nevertheless, Brown
bowed to the pressure three days later: President Paxson announced
that Brown would not downgrade the men's track, field, and cross
country teams. It would achieve compliance with the Joint Agreement
"for the time being" by making other (unspecified) programmatic
"modifications."
The class representatives were not inclined to acquiesce. Through
the class counsel, they asserted that Brown was violating the Joint
Agreement and moved for enforcement of the decades-old judgment and
for emergency relief. Expedited litigation ensued. Each side
engaged in document discovery, exchanged expert reports, deposed
witnesses, and filed briefs.
In September of 2020, the parties entered into mediation under the
auspices of a magistrate judge -- a process that the class counsel
later described as "intense shuttle diplomacy, spanning nearly two
dozen conferences." The mediation resulted in a negotiated
settlement. The Amended Settlement Agreement, styled as a
modification of the Joint Agreement, expires by its terms on Aug.
31, 2024. Until then, Brown must restore two women's teams to
varsity status and may not downgrade any women's varsity team. And
should Brown elect to make a permitted upgrade of any men's team to
varsity status, it must restore an equal number of women's teams
plus two to varsity status.s
The parties asked the district court to approve the Amended
Settlement Agreement, and notice was provided to the members of the
class. Twelve members of Brown's varsity women's gymnastics and
hockey teams objected to the proposed settlement. They argued, as
relevant here, that the named class representatives were inadequate
representatives of the class and that the proposed settlement was
not "fair, reasonable, and adequate," as required by Federal Rule
of Civil Procedure 23(e)(2). The district court held a fairness
hearing by videoconference on December 15 and approved the Amended
Settlement Agreement. The court singled out for praise the
"masterful" work of the magistrate judge and the diligence of both
President Paxson and class counsel. In rejecting the Objectors'
contentions, the court pointed out that "the number of objectors
represents a very small fraction of the class members as a whole,"
and this fact "is in and of itself representative of the
settlement's reasonableness." This timely appeal followed.
Analysis
In this venue, the Objectors advance two principal claims of error.
First, they assert that the designated class representatives "did
not, and could not," adequately represent the class as a whole.
Second, they assert that the district court abused its discretion
in determining that the Amended Settlement Agreement was fair,
reasonable, and adequate. As class members, the Objectors have
standing to pursue these claims of error.
The First Circuit reviews the district court's determination for
abuse of that discretion -- a multifaceted standard under which it
scrutinizes embedded legal issues de novo and factual findings for
clear error. With this backdrop in place, it turns to the specifics
of the Objectors' appeal.
A. Threshold Issues
At the outset, the First Circuit must iron out two procedural
wrinkles. Both wrinkles relate to class counsel's entreaty that we
decline to entertain the Objectors' plaints as to adequacy of
representation. The class counsel first submits that this issue was
not squarely presented below and, thus, was not preserved for
appeal. Second, the class counsel submits that the First Circuit is
precluded from revisiting the adequacy of class representation
where, as in the case, no motion for either decertification or
modification of the class was made.
The First Circuit cannot fault the Objectors for challenging the
settlement on a ground expressly contemplated by Rule 23 and then
timely appealing the district court's rejection of that challenge.
It holds, therefore, that the Objectors were not obliged to channel
their class-representation grievances into a motion for
decertification or modification of the class.
B. Adequacy of Representation
Having smoothed out the procedural wrinkles, the First Circuit
presses on to the gravamen of the Objectors' claim of error. The
Objectors first contend that the named class representatives no
longer adequately represent the class. The heart of the Objectors'
argument: That the named representatives could not and did not
adequately represent the class of current and future students
because the named representatives -- who were members of the class
when they were appointed -- graduated from Brown in the distant
past. In the Objectors' view, the "class representatives are no
longer members of the class" and "don't have skin in the game."
Therefore, the Objectors insist, the class representatives'
interests are not "aligned" with those of the class.
Among other things, the First Circuit finds that the determination
as to their adequacy remains fact-specific and context-specific. It
says, there is every reason to believe that the named class
representatives are competent champions of the class's cause. They
were the ones who first turned a spotlight on Brown's insensitivity
to gender equality in structuring its athletic programs; they have
been combatants in this war ever since; they participated in
bringing about an armistice in the form of the Joint Agreement; and
they have been protagonists in the latest round of hostilities.
Finally, no one -- not even the Objectors -- has suggested that the
class representatives have been lackadaisical in the performance of
their duties.
The First Circuit concludes that the district court considered the
quality of the representation afforded by the class representatives
and supportably found that representation to be adequate.
C. The Substance of the Amended Settlement
This brings the First Circuit to the Objectors' second claim of
error. The Objectors decry the substance of the settlement as not
"fair, reasonable, and adequate."
The First Circuit holds that all of Brown's women's athletes will
benefit from the settlement until 2024. And even though only two
women's varsity teams were reinstated, the record makes pellucid
that Brown -- not the class representatives or the class counsel --
chose those two teams. There is simply no indication that either
the class representatives or the class counsel "have sold out some
of the class members at the expense of others." Nor is the
settlement inequitable because the class' future members -- those
women students who will matriculate after 2024 -- will not enjoy
the protections of the Joint Agreement. That argument merely
reprises the mistaken notion that the original consent decree must
live forever. n this record, the district court acted within the
encincture of its discretion in finding that a 2024 end date
furnishes insufficient cause for disallowing the settlement.
Although the First Circuit upholds the district court's
determination that the Amended Settlement Agreement is fair,
reasonable, and adequate, it does not pretend that it is perfect.
But "there are unlikely to be ideal solutions to all the vexing
problems that might potentially arise" in Title IX class-action
litigation involving collegiate programs. The settlement reached,
though not perfect, marks a fitting conclusion to decades of
judicial intrusion upon Brown's home field.
Conclusion
The First Circuit need go no further. Ensuring gender equality in
collegiate athletic programs is serious business. Over nearly three
decades, Brown and the class representatives have made considerable
strides in this direction, and the need for judicial supervision
has diminished. The district court fairly concluded that the finish
line is in sight. For the reasons elucidated, the judgment of the
district court is affirmed.
A full-text copy of the Court's Oct. 27, 2021 Order is available at
https://tinyurl.com/9ret3ema from Leagle.com.
Robert J. Bonsignore, with whom Lisa Sleboda, Bonsignore Trial
Lawyers, PLLC, Anthony J. Gianfrancesco, and Gianfrancesco &
Friedmann LLP were on brief, for the Objectors.
Lynette Labinger , with whom Arthur H. Bryant --
abryant@baileyglasser.com -- Bailey & Glasser, LLP, Lori Bullock,
and Newkirk Zwagerman were on brief, for the Plaintiffs.
Marcella Coburn -- mcoburn@kaplanhecker.com -- with whom Roberta A.
Kaplan -- rkaplan@kaplanhecker.com -- Gabrielle E. Tenzer --
gtenzer@kaplanhecker.com -- Kaplan Hecker & Fink LLP, Robert Clark
Corrente -- rcorrente@whelancorrente.com -- and Whelan Corrente &
Flanders LLP were on brief, for the Defendants.
CAMBER ENERGY: Coggins Sues Over Share Price Drop
-------------------------------------------------
Ronald E. Coggins, individually and on behalf of all others
similarly situated, Plaintiffs, v. Camber Energy, Inc., James A.
Doris and Frank W. Barker, Jr., Defendants, Case No. 21-cv-03574,
(S.D. Tex., October 29, 2021), seeks to recover compensable damages
caused by violations of the federal securities laws and to pursue
remedies under the Securities Exchange Act of 1934.
Camber is an independent oil and natural gas company that acquires,
develops, and sells crude oil, natural gas, and natural gas
liquids. Its common stock trades on the NYSE. In December 2020,
Camber acquired a controlling interest in Viking Energy Group,
Inc., an independent exploration and production company. Then, in
February 2021, Camber executed a definitive merger agreement with
Viking to effect the full combination of the two entities.
Coggins alleges that Camber failed to disclose that it overstated
the financial and business prospects of Viking as well as the
combined company post-Merger and that its acquisition of a
controlling interest in Viking would exacerbate its delinquent
financial statements and listing obligations with the NYSE and that
an institutional investor was diluting Camber's shares at a
significant rate following the its update regarding the number of
its shares of common stock issued and outstanding
On May 24, 2021, Viking filed a quarterly report on Form 10-Q with
the SEC, reporting its financial and operating results for the
quarter ended March 31, 2021. That quarterly report disclosed,
among other results, first quarter earnings per share of $0.13
under generally accepted accounting principles, compared to GAAP
EPS of $1.39 in the same quarter the year prior, representing an
109.35% decrease year-over-year and first quarter revenue of $10.49
million, compared to revenue of $11.79 million in the same quarter
the year prior, representing an 11% decrease.
Camber issued a press release disclosing that, on May 21, 2021, the
NYSE had notified the Company that it was not in compliance with
the NYSE's continued listing standards because of issues that have
arisen in connection with finalizing the determination of the fair
values of both assets and liabilities associated with its
acquisition of a controlling interest in Viking. In December of
2020, following Viking's reported first quarter 2021 results,
Camber's stock price fell $0.02 per share, or 3.17%, to close at
$0.61 per share on May 24, 2021. Its stock price continued to
decline by an additional $0.04 per share, or 6.56%, to close at
$0.57 per share the following day as the market continued to digest
Viking's first quarter 2021 results, as well as Camber's
non-compliance notice from the NYSE.
On August 16, 2021, Viking declared a net loss of $9.85 million for
the quarter and that it had a stockholders' deficit of $15,054,324
and total long-term debt of $95,961,611. On this news, Camber's
stock price fell $0.03 per share, or 6.98%, to close at $0.57 per
share on May 25, 2021.
Coggins purchased Camber securities at artificially inflated prices
and was damaged thereby. [BN]
Plaintiff is represented by:
Jeremy A. Lieberman, Esq.
J. Alexander Hood II, Esq.
POMERANTZ LLP
600 Third Avenue, 20th Floor
New York, NY 10016
Telephone: (212) 661-1100
Facsimile: (212) 661-8665
Email: jalieberman@pomlaw.com
ahood@pomlaw.com
CAMBER ENERGY: Schall Law Firm Reminds of December 28 Deadline
--------------------------------------------------------------
The Schall Law Firm, a national shareholder rights litigation firm,
reminds investors of a class action lawsuit against Camber Energy,
Inc. ("Camber" or "the Company") (NYSE American: CEI) for
violations of Sections 10(b) and 20(a) of the Securities Exchange
Act of 1934 and Rule 10b-5 promulgated thereunder by the U.S.
Securities and Exchange Commission.
Investors who purchased the Company's securities between February
18, 2021, and October 4, 2021, inclusive (the "Class Period"), are
encouraged to contact the firm before December 28, 2021.
We also encourage you to contact Brian Schall of the Schall Law
Firm, 2049 Century Park East, Suite 2460, Los Angeles, CA 90067, at
310-301-3335, to discuss your rights free of charge. You can also
reach us through the firm's website at www.schallfirm.com, or by
email at brian@schallfirm.com.
The class, in this case, has not yet been certified, and until
certification occurs, you are not represented by an attorney. If
you choose to take no action, you can remain an absent class
member.
According to the Complaint, the Company made false and misleading
statements to the market. Camber overstated the business prospects
of Viking Energy Group, Inc. ("Viking") as well as its combined
post-merger business. The Company failed to inform investors that
its investment in Viking would add strain to its already tenuous
financial stability. An institutional investor was diluting the
Company's shares after its July 12, 2021 update to investors
detailing the number of shares of common stock issued and
outstanding. Based on these facts, the Company's public statements
were false and materially misleading throughout the class period.
When the market learned the truth about Camber, investors suffered
damages.
Join the case to recover your losses.
The Schall Law Firm represents investors around the world and
specializes in securities class action lawsuits and shareholder
rights litigation.
This press release may be considered Attorney Advertising in some
jurisdictions under the applicable law and rules of ethics.
Contacts:
The Schall Law Firm
Brian Schall, Esq.
www.schallfirm.com
Office: 310-301-3335
info@schallfirm.com [GN]
CANADA: Faces Class Action in B.C. Over "Birth Alerts" Practices
----------------------------------------------------------------
Avis Favaro, Elizabeth St. Philip and Alexandar Mae Jones, writing
for CTV News, report that a new class-action lawsuit has been filed
in B.C., with another soon expected in Ontario, seeking justice for
a disturbing practice that has split up hundreds of parents and
newborn infants, with Indigenous and racialized families
disproportionately affected.
Called "birth alerts," it's a practice in which social workers or
hospital staff flag an expecting parent -- often without their
knowledge — as being unfit to care for the child they are
carrying.
The result is newborn babies being taken from their mothers' arms,
sometimes shortly after birth.
"Birth alerts are part of a system, [a] system that assumes that
certain kinds of mothers can't look after their children, and then
that assumption gives rise to all the illegal behaviour -- privacy
being violated, stereotypes being imposed, and then at the end of
it you have these tragic stories," Reidar M. Mogerman, with CFM
Lawyers, told CTV News.
Nikida Steel knows first hand the pain that birth alerts cause.
A young Indigenous mother raised in foster homes, she was subjected
to birth alerts for her son, then each of her four other children,
eventually losing custody.
"I was basically criminalized," she told CTV News. "I felt
immediately, in pregnancy and immediately after birth, that I had
done something wrong or I was expected to do something wrong, and
that was really upsetting.
"They turned around, they took my children and then they
disappeared and left things in a big mess."
Steel is the Plaintiff in a new B.C. lawsuit setting out to
demonstrate that the practice is unlawful and needs to end.
Birth alerts are meant to be issued if the official is concerned
for the safety of a child due to instances of things such as
domestic violence, drug usage, or even history with child welfare
in the parent family.
But the lawsuit states that there are no clearly laid out
thresholds and rules to outline when a birth alert should be
issued, meaning that it is completely up to the discretion of child
protective agents or hospital workers.
"As a result of this arbitrary process, the speculative 'child
protection concerns' leading to the issuance of a birth alert are,
in many cases, motivated by discriminatory and harmful stereotypes
about the parenting capabilities of persons of certain
backgrounds," the lawsuit states.
Steel said that she hadn't done anything wrong before she was
flagged.
"There was paperwork that I read that said I was a heavy drug
user," she said. "I've never been a heavy drug user. I read
information that said I was in a treatment program. I was never in
a program. It said I had been sanctioned under the Mental Health
Act. I had never been sanctioned under the Mental Health Act.
"These were all assumptions that were made, these were implicit
biases. They don't see you. They form assumptions."
Steel is representing herself, as well as all of those who were
subject to a birth alert in British Columbia between Jan. 1, 2018
and Sept. 16, 2019.
In that time, British Columbia issued 423 birth alerts.
Of those, in 228 cases, more than half, the mothers were
Indigenous.
Following the release of the Final Report of the National Inquiry
into Missing and Murdered Indigenous Women and Girls in 2019, which
recommended abolishing the practice of targeting Indigenous women
with birth alerts, provinces started to ban the practice.
B.C. ended birth alerts in 2019, with many provinces following suit
in recent years. Prince Edward Island and Saskatchewan ended it
just this year, with Newfoundland and Labrador ceasing the practice
only a few months ago. Quebec's program will be placed under
review.
But victims and their children say they need compensation for
decades of trauma and family separation.
"They violate privacy, they give out a bunch of really sensitive
medical info without the consent of the mother, and they are
unconstitutional in that they discriminate," Mogerman said.
"You are assuming that certain kinds of women can't look after
their children and then creating structures so these very women
have less of a chance to look after their children. So it harms the
mother, it harms the child and it harms society."
Sometimes expecting mothers get flagged for a birth alert because
of issues outside of their control that they should have received
support for, or for issues they've already moved beyond, according
to Lynne Groulx, Chief Executive Officer at the Native Women's
Association of Canada.
"It could be a situation, for example, of poverty, so women are
living in poverty," Groulx said. "It could be a situation of, the
woman had a problem 10 years prior but 10 years have gone by."
"We need to see this completely banned except under exceptional
circumstances."
In one disturbing video which showed the result of a birth alert,
live-streamed on social media in 2019, police arrived at a Winnipeg
hospital only days after an infant's birth to take the child away.
The mother, an Indigenous woman, can be seen rocking back and forth
and crying while holding her baby.
In the video, which garnered more than 400,000 views, when the
family asked for five to 10 minutes of privacy to say goodbye,
police refused.
According to APTN News, the infant in the viral video was reunited
with her family a few months later when a Winnipeg judge awarded
guardianship to the mother's aunt.
But even if the child isn't permanently separated from the family,
the trauma of having a baby taken away and being treated like a
criminal in the process can be hugely damaging to families, experts
say.
"The damages [are] emotional, psychological," Groulx said. "It's a
family broken. It is just unacceptable in today's human rights
standards."
"There are countless tragic stories that stem from the birth alert
system," Mogerman added.
B.C.'s Ministry of Children and Family Development, when asked by
CTV News about the lawsuit, said they "are unable to comment on
matters that are before the court.
"What we can say is our government is committed to true and lasting
reconciliation with Indigenous peoples and my ministry's goal is to
keep children safe with their families and connected to their
culture and communities."
Birth Alerts are also still in place in Quebec and Nova Scotia.
A spokesperson for Nova Scotia told CTV News in an email that the
province is in discussions with Mi'kmaq and African Nova Scotian
leaders about the practice, which has been used in the province by
child welfare since 1991.
"We understand the troubling concerns related to the use of birth
alerts and how they have disproportionately impacted African Nova
Scotian and Indigenous families," the statement reads.
"Nova Scotia is working quickly toward ending the use of birth
alerts."
The practice is a legacy of colonization that started hundreds of
years ago, some say.
"This issue is not disconnected from what happened in residential
schools, and enforced sterilization and birth alerts tell the story
of why more than 50 per cent of Indigenous children [. . .] are in
care right now, and that itself should scandalize anyone," Groulx
said.
In Canada, more than half of the children in foster care are
Indigenous, despite Indigenous children making up just under eight
per cent of the country's child population.
Instead of birth alerts, advocates say vulnerable mothers need
programs and protection so families can stay together.
"I sustained extreme trauma based on the fact that I was subjected
to this," Steel said. "I would like to see them start supporting
families."
"The only way to reconciliation is to stop this type of treatment,
to stop the damage."
In the meantime, there will likely be more lawsuits in the coming
months, an indictment of a practice that took place in Canadian
hospitals for decades -- and is still ongoing in some corners of
the country. [GN]
CENTRAL COAST: Garcia Seeks to Certify Class & Subclasses
---------------------------------------------------------
In the class action lawsuit captioned as JENNIFER GARCIA,
individually and acting on behalf of a class of similarly situated
employees, v. CENTRAL COAST RESTAURANTS, INC., YADAV ENTERPRISES,
INC.; and DOES 1-20, Case No. 3:18-cv-02370-RS (N.D. Cal.), the
Plaintiff asks the Court to enter an order certifying the following
class and two subclasses pursuant to Rule 23 for all underlying
remedies including wage premiums,
interest, and derivative penalties:
-- Global Class
"Current and former non-exempt workers of Central Coast
Restaurants, Inc., stores in California who worked between
December 13, 2013, through the entry of final judgment in
this action for all remedies obtainable for the meal and
rest subclasses";
-- Meal Period Subclass No 1.
"Current and former non-exempt workers of Central Coast
Restaurants, Inc., who worked at least one shift of five
hours or greater at any time between December 13, 2013,
through the entry of final judgment in this action without
a record of all timely and proper meal period records;"
and
-- Rest Break Subclass No 2.
"Current and former non-exempt workers of Central Coast
Restaurants, Inc., who worked at least three and a half
hours (3.5) or greater at any time between December 13,
2013, through the entry of final judgment in this action
with records demonstrating the absence of timely and
proper rest periods."
Yadav Enterprises, Inc. operates a restaurant.
A copy of the Plaintiff's motion to certify class dated Nov. 4,
2021 is available from PacerMonitor.com at https://bit.ly/3qy4wKd
at no extra charge.[CC]
The Plaintiff is represented by:
Stan S. Mallison, Esq.
Hector R. Martinez, Esq.
Tania Fonseca, Esq.
MALLISON & MARTINEZ
1939 Harrison Street, Suite 730
Oakland, CA 94612-3547
Telephone: (510) 832-9999
Facsimile: (510) 832-1101
E-mail: StanM@TheMMLawFirm.com
HectorM@TheMMLawFirm.com
Tfonseca@TheMMLawFirm.com
CENTRAL FREIGHT: Class Cert. Briefing Extended in Henry Suit
------------------------------------------------------------
In the class action lawsuit captioned as RICKEY HENRY, an
individual, on behalf of himself, on behalf of all person similarly
situated, v. CENTRAL FREIGHT LINES, INC., a corporation; and DOES 1
through 50, inclusive, Case No. 2:16-cv-00280-JAM-JDP (E.D. Cal.),
the Hon. Judge John A. Mendez entered an order granting the
parties' joint stipulation and request to exceed stated page
limitations on briefing for Plaintiff's motion for class
certification and to continue the date for Plaintiff to file its
Reply to Defendant's Opposition to the Motion for class
certification to facilitate the depositions of the declarants
defendant will present in support of its Opposition, as follows:
1. Defendant shall have 20 pages to oppose Plaintiff's
Motion. Plaintiff shall have 10 pages for its reply in
support of the Motion;
2. Defendant shall produce its Declarants cited to in support
of its Opposition for deposition that agree to be
represented by Defendant's counsel no later than November
19, 2021, and if Defendant is unable to represent a
declarant and said Declarant need to be subpoenaed,
Defendant shall provide Plaintiff's counsel last known
contact information for those individuals and shall
stipulate to continuing Plaintiff's date to file a Reply
to the Opposition to Motion for Class Certification should
the Declarant require the issuance of a subpoena in order
to appear at deposition; and
3. Plaintiff's Reply to the Opposition shall be continued
from November 17, 2021 to December 3, 2021
4. The Hearing on Plaintiff's motion for class certification
will be held on December 14, 2021.
Central Freight provides transportation services.
A copy of the Court's order dated Nov. 3, 2021 is available from
PacerMonitor.com at https://bit.ly/3F1o3qm at no extra charge.[CC]
CHARLES SCHWAB: Court Denies Bid to Certify Class in Crago Suit
---------------------------------------------------------------
In the case, ROBERT CRAGO, et al., Plaintiffs v. CHARLES SCHWAB &
CO., INC., et al., Defendants, Case No. 16-cv-03938-RS (N.D. Cal.),
Judge Richard Seeborg of the U.S. District Court for the Northern
District of California denied the Plaintiffs' motion certification
under Federal Rule of Civil Procedure 23(b)(1) and (b)(3).
Introduction
Lead Plaintiffs Robert Wolfson and Frank Pino, together with
Plaintiff K. Scott Posson, bring the putative class action to
redress alleged violations of securities law committed by
Defendants Charles Schwab & Co and Schwab Corp. The Plaintiffs
allege that between July 13, 2011 and Dec. 31, 2014, Schwab routed
customer orders to UBS Securities LLC ("UBS") in a manner
inconsistent with Schwab's duty of best execution. The Plaintiffs
aver that Schwab made material misrepresentations by stating that
it adhered to the duty of best execution and omitted key
information about an agreement to route most orders to UBS for
execution, without verifying that UBS was providing best
execution.
Background
Broker-dealers, such as Schwab, buy and sell securities such as
stocks and bonds for their clients. After receiving an order from a
client, the broker-dealer routes the order to a venue for
execution. Although sometimes a client specifies the venue an order
should be routed to, most retail orders are "non-directed,"
including the vast majority of retail orders placed with Schwab.
Non-directed orders allow the broker to choose a venue for
execution.
In 2004, Schwab and UBS entered into an Equities Order Handling
Agreement ("EOHA"), in which Schwab agreed to route many orders to
UBS. Schwab and UBS entered into the agreement after UBS acquired
the capital markets divisions of Schwab Corp. UBS paid Schwab
approximately $100 million each year the agreement was in effect to
receive the orders, and Schwab routed more than 95% of its retail
trade orders to UBS, even though other vendors were also
available.
The Plaintiffs aver that although Schwab stated on its website it
adhered to the duty of best execution, Schwab violated that duty in
routing most orders to UBS pursuant to the EOHA. They explain that
routing to UBS pursuant to the EOHA violated the duty of best
execution because of UBS's inferior performance as compared to
other possible vendors and Schwab's failure to monitor the
execution quality of the routed orders adequately, contrary to
claims on its website. They aver that Schwab failed to disclose the
EOHA to its retail clients, and clients such as the Plaintiffs
relied on Schwab's false statements when choosing to place orders
through Schwab. The result of Schwab's violation of the duty of
best execution, the Plaintiffs contend, is that customers in the
proposed class received higher prices for purchase orders and lower
prices for sell orders than if their broker-dealer had fulfilled
the duty of best execution, among other harms.
The Plaintiff moves to certify the following class: "All clients of
Charles Schwab & Co., Inc. or The Charles Schwab Corporation
(together, Schwab), between July 13, 2011 and Dec. 31, 2014, who
placed one or more non-directed equity orders during the Class
Period that were routed to UBS by Schwab pursuant to the Equities
Order Handling Agreement (EOHA) and that received price
disimprovement."
The Plaintiffs assert claims on behalf of the putative class under
Section 10(b) of the Securities Exchange Act of 1934, 15 U.S.C.
Section 78j(b), and U.S. Securities and Exchange Commission ("SEC")
Rule 10b-5 promulgated thereunder, 17 C.F.R. Sectio 240.10b-5.
"To recover damages in a private securities-fraud action under
Sections 10(b) and Rule 10b-5, a plaintiff must prove '(1) a
material misrepresentation or omission by the defendant; (2)
scienter; (3) a connection between the misrepresentation or
omission and the purchase or sale of a security; (4) reliance upon
the misrepresentation or omission; (5) economic loss; and (6) loss
causation.'"
Discussion
Schwab does not contest the adequacy and numerosity requirements,
but contests both the commonality and typicality requirements.
Judge Seeborg holds that as the Plaintiffs cannot demonstrate
commonality, typicality need not be reached. Demonstrating
commonality requires a common contention that "is capable of
classwide resolution -- which means that determination of its truth
or falsity will resolve an issue that is central to the validity of
each one of the claims in one stroke."
In the case, the crux of the inquiry for the reliance element is
whether each investor relied on Schwab's alleged misrepresentations
and omissions when conducting each particular trade. Although this
inquiry would require asking each investor a common question, i.e.,
whether they had read the alleged misrepresentation and relied on
it when choosing to trade with Schwab, there is not a common answer
that "resolves the issue that is central to the validity of each
one of the claims in one stroke." Instead, each plaintiff would
need to provide individualized evidence of their reliance.
The diverse motivations the Plaintiffs held for using Schwab
showcase the difficulty of demonstrating commonality as to
reliance. In addition to their stated reliance on Schwab's
affirmations that it provided best execution, Plaintiffs gave other
reasons for using Schwab, including the quality of its platform,
lower commissions as compared to other brokers, and recommendations
from family. Members of the putative class could have chosen to use
Schwab even if they had known Schwab was not providing best
execution. Indeed, for a consumer trading a small number of stocks,
knowledge of the relatively small individual losses attributed to a
failure to provide best execution may not have changed the
consumer's choice to use Schwab, considering the variety of other
factors at play when choosing a broker-dealer.
Given the millions of trades at issue in the proposed class, Judge
Seeborg holds that the need to analyze individualized proof of
reliance as to each proposed class member "gives no cause to
believe that all the Plaintiffs' claims can productively be
litigated at once." Thus, the commonality requirement has not been
satisfied.
The Plaintiffs seek certification under Rules 23(b)(1)(A) and
23(b)(3). In addition to certification not being appropriate for
the reason described, Judge Seeborg finds that certification is
also unavailable under Rule 23(b)(3) due to a lack of predominance.
Since the reliance presumption is not triggered in the case and the
Plaintiffs must present individualized proof of reliance, they
cannot demonstrate predominance.
Conclusion
Consistent with the foregoing, the motion for class certification
under Rules 23(a), 23(b)(1)(A), and 23(b)(3) is denied.
A full-text copy of the Court's Oct. 27, 2021 Order is available at
https://tinyurl.com/2k2ppzye from Leagle.com.
CHARTER COMMUNICATIONS: Can Compel Arbitration in Maharaj Suit
--------------------------------------------------------------
In the case, DEVANAN MAHARAJ, Plaintiff v. CHARTER COMMUNICATIONS,
INC., Defendant, Case No. 20-cv-00064-BAS-LL (S.D. Cal.), Judge
Cynthia Bashant of the U.S. District Court for the Southern
District of California grants the Defendant's motion to compel
arbitration of the Plaintiff's wage-and-hour claims, dismiss his
class-action claims, and stay his Private Attorney General Act
claim.
Background
Plaintiff Maharaj worked as a non-exempt maintenance technician for
the Defendant, a telecommunications company. He began his
employment in approximately November 2000. In approximately October
2017, the Plaintiff injured his shoulder and, consequently, went on
short-term disability leave from approximately December 2017
through approximately May 2018. Though he returned, in August 2018,
the Plaintiff went back on leave and never again resumed his duties
with the Defendant. While out on leave in 2019, the Plaintiff
submitted two applications for new positions with the Defendant.
Neither application was successful, and the Plaintiff ultimately
resigned in approximately November 2019.
On Nov. 5, 2019, the Plaintiff filed suit against the Defendant in
San Diego Superior Court, alleging pervasive violations of
California wage-and-hour laws and regulations during the time that
Defendant employed Plaintiff as a Technician. In addition, the
Plaintiff alleged claims on behalf of a putative class of similarly
situated Technicians and a claim pursuant to the California Private
Attorney General Act ("PAGA") premised upon the same factual bases
as his wage-and-hour claims. On Jan. 9, 2020, the Defendant removed
the action to the Court.
Approximately 13 months following Removal, and after filing two
motions to dismiss, propounding and responding to discovery, and
participating in court conferences and meet-and-confers with the
Plaintiff, the Defendant submitted the present Motion on March 17,
2021. It asserts that the Plaintiff "expressly agreed to arbitrate
all disputes" when he applied internally for new positions in
2019.
Specifically, the Defendant avers that, when the Plaintiff
completed his applications through the Defendant's online interface
known as "BrassRing," the Plaintiff agreed to (1) participate in
the Defendant's "employment-based legal dispute and resolution and
arbitration program," entitled "Solution Channel," and (2) be bound
by the terms of the Defendant's Mutual Arbitration Agreement
("MAA").
Neither party proffers evidence or otherwise avers that Plaintiff
was covered by a collective bargaining agreement or other
employment agreement pre-dating Solution Channel and the MAA.
Moreover, although the Plaintiff was a "current employee" at the
time of Solution Channel's implementation, the Defendant
acknowledges that, because of its own oversight, it never enrolled
the Plaintiff into Solution Channel.
Specifically, the Defendant asserts that it did "not present" the
Plaintiff "with the opportunity to participate in Solution Channel
in October 2017" because the Defendant's human-resources software
"had not yet updated to reflect that the Plaintiff had returned
from a recent leave of absence." Accordingly, the Defendant did not
send to the Plaintiff the Solution Channel "announcement email."
For that reason, the Defendant concedes that the Plaintiff was not
subject to the MAA by virtue of Solution Channel's implementation;
rather, the Defendant asserts the Plaintiff became bound by the MAA
when he first applied for a new position in March of 2019.
Analysis
The Defendant now moves to compel arbitration and, consequently, to
dismiss the Plaintiff's class action claims and stay the
Plaintiff's PAGA claim. The Defendant argues that the Plaintiff
agreed to arbitrate all wage-and-hour claims, including those
underlying the action, when he twice signed the MAA in March and
June of 2019. In opposition, the Plaintiff argues: (1) the parties
never agreed to arbitrate claims arising out of his employment as a
Technician; (2) the Defendant waived its right to compel
arbitration (Opp'n 11-14); and (3) the MAA is unconscionable under
California law and therefore unenforceable.
The Defendant does not contest that the Court must determine as a
preliminary matter whether an agreement to arbitrate exists.
However, it argues that Section B of MAA clearly and unmistakably
delegates arbitrability of "all" other arbitrability issues,
including waiver, scope, and validity, and thus precludes the Court
from reaching the Plaintiff's other arguments.
A. Formation of Contract to Arbitrate
Because the Plaintiff fails to dispute the existence of any
essential element of a valid contract under California law, and
because the Defendant has proffered sufficient evidence and
analysis in support of each such element, Judge Bashant finds that
the MAA controls this dispute. She holds that the meaning the
Plaintiff ascribes to the Defendant's failure to provide the
Plaintiff an opportunity to opt-out following his submission of
Project Manager and Field Operations Supervisor applications is
unsupported by the record. Most of all, this strand of the
Plaintiff's argument goes not to the MAA's validity -- it does not
raise questions about "the making of a contract" -- but towards the
scope of the MAA. It is akin to asking the Court whether the claims
underlying the action are "covered claims" delineated in Paragraph
1 of Section B of the MAA, which, Judge Bashant need not reach as
such gateway arbitrability issues.
B. Delegation of Arbitrability
The Plaintiff does not challenge the enforceability of the
Delegation Clause. And although the Plaintiff provides a single
legal authority in support of a narrower reading of that Clause,
Judge Bashant is unmoved. Instead, the Plaintiff argues that (1)
the Defendant waived its right to compel arbitration; (2) the MAA
does not cover claims arising prior to its signing; and (3) the MAA
is unconscionable. But these arguments are nonspecific to the
Delegation Clause and instead bear upon the scope and validity of
the MAA in its entirety, Judge Bashant finds. She ends its inquiry
here.
C. PAGA Claim
As mentioned, in addition to individual and class-based
wage-and-hour claims, the Complaint also contains a claim brought
pursuant to PAGA predicated upon identical factual allegations.
Both parties acknowledge that although the MAA contains a
representative action waiver, the Plaintiff's PAGA claims cannot be
waived.
Judge Bashant holds that the parties appear to agree that the MAA's
representative action waiver is invalid to the extent it applies to
the Plaintiff's PAGA claim. The Plaintiff does not, nor can he,
argue that the asserted PAGA waiver permeates the MAA with
unconscionability. Accordingly, Judge Bashant severs the PAGA
waiver pursuant to Section Q of the MAA, and grants the Defendant's
motion to compel arbitration of the Plaintiff's wage-and-hour
claims.
D. Stay and Dismissal
The FAA provides that when the claims asserted by a party are
"referable to arbitration," the Court will "stay the trial of the
action until such arbitration has been had." The Defendant requests
that the Court dismisses the Plaintiff's class-action claims and
stay his PAGA claim pending arbitration.
Given Judge Bashant's decision to grant the Defendant's Motion to
compel arbitration of the Plaintiff's wage-and-hour claims, the
Plaintiff cannot continue to serve as class representative of the
putative class. Accordingly, she dismisses the Plaintiff's
class-wide claims. Yet the Complaint's class claims do not warrant
dismissal with prejudice at this stage, inter alia, because the
Plaintiff's inadequacy as a class representative does not speak to
the merits of the class claims.
Turning next to the Defendant's request to hold in abeyance the
Plaintiff's PAGA claim, the Plaintiff argues that "staying the PAGA
action would produce no benefit for the proper administration of
this case."
Judge Bashant joins others in finding that where, as in the case,
the factual and legal overlap between arbitrable wage-and-hour
claims and nonarbitrable PAGA claims is considerable, courts are
well-within their discretion to stay the PAGA claims pending
arbitration of the individual claims, as it would serve the Court's
interest in efficiency and give proper effect both to the
principles enshrined in Rule 1 of the Federal Rules of Civil
Procedure and the parties' agreement to arbitrate.
Conclusion
In light of the foregoing, Judge Bashant grants the Defendant's
Motion. Specifically, she severs the PAGA waiver from the MAA as
discussed; orders the parties to proceed to arbitration with the
Plaintiff's individual wage-and-hour claims in the manner provided
for in the MAA; dismisses the Plaintiff's class-action claims
without prejudice; and stays the action.
Judge Bashant directs the Clerk of Court to administratively close
the case. The decision to administratively close the case pending
resolution of the arbitration does not have any jurisdictional
effect.
A full-text copy of the Court's Oct. 27, 2021 Order is available at
https://tinyurl.com/c8449u34 from Leagle.com.
CHOICE HOTELS: Simmons Sues Over Unpaid Overtime for Hotel Staff
----------------------------------------------------------------
ANGELA SIMMONS, on behalf of herself and all others similarly
situated, Plaintiff v. CHOICE HOTELS INTERNATIONAL, INC. and KFS
HERMITAGE, LLC, Defendants, Case No. 3:21-cv-00839 (M.D. Tenn.,
November 5, 2021) is a class action against the Defendants for
their failure to compensate the Plaintiff and similarly situated
employees overtime pay for all hours worked in excess of 40 hours
in a workweek in violation of the Fair Labor Standards Act.
The Plaintiff was employed by the Defendants as an hourly-paid
front-desk employee.
Choice Hotels International, Inc. is a hotel chain company, with
its principal office address located at 1 Choice Hotels Cir. Ste.
400, Rockville, Maryland.
KFS Hermitage, LLC is a limited liability company with its
principal office address located at 141 Godfrey Rd. E, Weston,
Connecticut. [BN]
The Plaintiff is represented by:
J. Russ Bryant, Esq.
Robert E. Turner, IV, Esq.
Robert E. Morelli, III, Esq.
JACKSON SHIELDS YEISER HOLT OWEN & BRYANT
262 German Oak Drive
Memphis, TN 38018
Telephone: (901) 754-8001
Facsimile: (901) 754-8524
E-mail: rbryant@jsyc.com
rturner@jsyc.com
rmorelli@jsyc.com
CLARK COUNTY, KY: Supreme Court Flips Summary Judgment in Jones
---------------------------------------------------------------
The Supreme Court of Kentucky reverses the trial court's summary
judgment in favor of the Appellees in the lawsuit entitled DAVID
JONES, INDIVIDUALLY, AND ON BEHALF OF ALL PERSONS SIMILARLY
SITUATED, Appellant v. CLARK COUNTY, KENTUCKY; AND FRANK DOYLE,
INDIVIDUALLY, Appellees, Case No. 2020-SC-0107-DG (Ky.).
Introduction
Kentucky Revised Statutes 441.265 outlines the required
reimbursement of incarceration fees by a prisoner. In the case,
Appellant Jones was presented with a bill for his incarceration
fees after 14 months in a county jail. Shortly after his release,
Jones was cleared of all charges.
The Supreme Court must decide whether, as the trial court ordered
in its summary judgment, a county jail may both retain the monies
collected from a prisoner and further bill the same prisoner for
the cost of his confinement after the charges against him have been
dropped.
Factual and Procedural Background
On Oct. 26, 2013, Jones was arrested and booked into the Clark
County Detention Center (CCDC). Pursuant to KRS 441.265(2), the
CCDC charged Jones a $35 booking fee, a $10 fee for his first day's
room and board, and a $5 fee for a hygiene kit. The CCDC continued
to charge Jones a $10 per diem fee for room and board until Jones
posted bond on Dec. 15, 2014. Additionally, Jones was charged $2.69
for each indigent kit he received during his confinement. During
his incarceration, the CCDC automatically deducted $256.44 from
Jones' canteen account.
At the time of his release in December 2014, Jones owed the CCDC
$4,008.85 in fees. Jones paid $20 toward the accumulated debt
before being advised to stop by counsel. On April 2, 2015, all the
criminal charges against Jones were dismissed without prejudice.
On Nov. 20, 2015, Jones filed a class action complaint in the U.S.
District Court for the Eastern District of Kentucky against both
Clark County and Frank Doyle, the Clark County Jailer, in his
individual capacity. In that complaint, he alleged that CCDC's
policy of billing for the fees accumulated during his incarceration
even though his charges were dismissed violated both KRS 441.265
and his Fourth and Fourteenth Amendment rights under the U.S.
Constitution. Various state law claims were also raised in Jones'
complaint. Clark County and Doyle filed a joint motion to dismiss,
which was granted based upon the trial court's finding that no
violations of due process had occurred.
Shortly thereafter, Jones appealed to the United States Court of
Appeals for the Sixth Circuit. The Sixth Circuit affirmed the
district court's dismissal of the action, concluding that assessing
incarceration fees did not violate Jones' constitutional rights
under the Fourth and Fourteenth Amendment. The Court declined to
exercise jurisdiction on the state law claims raised by Jones.
On Feb. 3, 2017, Jones filed a class action complaint against the
same appellees--Clark County and Doyle--in the Clark Circuit Court.
In the complaint, Jones claimed that KRS 441.265 did not permit the
CCDC to bill a former prisoner for the cost of his confinement when
all charges against the prisoner had been dismissed. Jones further
alleged that the assessment of such fees violated Sections 1, 2,
10, and 17 of the Kentucky Constitution. Jones also asserted that
Clark County and Doyle negligently engaged in a conspiracy and
improperly converted Jones' property. Finally, Jones sought damages
based upon a claim of unjust enrichment and restitution.
Clark County and Doyle filed an answer and a motion for summary
judgment, arguing that KRS 441.265 authorized the CCDC to assess
and bill for the incarceration fee. They further claimed the
statute did not violate the Kentucky Constitution. Jones responded,
contending that the plain language of KRS 441.265 requires a
sentencing court to assess incarceration fees, not the local jail.
The trial court granted summary judgment in favor of Clark County
on Nov. 1, 2019. The trial court found that KRS 441.265 permitted
CCDC to assess the $4,008.85 in fees. Additionally, the trial court
found that no provision of the Kentucky Constitution had been
violated. Jones appealed the order to the Kentucky Court of
Appeals.
On Feb. 14, 2020, the Court of Appeals issued an opinion affirming
the trial court's order for summary judgment. Focusing on the
statutory definition of "prisoner" found in KRS 441.005(3)(a) and
prior precedent, the Court rejected Jones' assertion that a jail is
only allowed to assess fees against persons who have been convicted
of crimes under KRS 441.265. The Court also held that Sections 1,
2, 10, and 17 of the Kentucky Constitution had not been violated.
The Court of Appeals further stated that the fees assessed did not
infringe on Jones' presumption of innocence. Finally, all of Jones'
other allegations were held to be moot or without merit.
Mr. Jones moved for discretionary review, which the Supreme Court
granted.
Analysis
First, the Supreme Court addresses the trial court's interpretation
of KRS 441.265. Jones alleges that the CCDC's assessment and
collecting of fees from a former prisoner who has been cleared of
all charges violates Kentucky law, specifically, KRS 441.265, which
provides in relevant part: (1) A prisoner in a county or local jail
will be required by the sentencing court to reimburse the county
for expenses incurred by reason of the prisoner's confinement as
set out in this section, except for good cause shown; and (2)(a)
The jailer may adopt, with the approval of the county's governing
body, a prisoner fee and expense reimbursement policy, which may
include, but not be limited to, the following: an administrative
processing or booking fee, a per diem for room and board of not
more than fifty dollars ($50) per day or the actual per diem cost,
which is less, for the entire period of time the prisoner is
confined to the jail, and actual charges for medical and dental
treatment.
Justice Robert Conley, writing for the Panel, notes that in
analyzing this statute, the trial court correctly stated that KRS
441.265 does not specifically say that the provisions apply only to
convicted prisoners. Thus, the trial court suggested that it is
unreasonable to assume that in referring to the "sentencing court"
such a limitation exists as argued by Jones, especially since the
following sections of KRS 441.265 permit county jails to not only
bill and automatically deduct incarceration fees from prisoners,
but also to pursue any unpaid fees after the prisoner has been
released.
The trial court then focused on the statutory definition of
"prisoner" under KRS 441.005(3), which provides, in relevant part,
that a "'prisoner' means any person confined in jail pursuant to
any code, ordinance, law or statute of any unit of government and
who is: (a) charged with or convicted with a crime." The trial
court concluded that to interpret KRS 441.265 as requested by Jones
would negate the definition of prisoner within the statute since it
clearly includes persons who are "charged with" a crime. However,
in focusing on the definition of "prisoner," the trial court failed
to consider KRS 441.265 as a whole, including the phrase
"sentencing court."
The trial court also overlooked the significance of KRS 441.265(1)
in this case, Judge Conley finds.
The statutory language of KRS 441.265 is clear and unambiguous on
its face, Judge Conley explains. Only the sentencing court is
vested with the authority to order the payment of fees associated
with incarceration of a prisoner in a county jail. The inclusion of
"sentencing court" implies that a criminal conviction occurred
since without a conviction there would be no need for a sentencing
court. Jones was never convicted. All charges against him were
dropped. As a result, he was never brought before a sentencing
court in this matter. Jones was never ordered by a sentencing court
to pay any of the fees associated with his incarceration and no
order was ever pursued by the CCDC.
In ignoring the importance of the sentencing court in KRS 441.265,
the lower courts fail to make KRS 441.265 consistent with other
statutes concerned with reimbursement of incarceration fees, such
as KRS 532.352 and KRS 532.358, Judge Conley points out.
KRS 532.358 also reinforces the importance of the sentencing court
by stating that any prisoner who has completed his sentence in a
county or regional jail will, from the day incarceration ceases and
within the time and amount designated by the sentencing court, pay
reimbursement for his incarceration to the state or local
government. Once again, ignoring the term "sentencing court" in KRS
441.265 and instead focusing on the definition of "prisoner"
without reference to "sentencing court" makes the statute
incongruous as a whole and in relation to other statutes, Judge
Conley notes. Together KRS 441.265, 532.352, and 532.358 make it
clear that the sentencing court is the only entity able to order
the reimbursement and billing of incarceration fees, not the county
jail.
Due to the $256.44 CCDC automatically deducted from the canteen
account, the Supreme Court must address KRS 441.265(6) and Cole v.
Warren County, 495 S.W.3d 712 (Ky. 2015). In Cole, the Court of
Appeals affirmed the right of a jail to automatically deduct fees
from a prisoner's account to cover the incarceration costs while
the prisoner is being held in the county jail pursuant to KRS
441.265(6).
The Supreme Court says it does not dispute the jail has the right
to deduct fees from a prisoner's canteen account if the funds
become available. However, any funds automatically deducted by a
county jail before an order from a sentencing court must be
credited to the ordered reimbursement. If, as in this case, no
order from a sentencing court exists or will ever exist, the
automatically deducted fees must be returned to the former
prisoner.
In presenting the $4,008.85 bill to Jones upon his release and
keeping the $256.44 automatically deducted from Jones' canteen
account after it became clear no order for reimbursement from a
sentencing court would be issued, the CCDC violated the statute,
Judge Conley holds. As a result, the $256.44 automatically
withdrawn from Jones' canteen account and the $20 Jones paid toward
the jail's bill should be refunded to him.
Reviewing all facts and inferences in Jones favor, the Supreme
Court holds that the trial court erred in deciding in favor of the
CCDC. The Supreme Court holds that KRS 441.265 has been violated
because the billing and collecting of fees assessed by the CCDC
cannot be carried out without the order of a sentencing court. No
sentencing court ever issued such an order in this case, nor will
such an order be promulgated due to the dismissal of the charges.
Therefore, the jail, in violation of the statute, issued the
$4,008.85 bill to Jones. Additionally, the CCDC erred in not
refunding Jones the $256.44 plus the $20 for a total of $276.44.
Accordingly, the Supreme Court reverses the order for summary
judgment.
Conclusion
For these reasons, the Supreme Court reverses the Court of Appeal
affirmation of the Clark Circuit Court's Order for summary
judgment. The Supreme Court remands the case back to the Clark
Circuit Court for further action in accordance with this Opinion.
All sitting. All concur.
A full-text copy of the Court's Opinion dated Oct. 28, 2021, is
available at https://tinyurl.com/8htvu8ek from Leagle.com.
Gregory A. Belzley -- gbelzley3b@gmail.com -- Belzley, Bathurst, &
Bentley, P.O. Box 278, in Prospect, Kentucky 40059.
Matt Boyd, Boyd Law Office, 155 E. Main Street, Suite 220 in
Lexington, Kentucky 40507, counsel for the Appellant.
Jeffrey C. Mando -- jmando@adamsattorneys.com -- Adams, Stepner,
Woltermann, & Dusing, PLLC, 40 West Pike Street, in Covington,
Kentucky 41012, counsel for the Appellee.
CLARKWESTERN DIETRICH: Rueda Suit Removed to E.D. California
------------------------------------------------------------
The case styled GILBERTO RUEDA, individually and on behalf of all
others similarly situated v. CLARKWESTERN DIETRICH BUILDING SYSTEMS
LLC; and DOES 1 through 20, inclusive, Case No. 34-2021-00307823,
was removed from the Superior Court in the State of California, in
and for the County of Sacramento, to the U.S. District Court for
the Eastern District of California on November 5, 2021.
The Clerk of Court for the Eastern District of California assigned
Case No. 2:21-cv-02053-MCE-AC to the proceeding.
The case arises from the Defendant's alleged violations of the
California Labor Code and the California's Business and Professions
Code including failure to pay minimum wages, failure to pay
overtime wages, failure to provide meal periods, failure to permit
rest breaks, failure to provide accurate itemized wage statements,
failure to pay all wages due upon separation of employment, and
unfair business practices.
Clarkwestern Dietrich Building Systems LLC is a manufacturer of
cold-formed steel framing, headquartered in Ohio. [BN]
The Defendant is represented by:
Nathan W. Austin, Esq.
Bailey A. McCabe, Esq.
JACKSON LEWIS P.C.
400 Capitol Mall, Suite 1600
Sacramento, CA 95814
Telephone: (916) 341-0404
Facsimile: (916) 341-0141
E-mail: nathan.austin@jacksonlewis.com
bailey.mccabe@jacksonlewis.com
COCA-COLA: Seeks Dec. 6 Extension to File Class Cert. Response
--------------------------------------------------------------
In the class action lawsuit captioned as KATHLEEN SPANER v. THE
COCA-COLA CO., Case No. 1:19-cv-22210-JEM (S.D. Fla.), the
Defendant asks the Court to enter an order extending the time for
them to file its response to Plaintiff's motion for class
certification by four weeks, up to and including December 6, 2021.
This extension of time is requested to allow Defendant time to
fully respond to Plaintiff's voluminous Motion, to complete
additional discovery in response to new issues presented in the
motion for class certification.
The Coca-Cola Company is a multinational beverage corporation
incorporated under Delaware's General Corporation Law and
headquartered in Atlanta, Georgia. The Coca-Cola Company has
interests in the manufacturing, retailing, and marketing of
nonalcoholic beverage concentrates and syrups, and alcoholic
beverages.
A copy of the Defendant's motion dated Nov. 2, 2021 is available
from PacerMonitor.com at https://bit.ly/3CY4b6V at no extra
charge.[CC]
The Defendant is represented by:
Cory W. Eichhorn, Esq.
Nipun J. Patel, Esq.
Anthony J. Palermo, Esq.
HOLLAND & KNIGHT LLP
701 Brickell Avenue, Suite 3300
Miami, FL 33131
Telephone: (305) 374-8500
Facsimile: (305) 789-7799
E-mail: cory.eichhorn@hklaw.com
nipun.patel@hklaw.com
anthony.palermo@hklaw.com
COMPARE THE MARKET: Hausfeld Files Opt-out Class Action Lawsuit
---------------------------------------------------------------
Olivia Rafferty, writing for GCR, reports that Hausfeld has filed
an opt-out class action claim against Compare The Market seeking
over EUR440 million in damages based on an infringement decision by
the UK's antitrust enforcer, although the lawsuit may be dropped if
the price comparison website is successful in its appeal that began
on Nov. 1. [GN]
CORECIVIC OF TENNESSEE: Court Denies Bid to Transfer Jim FLSA Suit
------------------------------------------------------------------
In the case, ADRIAN JIM, on behalf of himself and others similarly
situated, Plaintiff v. CORECIVIC OF TENNESSEE, LLC, Defendant, Case
No. CIV 20-0618 JB/JFR (D.N.M.), Judge James O. Browning of the
U.S. District Court for the District of New Mexico denied the
Defendant's Motion to Transfer, filed Nov. 16, 2020.
Background
Until 2019, Jim worked in New Mexico as a correctional officer for
CoreCivic Tennessee, a company that operates private prison
services nationwide. As a correctional officer, Jim was tasked with
helping to manage and oversee the inmate population at CoreCivic
Tennessee facilities. Correctional and detention officers, like
Jim, are "responsible for the custody and discipline of inmates and
detainees held at correctional and detention centers operated by"
CoreCivic Tennessee. Correctional and detention officers also are
tasked with searching for contraband, providing security, and
counting, feeding, and supervising detainees and inmates.
Every time Jim and other corrections officers arrive at work, they
undergo a thorough screening to ensure they are not bringing
prohibited items into the facilities. Correctional officers have to
empty their bags and pockets, remove their shoes, belts, and
jackets, take off all metal objects, and hand over their personal
items for inspection. After shedding items for search, correctional
officers walk through a metal detector and undergo "a further
search if any metal objects were detected." Once cleared,
correctional officers then must put back on their shoes, belts, and
jackets, and replace all personal items. Last, before correctional
officers can clock in to work, they must pass through several
security doors.
The entire security screening process lasts between ten and twenty
minutes. Although CoreCivic Tennessee requires these security
screenings, tells correctional officers -- including Jim -- when to
arrive at the prison centers, and although these security
screenings are necessary for the prisons' safety and security, as
well as the safety and security of the correctional officers and
their work, CoreCivic Tennessee does not compensate Jim or other
correctional officers for this time.
On Feb. 25, 2020, Jim's counsel, on behalf of other CoreCivic
Tennessee employees, sued CoreCivic Tennessee in the United States
District Court for the Northern District of Ohio, alleging
violations of the Fair Labor Standards Act, 29 U.S.C. Section 203
("FLSA"), and Ohio's minimum wage laws. Several weeks later, on
March 12, 2020, again on CoreCivic Tennessee employees' behalf,
Jim's counsel sued CoreCivic Tennessee in the United States
District Court for the Western District of Oklahoma and in the
United States District Court for the District of Colorado, also
alleging FLSA violations.
CoreCivic Tennessee moved to transfer the Northern District of Ohio
case to the Middle District of Tennessee, where CoreCivic Tennessee
is headquartered. It intended to file similar motions to transfer
the Western District of Oklahoma and District of Colorado cases to
the Middle District of Tennessee. Rather than oppose CoreCivic
Tennessee's motions to transfer, however, Jim's counsel "stipulated
to the dismissal of each of these cases without prejudice, in order
to consolidate the plaintiffs and their claims into a single
lawsuit in the Middle District of Tennessee."
On May 15, 2020, all the claims that were alleged in the Northern
District of Ohio, Western District of Oklahoma, and District of
Colorado cases were consolidated, and pleaded as a single action
against CoreCivic Tennessee in the Middle District of Tennessee
(Ballard, et al. v. CoreCivic of Tennessee, LLC, No. 3 CIV 20-0428
(M.D. Tenn. May 15, 2020)). Ballard contains two causes of action
for unpaid overtime wages, in violation of the FLSA and Ohio's
minimum wage laws.
The parties stipulated to a FLSA collective action defined as: "All
current and former Correctional Officers, Senior Correctional
Officers, Detention Officers, and Senior Detention Officers
classified as non-exempt during the two-year period before the date
of mailing of the notice contemplated by this stipulation in all
correctional and detention centers nationwide excluding those who
worked exclusively at the Eloy Detention Center in Arizona, Lake
Erie Correctional Institution in Ohio, the Trousdale Turner
Correctional Center in Tennessee, and any location in California."
Ballard is also brought on behalf of a group of Ohio workers,
defined as: "All of Defendant's current and former correctional and
detention officers who worked in Ohio and worked 40 or more hours
in at least one workweek at any point within two years preceding
this action," (Jeanne Ballard, Marsha Caposell, Gregory Scott
Glatian, and John Gandara on behalf of themselves and others
similarly situated v. CoreCivic of Tennessee, LLC., Class and
Collective Action Complaint, filed Nov. 16, 2020 ("Ballard
Complaint")).
On June 25, 2020, Jim -- on behalf of himself and others similarly
situated -- filed the suit in the District of New Mexico, alleging
that, by not compensating its correctional and detention officers
for the time spent undergoing security screening, CoreCivic
Tennessee violated the New Mexico Minimum Wage Act, N.M.S.A.
Section 50-4-22(D), breached its employment contracts with its
employees, withheld the reasonable value of services (quantum
meruit), and were unjustly enriched. Arguing that the case is
substantially like Ballard, CoreCivic Tennessee asks the Court to
transfer this case to the Middle District of Tennessee. The Court
held a hearing on Dec. 22, 2020.
CoreCivic Tennessee asks the Court to transfer the case to the
Middle District of Tennessee. In the Motion, CoreCivic Tennessee
states that Jim's counsel filed Ballard in the Middle District of
Tennessee on May 15, 2020, "alleging that CoreCivic Tennessee
failed to compensate Correctional and Detention Officers in
numerous states (including New Mexico) for time spent in security
screening," in violation of the FLSA and Ohio's overtime
compensation statute, Ohio Rev. Code. Ann. Section 4111.03.
CoreCivic Tennessee argues that, pursuant to the "first-to-file
rule of federal comity," the Middle District of Tennessee "assumed
jurisdiction over this dispute before the District of New Mexico."
According to CoreCivic Tennessee, the "chronology of the actions,
the similarity of the parties, and the similarity of the issues"
support transferring the case to the Middle District of Tennessee.
Jim responds to the Motion, requesting that the Court not transfer
the case to the Middle District of Tennessee. He states that this
case "concerns a New Mexico resident who worked in New Mexico at a
New Mexico prison and brought claims arising solely under New
Mexico law while seeking to represent only New Mexico residents in
a class action." Jim, therefore, makes two arguments: (i) the
first-to-file rule does not support transfer; and (ii) the 28
U.S.C. Section 1404(a) factors indicate that the District of New
Mexico is the proper and most convenient forum for the case.
Analysis
CoreCivic Tennessee argues that the Court should transfer the case
to the Middle District of Tennessee, because: (i) the first-to-file
rule gives priority to the Middle District of Tennessee's exercise
of jurisdiction; and (ii) the 28 U.S.C. Section 1404 factors
neither apply nor counsel against transfer.
Judge Browning disagrees with CoreCivic Tennessee's arguments and
concludes: (i) that the first-to-file rule does not give
jurisdictional priority to the Middle District of Tennessee,
because this case's parties and claims are different than Ballard's
parties and claims; and (ii) that 28 U.S.C. Section 1404 does not
strongly favor transfer, because Jim chose to file this case in the
District of New Mexico, and CoreCivic Tennessee does business in
New Mexico.
With respect to the file-to file rule, Judge Browning first opines
that chronology favors transferring the case to the Middle District
of Tennessee. The consolidated Ballard case was filed in the Middle
District of Tennessee on May 15, 2020. The instnat case was filed
on June 25, 2020. Without any comparison of the parties, claims, or
issues in the two cases, therefore, chronology favors transfer.
Second, the parties' similarity does not favor transfer. Because
the Ballard's plaintiffs and the case's plaintiffs do not or will
not overlap, the parties do not substantially overlap.
Third, the claims or issues' similarity does not favor transfer. In
the case, too, there must be "substantial overlap" in the issues or
claims to weigh in favor of transfer. Although both Ballard and the
case deal with the same factual issue -- namely, the time that
CoreCivic Tennessee correctional and detention officers spend
undergoing security checks before they are allowed to clock into
work at CoreCivic Tennessee facilities -- they hinge on different
legal issues' outcomes. Ballard contends that CoreCivic Tennessee
violates the FLSA and Ohio's overtime compensation statute, Ohio
Rev. Code Ann. Section 4111.03. In the case, Jim alleges that
CoreCivic Tennessee violated the New Mexico Minimum Wage Act,
N.M.S.A. Section 50-4-22(D), breached its employment contracts with
its employees, withheld the reasonable value of services (quantum
meruit), and were unjustly enriched.
In light of the foregoing, because the Plaintiffs do not overlap,
and the issues or claims are not substantially similar, the two
cases are "not so similar that [they] would cause duplicative
efforts."
With respect to the 28 U.S.C. Section 1404(a) factors, Judge
Browning opines that the 28 U.S.C. Section 1404(a) factors do not
favor transferring the case to the Middle District of Tennessee.
Jim filed the case in the District of New Mexico alleging
violations that occurred in New Mexico. CoreCivic Tennessee does
business in New Mexico, which weighs against transfer. There is no
sound reason to conclude that, overall, witnesses are more
accessible in Tennessee than in New Mexico. CoreCivic Tennessee
does not argue that it would be more expensive to make the
necessary proof in New Mexico than it would be in Tennessee.
Finally, any administrative costs that the judiciary would save by
transferring this case are either speculative or, at best,
negligible. CoreCivic Tennessee, therefore, does not meet its
burden to demonstrate that the District of New Mexico is an
inconvenient forum. Because Jim's choice of forum is entitled to
deference, the District of New Mexico is not an improper venue.
Conclusion
Judge Browning denied the Defendant's Motion to Transfer.
A full-text copy of the Court's Oct. 27, 2021 Memorandum Opinion is
available at https://tinyurl.com/35awtyne from Leagle.com.
Anthony J. Lazzaro -- anthony@lazzarolawfirm.com -- Chastity
Christy, Lori Griffin, The Lazzaro Law Firm, L.L.C., in Moreland
Hills, Ohio, and Hans Nilges -- hans@ohlaborlaw.com -- Nilges
Draher, L.L.C., in Massillon, Ohio, and Don Foty --
dfoty@hftrialfirm.com -- Hodges & Foty, L.L.P., in Houston, Texas,
Attorneys for the Plaintiffs.
Christian Angotti -- cangotti@littler.com -- Robert W. Pritchard --
rpritchard@littler.com -- Littler Mendelson, P.C., in Pittsburgh,
Pennsylvania, and Robert Shawn Oller, Littler Mendelson, P.C., in
Phoenix, Arizona, Attorneys for the Defendant.
CVS HEALTH: HIV, AIDS Patients File Class Action
------------------------------------------------
Modern Healthcare reports that a group of patients with HIV and
AIDS gained another ally in their class-action against CVS Health's
Caremark on Oct. 28, with the AIDS Healthcare Foundation telling
the U.S. Supreme Court that the pharmacy benefit manager's patient
steering practices violated federal disability law. AHF's amicus
brief supports a suit at least five patients brought against the
retail health giant in 2018, claiming the company's blanket
requirement that all customers receive prescriptions from a CVS
mail-order pharmacy or retail pharmacist threatened their health
and privacy. The patients receive their drug benefits through their
employers, which have contracted with CVS to administer their
benefits. They argue that they are being disproportionately
impacted by a CVS requirement that applies to all plan
participants. [GN]
D'ARGENT FRANCHISING: Williams Loses Conditional Certification Bid
------------------------------------------------------------------
In the class action lawsuit captioned as SAMANTHA WILLIAMS, ET AL.,
v. D'ARGENT FRANCHISING, L.L.C., ET AL., Case No. 1:20-cv-01501-JPM
(W.D. La.), the Hon. Judge Joseph H L Perez-Montes entered an
order:
1. denying motion for conditional certification;
-- The Court will entertain later reconsideration
following limited pre-notice discovery and additional
briefing;
2. directing the parties, within 14 days of this Order, to
meet and confer to discuss the scope of pre-notice
discovery necessary to determine which Putative Class
Members are sufficiently "similarly situated" to justify
notice; and
3. denying as moot Plaintiffs' motion to expedite.
A copy of the Court's order dated Nov. 2, 2021 is available from
PacerMonitor.com at https://bit.ly/305x7f6 at no extra charge.[CC]
D-MARKET ELECTRONIC: Faruqi & Faruqi Reminds of Dec. 20 Deadline
----------------------------------------------------------------
Faruqi & Faruqi, LLP, a leading national securities law firm, is
investigating potential claims against D-Market Electronic Services
("D-Market" or the "Company") (NASDAQ: HEPS) and reminds investors
of the December 20, 2021 deadline to seek the role of lead
plaintiff in a federal securities class action that has been filed
against the Company.
If you suffered losses exceeding $50,000 investing in D-Market
stock or options purchased or otherwise acquired D-MARKET pursuant
or traceable to the Company's July 1, 2021 initial public stock
offering (the "IPO") and would like to discuss your legal rights,
call Faruqi & Faruqi partner Josh Wilson directly at 877-247-4292
or 212-983-9330 (Ext. 1310). You may also click here for additional
information: www.faruqilaw.com/HEPS.
There is no cost or obligation to you.
Faruqi & Faruqi is a leading minority and Woman-owned national
securities law firm with offices in New York, Delaware,
Pennsylvania, California and Georgia.
As detailed below, the lawsuit focuses on whether the Company and
its executives violated federal securities laws by making false
and/or misleading statements and/or failing to disclose:
(1) that Hepsiburada suffered a sharp deceleration in operational
and sales growth during second quarter 2021; (2) that, as a result,
the Company initiated certain actions to fortify its competitive
position, including investing in electronics and high frequency
categories and discounting certain categories; (3) that, as a
result of the foregoing, Hepsiburada's revenue and GMV had declined
during second quarter 2021; and (4) 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.
On August 26, 2021, Hepsiburada announced its second quarter 2021
financial results-the quarter which had ended before the IPO
closed-reporting that revenue grew 5.2%, reflecting "the shift in
GMV mix in favor of Marketplace." The Company also reported that
EBITDA was "negative TRY 188.6 million in Q2 2021 compared to
positive TRY 71.1 million in Q2 2020 . . . due to lower gross
contribution driven primarily by investments to fortify our
position in electronics, investments to penetrate in high frequency
categories as well as higher customer demand for low margin
products."
On this news, the Company's ADR price fell $3.05, or 25%, to close
at $8.97 per ADR on August 26, 2021, on unusually heavy trading
volume.
The court-appointed lead plaintiff is the investor with the largest
financial interest in the relief sought by the class who is
adequate and typical of class members who directs and oversees the
litigation on behalf of the putative class. 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. Your ability to share in any
recovery is not affected by the decision to serve as a lead
plaintiff or not.
Faruqi & Faruqi, LLP also encourages anyone with information
regarding D-Market's conduct to contact the firm, including
whistleblowers, former employees, shareholders and others. [GN]
D-MARKET ELECTRONIC: Thornton Law Reminds of Dec. 20 Deadline
-------------------------------------------------------------
The Thornton Law Firm alerts investors that a class action lawsuit
has been filed on behalf of investors of D-MARKET Electronic
Services & Trading d/b/a Hepsiburada (NASDAQ: HEPS). The case is
currently in the lead plaintiff stage. Investors who purchased
Hepsiburada American Depositary Receipts ("ADRs") pursuant or
traceable to the registration statement and prospectus issued in
connection with the Company's July 2021 initial public offering may
contact the Thornton Law Firm's investor protection team by
visiting www.tenlaw.com/cases/HEPS for more information. Investors
may also email investors@tenlaw.com or call 617-531-3917.
FOR MORE INFORMATION: www.tenlaw.com/cases/HEPS
The case alleges that the Registration Statement was materially
false and misleading and omitted that: (i) Hepsiburada suffered a
sharp deceleration in operational and sales growth during second
quarter 2021; (ii) as a result, Hepsiburada initiated certain
actions to fortify its competitive position, including investing in
electronics and high frequency categories and discounting certain
categories; and (iii) as a result of the foregoing, Hepsiburada's
revenue and GMV had declined during second quarter 2021.
Interested HEPS investors have until December 20, 2021 to retain
counsel and apply to be a lead plaintiff if they are interested to
do so. A lead plaintiff acts on behalf of all other investor class
members in managing the class action. Investors do not need to be a
lead plaintiff in order to be a class member. If investors choose
to take no action, they can remain an absent class member. The
class has not yet been certified. Until certification occurs,
investors are not represented by an attorney. Thornton Law Firm is
not currently representing a plaintiff who filed a complaint but is
investigating the case on behalf of investors interested in being a
lead plaintiff.
FOR MORE INFORMATION: www.tenlaw.com/cases/HEPS
Thornton Law Firm's securities attorneys are highly experienced in
representing investors in recovering damages caused by violations
of the securities laws. Its attorneys have established track
records litigating securities cases in courts throughout the
country and recovering losses on behalf of investors. This may be
considered Attorney Advertising in some jurisdictions. Prior
results do not guarantee or predict a similar outcome with respect
to any future matter.
CONTACT:
Thornton Law Firm LLP
1 Lincoln Street
State Street Financial Center
Boston, MA 02111
www.tenlaw.com/cases/HEPS [GN]
DAHER CLEANING: Alvarez Seeks to Certify Hourly-Paid Employee Class
-------------------------------------------------------------------
In the class action lawsuit captioned as OFELIA ALVAREZ and SILVIA
ALVAREZ, Individually, and on behalf of themselves and other
similarly situated current and former employees, v. DAHER CLEANING
SERVICES OF TENNESSEE COMPANY, a Tennessee Corporation, MARA
DAHER-BOYER, individually, and SIEGFRIED A. RICHTER, JR.,
individually, Case No. 3:21-cv-00479 (M.D. Tenn.), the Plaintiffs
ask the Court to enter an order:
1. conditionally certifying a class of:
"similarly situated current and former hourly-paid
cleaning employees of Defendants Daher Cleaning Services
of Tennessee Company, Mara Daher-Boyer, and Seigfried A.
Richter, Jr.";
2. authorizing Court-supervised notice, in accordance with
Section 216(b) of the Fair Labor Standards Act (FLSA), 29
U.S.C. section 216(b).
3. directing the Defendants to immediately provide
Plaintiffs' counsel a computer-readable file containing
the names (last names first), last known physical
addresses, last known email addresses, social security
numbers, dates of employment, and last known telephone
numbers of all putative class members during the last
three years;
4. providing that Court-approved notice be enclosed with all
of Defendants' currently employed putative class members'
next regularly-scheduled paycheck/stub and be mailed and
emailed to Defendants' putative class members so that they
can assert their claims on a timely basis as part of this
litigation;
5. tolling the statute of limitations for the putative class
as of the date this Motion is fully briefed; and
6. requiring that the Opt-in Plaintiffs' Consent to Join
Forms be deemed "filed" on the date they are postmarked.
A copy of the Plaintiffs' motion to certify class dated Nov. 5,
2021 is available from PacerMonitor.com at https://bit.ly/3kvV3iy
at no extra charge.[CC]
The Plaintiffs are represented by:
Robert E. Turner, IV, Esq.
Gordon E. Jackson, Esq.
J. Russ Bryant, Esq.
Robert E. Morelli, III, Esq.
JACKSON, SHIELDS, YEISER, HOLT,
OWEN & BRYANT
262 German Oak Drive
Memphis, TN 38018
Telephone: (901) 754-8001
Facsimile: (901) 754-8524
E-maiL: gjackson@jsyc.com
rbryant@jsyc.com
rturner@jsyc.com
rmorelli@jsyc.com
- and -
Marc A. Walwyn, Esq.
LAW OFFICE OF MARC WALWYN
412 Georgia Ave. Ste. 102
Chattanooga, TN 37403
Telephone: (423) 954-7266
Facsimile: (423) 763-1615
E-mail: marc@walwynlegal.com
The Defendants are represented by:
Mark Freeman, Esq.
FREEMAN & FUSON
2126 21 st Avenue South
Nashville, TN 37212
Telephone: (615) 298-7272
Facsimile: (615) 298-7274
E-mail: Mark@freemanfuson.com
DBI SERVICES: Faces Allen Suit Over Alleged WARN Act Violation
--------------------------------------------------------------
ROGER ALLEN, individually and on behalf of all others similarly
situated, Plaintiff v. DBI SERVICES, LLC; and STERLING PARTNERS
EQUITY ADVISORS LLC, Defendants, Case No. 1:21-cv-01511-UNA (D.
Del., Oct. 26, 2021) is a class action for the recovery by the
Plaintiff and the class for damages in the amount of 60 days' pay
and ERISA benefits by reason of Defendants' violation of the
Plaintiff's rights under the Worker Adjustment and Retraining
Notification Act of 1988 (the "WARN Act").
According to the complaint, although the Plaintiff and the class
were nominally employed by the Defendant, DBI Services, pursuant to
the WARN Act's single employer rule, Sterling Partners was also the
Plaintiff's and the class "Employer" until they were terminated as
part of, or as a result of a mass layoff and plant closing ordered
by the Defendants on or about October 22, 2021.
The Defendants allegedly violated the WARN Act by failing to give
the Plaintiff and the class at least 60 days' advance written
notice of termination, as required by the WARN Act. As a
consequence, the Plaintiff and the class are entitled under the
WARN Act to recover from the Defendants their wages and ERISA
benefits for 60 days, none of which has been paid.
DBI Services, LLC operates as an asset management and
infrastructure services company. The Company offers snow and ice
removal, roadway management, high friction surface treatment,
consulting, guardrail installation, maintenance, repair, and other
related services. [BN]
The Plaintiff is represented by:
Sally E. Veghte, Esq.
Charles A. Ercole, Esq.
KLEHR HARRISON HARVEY
BRANZBURG LLP
919 Market Street, Suite 1000
Wilmington, DE 19801
Telephone: (302) 552-5503
Facsimile: (302) 426-9193
Email: sveghte@klehr.com; cercole@klehr.com
-and-
Stuart J. Miller, Esq.
Johnathan Miller, Esq.
LANKENAU & MILLER, LLP
100 Church Street, 8th FL
New York, NY 10007
Telephone: (212) 581-5005
Facsimile: (212) 581-2122
-and-
Mary E. Olsen, Esq.
M. Vance McCrary, Esq.
THE GARDNER FIRM, P.C.
182 St. Francis Street Suite 103
Mobile, AL 36602
Telephone: (251) 433-8100
Facsimile: (251) 433-8181
DELAWARE NORTH: Cyiark Labor Code Suit Removed to C.D. California
-----------------------------------------------------------------
The case styled DEJONE CYIARK, individually and on behalf of all
others similarly situated v. DELAWARE NORTH COMPANIES, INC.;
DELAWARE NORTH COMPANIES SPORTSSERVICE, INC.; and DOES 1 through
10, Case No. 21STCV34608, 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 November
5, 2021.
The Clerk of Court for the Central District of California assigned
Case No. 2:21-cv-08761 to the proceeding.
The case arises from the Defendants' alleged violations of the
California Labor Code and the California's Business and Professions
Code including failure to pay all wages, missed/late meal breaks,
missed/late rest breaks, failure to furnish an accurate itemized
wage statement upon payment of wages, failure to reimburse
expenses, and unfair business practices.
Delaware North Companies, Inc. is a global food service and
hospitality company headquartered in Buffalo, New York.
Delaware North Companies Sportservice, Inc. is a food service and
hospitality company headquartered in Buffalo, New York. [BN]
The Defendants are represented by:
Jon D. Meer, Esq.
Jonathan L. Brophy, Esq.
Romtin Parvaresh, Esq.
Sofya Perelshteyn, Esq.
SEYFARTH SHAW LLP
2029 Century Park East, Suite 3500
Los Angeles, CA 90067-3021
Telephone: (310) 277-7200
Facsimile: (310) 201-5219
E-mail: jmeer@seyfarth.com
jbrophy@seyfarth.com
rparvaresh@seyfarth.com
sperelshteyn@seyfarth.com
DELAWARE, OH: Court Modifies Scheduling Order in Seattle House Suit
-------------------------------------------------------------------
In the class action lawsuit captioned as SEATTLE HOUSE LLC,
individually and on behalf of all others similarly situated, CITY
OF DELAWARE, OHIO, Case No. 2:20-cv-03284-EAS-CMV (S.D. Ohio), the
Hon. Judge Chelsey M. Vascura entered an order granting the
Parties' joint motion to modify case scheduling order as follows:
-- Completion of Discovery Related to Class Allegations
December 3, 2021;
-- Deadline to Amend Pleadings or Join Additional Parties
December 3, 2021; and
-- Motion for Class Certification Due January 7, 2022.
A copy of the Court's order dated Nov. 4, 2021 is available from
PacerMonitor.com at https://bit.ly/3wzjDns at no extra charge.[CC]
DIGNITY CARE: Ahram FLSA Class Suit Removed to D. Colorado
----------------------------------------------------------
The case styled DANYA AHRAM, AARON RODRIGUEZ, and MEGAN FACEY, on
behalf of themselves and all others similarly situated v. DIGNITY
CARE, LLC, and MARY KIRK, Case No. 2021CV30753, was removed from
the District Court for the County of Boulder, State of Colorado, to
the U.S. District Court for the District of Colorado on November 5,
2021.
The Clerk of Court for the District of Colorado assigned Case No.
1:21-cv-02990-LTB to the proceeding.
The case arises from the Defendants' alleged violations of the Fair
Labor Standards Act and the Colorado Minimum Wages of Workers Act.
Dignity Care, LLC is a home health care service provider in
Boulder, Colorado. [BN]
The Defendants are represented by:
John-Paul C. Sauer, Esq.
Lukasz Gilewski, Esq.
Sydney B. Galligan, Esq.
GOODSPEED MERRILL
7800 E. Union Ave, Suite 600
Denver, CO 80237
Telephone: (720) 473-7644
Facsimile: (720) 473-7647
E-mail: jsauer@goodspeedmerrill.com
lgilewski@goodspeedmerrill.com
sgalligan@goodspeedmerrill.com
DOM MUSIC BOX: Saavedra Seeks Unpaid Overtime Pay, Payslips
-----------------------------------------------------------
Juan Sebastian Diaz Saavedra, individually and on behalf of others
similarly situated, Plaintiff, v. Dom Music Box Inc. and Edison
Ortiz, Defendants, Case No. 21-cv-06051 (E.D. N.Y., October 29,
2021), seeks to recover unpaid minimum and overtime wages and
spread-of-hours pay pursuant to the Fair Labor Standards Act of
1938 and New York Labor Law, including applicable liquidated
damages, interest, attorneys' fees and costs.
Defendants own, operate, or control a bar, located in Jackson
Heights, NY under the name "Music Box" where Saavedra worked as a
bartender. He claims to have generally worked in excess of 40 hours
a week without overtime for hours in excess of 40 hours per
workweek and denied spread-of-hours premium for workdays exceeding
10 hours. He also claim to have never received wage statements and
appropriate minimum wage. [BN]
Plaintiff is represented by:
Michael Faillace, Esq.
MICHAEL FAILLACE & ASSOCIATES, P.C.
60 East 42nd Street, Suite 4510
New York, NY 10165
Tel: (212) 317-1200
Facsimile: (212) 317-1620
Email: michael@faillacelaw.com
DUKE UNIVERSITY: Settlement Check Distribution Reflects Inequity
----------------------------------------------------------------
Rajee Ganesan and Josiah Townsend, writing for The Daily Tar Heel,
report that ask your professors if they've received their
restitution checks from Duke yet. Chances are, they might have.
In August, a federal judge approved a $19 million settlement
between thousands of faculty members at UNC and Duke to resolve a
class-action lawsuit asserting that the two universities colluded
not to steal faculty from each other.
The $19 million settlement will serve as an extension to a $54.5
million settlement that was paid to medical faculty at the two
schools.
The exorbitant amount of money being doled out is reflective of two
major R1 universities finally being held accountable for their
actions.
Since UNC and Duke are so close in proximity, the universities are
naturally appealing employment opportunities for opposing faculty.
If a faculty member at one university takes a job at the other,
they don't have to uproot their entire lives -- the other
university may be the only place a faculty member can transition to
without moving homes or pulling children out of school districts.
Duke and UNC allegedly held a "no-poach understanding" that reached
back decades. Essentially, each university promised not to steal
professors and faculty members from the other.
Any such agreement would prevent faculty members from leveraging a
promotion or salary increase at the other university.
This agreement violates state and federal antitrust laws. The
lawsuit originated in 2015 after a Duke radiologist, Dr. Danielle
Seaman, allegedly learned of the agreement after she was turned
down for a job at UNC Health. This led to the class-action lawsuit:
Seaman v. Duke University.
Duke settled the lawsuit, with the university not having to admit
wrongdoing. However, Duke and the Duke Health System agreed to pay
a $54.5 million settlement, which covered around 5,500 faculty
physicians at both medical schools, working out to be around
$10,000 per person.
During Seaman's case, further evidence surfaced demonstrating the
"no-poach understanding" extended beyond the university health
systems. Lucia Binotti, a UNC Spanish professor, filed another
lawsuit extending to non-medical faculty that were not covered by
the first lawsuit. In her lawsuit, she named Duke as the sole
defendant, but also listed UNC as an "unnamed co-conspirator."
The $19 million settlement in Binotti's lawsuit covers non-medical
faculty at the two schools between Oct. 1, 2001 and Feb. 5, 2018.
According to court documents, over 15,700 current and former
faculty members at Duke and UNC are eligible for the latest round
of payments.
Binotti told The Daily Tar Heel that the payments are a "token of
recognition."
"But in terms of going forward, it's actually quite major because
that means free competition and the possibility of being hired for
a higher salary or being retained at UNC for a higher salary are
now just like it should be -- a free market," she said. "So, in
that sense, it's a great advancement of workers' rights for all of
us who were at UNC for all those years in which the no-poaching
agreement was in place."
Altha Cravey, a recently retired UNC professor, echoed support in
an email statement to the DTH.
"It's great to see attorneys willing to do class-action lawsuits,"
Cravey said. "And it's excellent to see these two huge institutions
on notice that they cannot do whatever they want, whenever they
want."
Still, neither Duke nor UNC-Chapel Hill admitted any wrongdoing in
the settlements of either lawsuit. UNC Media Relations stated that
UNC was not a party in Binotti's settlement and declined to comment
further.
In Seaman v. Duke University, UNC was part of the settlement
because of its role as an actor of the state government. However,
the University settled the lawsuit in January 2018 without paying
any compensation or admitting wrongdoing. UNC did agree to enter a
no-hire agreement, where it cannot engage in illegal no-hire
agreements in the future.
However, how the hefty fines being distributed tell us a different
story.
Regular faculty members will receive an average of $2,341.19 in
compensation, while other faculty positions, such as adjunct or
visiting professors, will receive an average of $152.54.
The discrepancies in how much faculty were paid based on their tier
brings into question the inequities in faculty hierarchy at UNC and
across higher education.
Eric Ensley, a former graduate student and research assistant at
UNC, was paid a mere $2.68 for a year of his work.
"(It's) an insulting amount, particularly given the long-term
damage done by the collusion of the two universities' whose
endowments comprise billions of dollars," he said in an email
statement to the DTH. "The settlement amount was a slap on the
wrist to the universities who seem to have committed not only
breaches of civil law, but possibly also criminal law."
Generally, Ensley said, graduate students at UNC are generally
already paid unfairly.
"Graduate student instructors at UNC make, I believe, less than
$16,000 a year, which is only a few hundred dollars over a poverty
wage -- which most realize the University does intentionally," he
said. "Handing them a check that won't even pay for a fast food
meal denigrates their labor and reminds me how unfriendly and
unappreciated UNC is of student and adjunct labor."
The little amounts that graduate and contingent faculty have been
receiving in wake of the massive lawsuit settlement has shown how
the University fails to support their workers, even as an R1
institution.
Binotti said that she hears about a lack of financial transparency
from faculty and students -- something that her settlement might
alleviate.
"I really think that this (settlement) contributes to make some of
the things that go on at the faculty and administrative levels more
visible and more transparent," Binotti said.
And the lack of financial transparency has not only hurt members of
the current UNC community, but also discourages incoming
applicants, both for undergraduate and graduate programs.
"I think current students should be angry as with each passing
year, UNC seems to add another scandal that discredits the
University and hurts the long-term prestige of the degrees they
will receive," Ensley said.
"In terms of graduate education, I often advise undergraduates that
UNC has many wonderful programs from an academic standpoint, but
they should consider other institutions if they aren't
independently wealthy or with other means to support the bare
necessities of living -- or at the very least look closely at the
economic realities of trying to live on small amounts such as these
for six or more years." [GN]
EARGO INC: Wolf Haldenstein Reminds of December 6 Deadline
----------------------------------------------------------
Wolf Haldenstein Adler Freeman & Herz LLP on Nov. 1 disclosed that
a federal securities class action lawsuit has been filed against
Eargo, Inc. in the United States District Court for the Northern
District of California on behalf of those who purchased Eargo, Inc.
securities between February 25, 2021 and September 22, 2021, both
dates inclusive (the "Class Period").
All investors who purchased Eargo, 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 Eargo, Inc., you may,
no later than December 6, 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
Eargo, Inc.
On August 12, 2021, after the market closed, Eargo revealed that
claims submitted to the Company's largest third-party payor, which
accounted for 80% of Eargo's accounts receivable, had not been paid
since March 1, 2021.
On this news, the Company's share price fell $8.00, or over 24%, to
close at $24.70 per share on August 13, 2021, on unusually heavy
trading volume.
On September 22, 2021, after the market closed, Eargo revealed that
"it is the target of a criminal investigation by the U.S.
Department of Justice (the 'DOJ') related to insurance
reimbursement claims the Company has submitted on behalf of
customers covered by federal employee health plans." Moreover, the
DOJ is the "principal contact related to the subject matter of the
[ongoing] audit" of Eargo by an insurance company that is the
Company's largest third-party payor. As a result of the foregoing,
Eargo withdrew its full year financial guidance.
On this news, the Company's share price fell $14.81, or over 68%,
to close at $6.86 per share on September 23, 2021, on unusually
heavy trading volume.
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
Contact Information:
Email: gstone@whafh.com, donovan@whafh.com or classmember@whafh.com
Tel: (800) 575-0735 or (212) 545-4774 [GN]
EAST COAST RESTORATION: Settlement Order in Helwing Suit Affirmed
-----------------------------------------------------------------
The United States Court of Appeals for the Second Circuit affirms
the order and judgment of the district court issued in the lawsuit
styled TOMASZ HELWING, Plaintiff-Appellant v. DARIUSZ MICHALOW,
SEBASTIAN TKACZYK, WILLIAM GONZALEZ, for themselves and others
similarly situated who were employed by East Coast Restoration &
Consulting Corp., Midtown Restoration, Inc., East Coast
Installation & Consulting Corp., East Coast Restoration &
Construction Consulting Corp., Plaintiffs-Appellees, EAST COAST
RESTORATION & CONSULTING CORP., et al., Defendants-Appellees, Case
No. 20-3453 (2d Cir.).
Appellant Tomasz Helwing, proceeding pro se, appeals the district
court's order and judgment approving a settlement in this Fair
Labor Standards Act collective action and New York Labor Law class
action. The Court of Appeals assumes the parties' familiarity with
the underlying facts, the procedural history of the case, and the
issues on appeal.
Review of the record and relevant case law reveals no error in the
district court's decision to approve the settlement, the Court of
Appeals notes. The Court of Appeals affirms for substantially the
reasons stated by the district court on the record at the fairness
hearing.
The Court of Appeals says it considered all of Helwing's arguments
and finds them to be without merit. Helwing failed to present
admissible evidence that any of the parties to the settlement, or
their attorneys, violated the Racketeer Influenced and Corrupt
Organizations Act or otherwise engaged in unethical conduct.
Additionally, the Older Workers Benefit Protection Act does not
apply to this case, and Helwing has not demonstrated that the
settlement should have been rejected for any other reason.
Accordingly, the Court of Appeals affirms the judgment of the
district court.
A full-text copy of the Court's Summary Order dated Oct. 28, 2021,
is available at https://tinyurl.com/cyfway4v from Leagle.com.
Plaintiff-Appellant Tomasz Helwing, in Howard Beach, New York,
appears pro se.
LaDonna M. Lusher -- llusher@vandallp.com -- Jenny S. Brejt,
Virginia & Ambinder, LLP, in New York City, for the
Plaintiffs-Appellees.
Michael M. Rabinowitz -- mwitz@optonline.net -- Rabinowitz &
Galina, in Mineola, New York; James A. Randazzo, Drew W. Sumner,
Portale Randazzo LLP, in White Plains, New York, for the
Defendants-Appellees.
EASTERN ENERGY: Misclassifies Operators, Gibson Suit Claims
-----------------------------------------------------------
RANDALL GIBSON, individually and on behalf of all others similarly
situated, Plaintiff v. EASTERN ENERGY SERVICES, INC., Defendant,
Case No. 6:21-cv-00417-JCB (E.D. Tex., October 22, 2021) brings
this complaint to recover unpaid overtime wages and other damages
against the Defendant pursuant to the Fair Labor Standards Act.
The Plaintiff, who was employed by the Defendant as an operator,
asserts that throughout his employment with the Defendant, he and
other similarly situated employees were improperly classified as
exempt from overtime requirements. Despite regularly working more
than 40 hours per workweek, the Defendant allegedly did not pay
them overtime compensation at the rate of one and one-half times
their regular rate of pay for all hours worked in excess of 40 per
workweek.
The Plaintiff brings this complaint as a collective action for
himself and for other similarly situated employees to recover
unpaid back wages from the Defendant for liquidated damages due to
them, as well as attorneys' fees, costs, pre- and post-judgment
interest, and other relief as may be necessary and appropriate.
Eastern Energy Services, Inc. is an oilfield services company that
provided services throughout the U.S. [BN]
The Plaintiff is represented by:
Michael A. Josephson, Esq.
Andrew W. Dunlap, Esq.
JOSEPHSON DUNLAP LLP
11 Greenway Plaza, Suite 3050
Houston, TX 77005
Tel: (713) 352-1100
Fax: (713) 352-3300
E-mail: mjosephson@mybackwages.com
adunlap@mybackwages.com
- and –
Richard J. (Rex) Burch, Esq.
BRUCKNER BURCH PLLC
11 Greenway Plaza, Suite 3025
Houston, TX 77046
Tel: (713) 877-8788
Fax: (713) 877-8065
E-mail: rburch@brucknerburch.com
ELKHART PRODUCTS: Wins Bid to Decertify McCoy as Collective Action
------------------------------------------------------------------
The U.S. District Court for the Western District of Arkansas,
Fayetteville Division, grants the Defendant's motion to decertify
the conditionally certified collective action styled SHEILA McCOY,
Individually and on behalf of all others similarly situated,
Plaintiff v. ELKHART PRODUCTS CORPORATION, Defendant, Case No.
5:20-CV-05176 (W.D. Ark.).
Background
The Plaintiff filed the action on Oct. 1, 2020, as a prospective
class and collective action alleging she and other similarly
situated employees were subject to a common policy of "shaving
hours" by the Defendant in violation of the Fair Labor Standards
Act, 29 U.S.C. Section 201, et seq. ("FLSA") and the Arkansas
Minimum Wage Act, Ark. Code Ann. Section 11-4-201, et seq.
("AMWA").
On Feb. 11, 2021, the Court conditionally certified a collective
action under 29 U.S.C. Section 216(b) and authorized the issuance
of notice and a consent to join form to potential opt-in
plaintiffs. Following conditional certification, notice of the
lawsuit was sent to 341 potential opt-in plaintiffs and 73 filed
consents to join. During discovery, 7 opt-in plaintiffs opted out,
leaving 66 opt-in plaintiffs remaining. Depositions of a sampling
of opt-in plaintiffs revealed their grievances do not support a
finding that they are similarly situated; some Plaintiffs seek
compensation for time spent donning and doffing uniforms, others
seek compensation for unpaid overtime, and still others admit they
have no claims against the Defendant.
On Aug. 18, 2021, the Defendant filed the instant to motion to
decertify the collective action arguing the Plaintiffs are not
similarly situated. On Sept. 14, 2021, the Plaintiff filed a
response agreeing the collective action should be decertified but
requesting that 43 of the opt-in plaintiffs be made named
plaintiffs. The Plaintiff did not clarify why the 23 remaining
opt-in plaintiffs should be dismissed from the action entirely, and
no facts were set forth to distinguish this group from the 43
proposed named plaintiffs.
Analysis
Under Federal Rule of Civil Procedure 20(a)(1), multiple plaintiffs
may be joined in a single action if (1) they assert claims with
respect to or arising out of the same transaction, occurrence, or
series of transactions or occurrences, and (2) any question of law
or fact common to all plaintiffs will arise in the action. This
standard is equivalent to the standard for joinder of opt-in
plaintiffs under the FLSA.
The Plaintiff agrees the collective action should be decertified
"so that certain Plaintiffs should be permitted to proceed with
their claims on an individual basis, and others removed from the
case." She proposes that 23 of the opt-in plaintiffs be dismissed
from the action, which the Court interprets as a concession that
these opt-in plaintiffs are not sufficiently similarly situated to
be properly joined. The Plaintiff proposes that the remaining 43
opt-in plaintiffs be added as named plaintiffs in the action
("Proposed Named Plaintiffs"), but she has put forth no evidence of
how the claims of the 43 Proposed Named Plaintiffs differ from the
23 Dismissed Plaintiffs.
The Plaintiff argues the Proposed Named Plaintiffs and Plaintiff
McCoy are similarly situated because: (1) all worked for Defendant;
(2) all were scheduled to work fixed shifts; (3) all were paid on
an hourly basis; and (4) Defendant maintained records of clock-in
and clock-out time of the employees.
District Judge P.K. Holmes, III, notes that these may be similar
factual circumstances, but the Plaintiff provides no facts from
which the Court can determine the claims of the Proposed Named
Plaintiffs are sufficiently similar that they may properly be
joined pursuant to Rule 20(a)(1) or 29 U.S.C. Section 216(b).
To the contrary, the Defendant has put forth ample evidence which
demonstrates that the Proposed Named Plaintiffs have widely varying
claims which cannot be said to "arise out of the same transaction
or occurrence." For example, while some Proposed Named Plaintiffs
claim they should be paid for time spent donning and doffing
uniforms, others claim they were not paid overtime wages. Because
the Proposed Named Plaintiffs are not similarly situated, the
collective action will be decertified, and because the standard for
FLSA opt-in joinder is the same as Rule 20(a)(1), the Proposed
Named Plaintiffs may not be joined under Rule 20(a)(1).
Conclusion
It is, therefore, ordered that the Defendant's motion to decertify
collective action is granted and the action is decertified as a
collective action. This matter will proceed only on the individual
claims of Plaintiff Shelia McCoy.
It is further ordered that the claims of the 66 opt-in plaintiffs
are dismissed without prejudice. The statute of limitations on all
claims against the Defendant is tolled for each of these
individuals for the period between the filing of their consents to
join and the date of this Order.
It is further ordered that the parties file an updated Rule 26(f)
report proposing deadlines for the litigation of the Plaintiff's
individual claims.
A full-text copy of the Court's Opinion and Order dated Oct. 28,
2021, is available at https://tinyurl.com/7r2azsbb from
Leagle.com.
EQUITYEXPERTS.ORG: Waldrep Sues Over Fraudulent Collection Scheme
-----------------------------------------------------------------
Brent Waldrep, individually and on behalf of similarly situated
persons v. EQUITYEXPERTS.ORG, LLC, Case No. 2:21-cv-12590-MAG-KGA
(E.D. Mich., Nov. 4, 2021), is brought alleging a high pressure,
rapidly increasing collection fees, fraudulent, collection scheme
engaged in by the Defendant whom collected from the Plaintiff and
the putative class members: (a) collection fees that are not
permitted under the governing bylaws as they are not actual
attorney's fees "incurred" or costs of collection "incurred" by the
association; (b) alternatively, the Defendant's collection fees are
excessive.
The complaint alleges that the Defendant's business model thrives
upon the greed and laziness of the property managers whom the
Defendant engages to allow the Defendant to take over the property
managers' collections activities, charge the collection fees that
the Defendant's thinks it can get away with, and in exchange the
Defendant gives those property managers as a "kick back", the
principal amount of the association's debt it collects from the
unit owner, monies that the unit owner was to have paid the
property manager directly as annual dues or fines.
The Defendant's initial March 10, 2021 collection letter added a
collection fee of $270 to the principal amount of the alleged debt,
followed by an April 30, 2021 letter indicating that a collection
fee of $350 was added to the balance being sought by the Defendant
and contained the statement that, "Your case has not been referred
to an attorney and legal proceedings have not been started at this
time, but we intend to do so if the debt is not paid", followed by
three more letters, and a letter on June 3, 2021, another letter
stating, "If you do not call and either pay the debt or agree to a
payment plan within seven (7) days, we will escalate your file to
our Post Outreach Lien Enforcement process. If we escalate your
file, an additional $650.00 collection fee will be added to your
account."
In just 90 days, the Defendant's collection fees it claims it can
collect from the Plaintiff directly totaled $1,270. The underlying
principal debt in this case involves a disputed legal fee of
$300.00 that PARAMOUNT itself incurred with and paid to Makower
Abbate Guerra Wegner Vollmer, on or around December 2019, not
related to any enforcement action against the Plaintiff to,
"enforce any of the restrictions or rules and regulations may be
assessed to and collected from the responsible Co-owner", but
related to advice regarding a 1 foot by 4 foot sign, a similar sign
the Plaintiff had permission from the PARAMOUNT in the past to post
and a sign the Plaintiff believed under PARAMOUNT's Rules and
Regulation, May 2011 Revised Article VI-10 Signs-Yard Signs, the
Plaintiff could post for a one-time event was "permitted without
approval", and for speaking with the Plaintiff's legal counsel, Ms.
Hughes.
After the Plaintiff and his other legal counsel, Ms. Sexton, on the
Plaintiff's behalf, attempts disputing the alleged debt the
Defendant was attempting to collect from the Plaintiff, including
the Defendant's claimed collection fees and collection fees added
after the June 3, 2021 letter, were unsuccessful, the Plaintiff
felt he had no alternative, and under duress, to pay the Defendant
all the moneys the Defendant demanded in order to buy the Plaintiff
peace of mind, avoid having to pay more collection fees that the
Defendant indicated would be forthcoming, and to avoid any
potential legal proceeding from being initiated, which could cause
the Plaintiff reputational damage. On June 21, 2021, the Defendant
caused the Plaintiff's credit card to be charged $1,921.14 for
payment of the disputed debt and the Defendant's collection fees,
says the complaint.
The Plaintiff is a natural person residing in Oakland County,
Michigan.
The Defendant is a limited liability company organized under the
law of Michigan.[BN]
The Plaintiff is represented by:
Rachel M. Sexton, Esq.
SEXTON LAW PLC
30550 Gratiot Ave., Unit 66157
Phone: (734) 323-6951
Email: rachel@sextonlawmi.com
- and -
Curtis C. Warner, Esq.
5 E. Market St. Ste. 250
Corning, NY 14830
Phone: (888) 551-8685
Email: cwarner@warner.legal
ESKINA 214: FLSA Collective Conditionally Certified in Ortiz Suit
-----------------------------------------------------------------
In the class action lawsuit captioned as RICARDO ORTIZ, HENRY
FLORES, AND MARIO FLORES, on behalf of themselves and all others
similarly situated, v. ESKINA 214 CORP. d/b/a CAFE TABACO & RON,
ISMAEL GARCIA, AND WILLIAM SEGURA, Case No. 1:21-cv-01537-ALC-KHP
(S.D.N.Y.), the Hon. Judge Katharine H. Parker entered an order
granting in part and denying in part Plaintiffs' motion for
conditional certification of their Fair Labor Standards Act (FLSA)
claims:
-- The Court conditionally certifies a collective of
potential plaintiffs who were employed as non-managerial
at any time between February 19, 2018 and the present.
-- Within 30 days of this Order, Defendants shall produce the
following information for all non-managerial employees
employed by them at any time from February 19, 2018 to the
present: names, titles, date of employment, last known
mailing addresses, email addresses, and phone numbers.
-- Within 14 days of this Order, the Plaintiffs shall submit
a revised proposed form of notice consistent with this
order to the court for approval.
The Defendants currently own and operate a restaurant called Cafe
Tabaco located at 501 West 214 th Street in New York City.
The Plaintiffs claim that Defendants violated the FLSA, and the New
York Labor Law (NYLL), by failing to pay them and other
non-managerial employees all wages due, including overtime, failing
to pay their wages within the statutorily prescribed period, and
failing to comply with other requirements of the NYLL.
They define the putative collective as "all non-exempt employees,
(including but not limited to delivery persons, waiters, servers,
hosts, bartenders, barbacks, bouncers, porters, runners, busboys,
food preparers, chefs, cooks, and dishwashers) employed by
Defendants on or after the date that is six years before the filing
of the Complaint."
A copy of the Court's order dated Nov. 2, 2021 is available from
PacerMonitor.com at https://bit.ly/3kjGzCc at no extra charge.[CC]
EUROFINS SCIENTIFIC: Lopez Sues Over Unpaid Minimum, Overtime Wages
-------------------------------------------------------------------
Rito Lopez, on behalf of himself and the putative Class members v.
EUROFINS SCIENTIFIC, INC, and DOES 1-100, inclusive, Case No.
3:21-cv-08652 (N.D. Cal., Nov. 5, 2021), is brought against the
Defendant for violations of California wage and hour laws, stemming
from the Defendant's policies and practices of: failing to
compensate the Plaintiff for all hours worked; failing to pay the
Plaintiff minimum wage for all hours worked; failing to pay the
Plaintiff overtime wages; failing to provide the Plaintiff true and
accurate itemized wage statements; and engaging in unfair business
practices.
Although the Plaintiff's shifts may vary in length, the Plaintiff
usually worked 8 hours or more per shift, 5 shifts per week. The
Plaintiff works 40 hours per week, or more. The Defendant routinely
requires the Plaintiff to perform substantial work off-the-clock
and without compensation. In addition, the Defendant requires the
Plaintiff to wait in line in order to clock back in upon returning
from their meal breaks. The Plaintiff spends at least two
additional minutes waiting in line after their meal breaks to clock
back in for their afternoon shift. This time spent in line also
goes unrecorded and therefore uncompensated. As a result of these
policies and/or practices, the Plaintiff and putative Class members
are denied compensation for all hours worked, including minimum
wages and overtime, which they are lawfully owed resulting from the
additional off-the-clock work in excess of 8 hours per day and 40
hours per week, says the complaint.
The Plaintiff is currently employed by Defendant for various
projects as a packer.
Eurofins provides a range of analytical testing services to clients
across multiple industries. Eurofins is one of the global leaders
in food, environmental, pharmaceutical, and cosmetic products
testing and in AgroSciences Contract Research Organization
services.[BN]
The Plaintiff is represented by:
Carolyn H. Cottrell, Esq.
Caroline N. Cohen, Esq.
Philippe M. Gaudard, Esq.
SCHNEIDER WALLACE COTTRELL KONECKY LLP
2000 Powell Street, Suite 1400
Emeryville, CA 94608
Phone: (415) 421-7100
Facsimile: (415) 421-7105
Email: ccottrell@schneiderwallace.com
ccohen@schneiderwallace.com
pgaudard@schneiderwallace.com
EVENTBRITE INC: Terminates Settlement Agreement in IPO Suit
-----------------------------------------------------------
Eventbrite, Inc. said in its Form 10-Q Report filed with the
Securities and Exchange Commission on October 28, 2021, for the
quarterly period ended September 30, 2021, that the company gave
notice to the lead plaintiff in a Federal action that, in light of
the denial of the preliminary approval motion, it was terminating
the settlement agreement.
Beginning on April 15, 2019, purported stockholders of the Company
filed two putative securities class action complaints in the United
States District Court for the Northern District of California, and
three putative securities class action complaints in the Superior
Court of California for the County of San Mateo, against the
Company, certain of its executives and directors, and its
underwriters for the Company's initial public offering (IPO).
Some of these actions also name as defendants venture capital firms
that were investors in the Company as of the IPO.
On August 22, 2019, the federal court consolidated the two pending
actions (the Federal Action). On October 11, 2019, the lead
plaintiffs in the Federal Action filed an amended consolidated
complaint.
That complaint alleged that the Company misrepresented and/or
omitted material information in its IPO offering documents in
violation of the Securities Act. It also challenged public
statements made after the IPO in violation of the Exchange Act.
The amended complaint sought unspecified monetary damages and other
relief on behalf of investors.
On December 11, 2019, the defendants filed a motion to dismiss the
amended complaint. On April 28, 2020, the court granted defendants'
motion to dismiss in its entirety with leave to amend and set a
deadline of June 24, 2020 for lead plaintiff to file its second
amended consolidated complaint.
On June 22, 2020, the Court extended lead plaintiff's deadline to
file its second amended consolidated complaint to August 10, 2020.
On July 29, 2020, the Company entered into a settlement agreement
with the lead plaintiff in the Federal Action.
On August 27, 2020, the lead plaintiff in the Federal Action filed
a motion for preliminary approval of the settlement.
On October 21, 2020, the Court vacated the preliminary approval
hearing, and on October 30, 2020, the Court issued an order
continuing the preliminary approval hearing, tentatively
rescheduling the hearing for March 18, 2021.
On January 22, 2021, the Court issued an order denying without
prejudice the motion for preliminary approval.
On February 9, 2021, the Company gave notice to the lead plaintiff
that, in light of the denial of the preliminary approval motion, it
was terminating the settlement agreement.
No further updates were provided in the Company's SEC report.
Eventbrite, Inc., incorporated on October 20, 2009, provides a
global platform for live experiences. The Company's platform allows
anyone to create, share, find and attend events. It enables events
ranging from fundraisers, seminars, wellness activities and music
festivals to classes and cultural celebrations all over the world.
The company is based in San Francisco, California.
FACEBOOK INC: Faces Regulatory Problems Amid Class Actions
----------------------------------------------------------
Kari Paul, writing for The Guardian, reports that it's been a rocky
few weeks for the company formerly known as Facebook.
First came the Facebook papers, a series of blockbuster reports in
the Wall Street Journal based on a cache of internal documents
leaked by Frances Haugen, a former employee turned whistleblower.
The dam broke wider after Haugen shared the documents with a wider
consortium of news publications, which have published a slew of
stories outlining how Facebook knew its products were stoking
real-world violence and aggravating mental health problems, but
refused to change them.
Now the regulatory sharks are circling. Haugen recently testified
before US and UK lawmakers, heightening calls to hold the company
to account.
Facebook, meanwhile, appeared to be living in another universe. Its
rebrand to Meta has prompted ridicule and incredulity that a
company charged with eroding the bedrock of global democracy would
venture into a new dimension without apologizing for the havoc it
wreaked on this one.
But what do the Facebook papers actually mean for the future of the
company? Experts are split on whether the damning reports spell
doom for Meta -- or if the trillion-dollar firm is too big to
fail.
Facebook papers fuel calls to rein in the company
The explosive documents from Haugen revealed the extent to which
Facebook knowingly allows toxic policies and business practices,
and have prompted outrage from Congress, human rights groups and
the public.
But while the revelations have renewed calls for legislation,
actually passing it is another story, said Matt Schettenhelm, an
analyst at Bloomberg Intelligence.
"It's easy for lawmakers to haul Facebook into hearings, pound the
table and complain about the company's problems - it's very hard to
pass a law that fixes them," he said.
While consensus has grown that major overhaul is needed, no
meaningful attempts to put a dent in the tech behemoth's massive
empire have been passed.
"In my view, Frances Haugen's testimony will certainly lead to more
hearings and bad headlines," Schettenhelm added. "It could move
Congress closer to consensus in 2022 on some types of legislation,
but probably not on the most disruptive measures."
Several laws under consideration could begin to make a dent. A bill
introduced in October by Senators Amy Klobuchar and Chuck Grassley
would make it illegal for tech firms to engage in
"self-preferencing" - in other words, giving their own products and
services priority on their platforms over those of rivals. Facebook
also faces antitrust lawsuits from a coalition of attorneys general
as well as the Federal Trade Commission, the US agency charged with
maintaining healthy competition and sound business practices in the
markets.
Another bill under discussion would update the Children and Teens'
Online Privacy Protection Act (Coppa) to ban tech companies from
collecting data of users between the ages of 13 and 15 without
explicit consent, and require the firms to delete data if
requested.
A central problem the Facebook papers laid bare is that Facebook
often conducts its own internal research into problems on the
platform, then abandons them. In one damning example, researchers
showed how Instagram has insidious effects on teenage girls,
perpetuating mental health conditions like anorexia, but the
company buried the results and did not change its policies in
response.
A law introduced by House Democrats would address these concerns by
requiring platforms to hand more data over to independent
researchers who would then publish reports on exactly how it is
impacting users.
But these actions do not do enough to address the issues central to
Facebook's massive power, said Evan Greer, the deputy director of
digital rights non-profit Fight for the Future.
"We need lawmakers to actually take this seriously," she said.
"They should be moving forward with a real privacy bill that
strikes at the heart of Facebook's surveillance-driven business
model."
Facebook is also facing a number of potential class-action
lawsuits, both from shareholders claiming it misled them and
inflated the company's share price, and users who claimed their
biometric data was collected without permission.
"Those suits will take years, and Facebook will have a number of
defenses," said Schettenhelm. "Still, the company has to take them
seriously: the damages could reach the billions of dollars."
Will Zuck step down?
At a conference announcing the company's rebrand, CEO Mark
Zuckerberg all but ignored the mounting allegations, videoing in
from his metaverse mansion, riding a fake surf board, and joking
about buying virtual pets with cryptocurrency.
While the dissonance was uncanny, history indicates Zuckerberg is
unlikely to pay for the transgressions.
Calls may be mounting for his resignation, but its not the first
time Zuckerberg has been targeted. In 2019, many investors called
on the CEO to step down as chair of the company following a year of
problems, including the Cambridge Analytica scandal in which
millions of users' data was used to manipulate election results.
Facebook appears to be playing by its usual strategy -- deny and
move on. Its leadership has remained largely silent, dismissing the
Facebook papers as a "coordinated effort" to discredit the company,
and sending a lower-level executive to testify before the US
Congress about the platforms' effects on children.
But even if the company is unlikely to hold itself accountable,
it's clear Facebook may be facing more aggressive pushback in the
court of public opinion.
It has admitted in recent earnings reports it is losing teenage
users in droves. Advertisers have boycotted it in the past.
Meanwhile, some users are saying they plan to quit the platform.
And while the company's most recent earnings report indicates the
platform still enjoys a vast user base, the latest revelations may
only hasten a turning of the tide.
As the potential legal ramifications of the papers play out,
advocates say harm to the global community is now irrefutable. They
warn the company should not be allowed to simply abscond into the
Metaverse.
"Mark Zuckerberg has made multiple appearances before Congress and
nothing has changed," said Jessica J González, co-CEO of the
non-profit group Free Press Action. "It's time for immediate action
to hold the company accountable for the many harms it's inflicted
on our democracy." [GN]
FCA US: Faces Class Action Over Dodge Rear Differential Issues
--------------------------------------------------------------
David A. Wood, writing for CarComplaints.com, reports that a Dodge
class action lawsuit alleges the rear differentials in 2014-2019
Dodge Challenger and Dodge Charger cars with V8 engines allegedly
cannot handle the horsepower and torque loads produced by the
engines and transmissions.
The class action alleges this causes the rear differential and its
components to prematurely wear out and fail.
The Dodge class action lawsuit was filed by six plaintiffs.
Gustavo Diaz (California): 2015 Dodge SRT Challenger Hellcat
Christian Gibson (Florida): 2018 Dodge Challenger Demon
Joseph Santos (California): 2016 Dodge Charger Hellcat
Gerald Sinclair (Florida): 2016 Dodge Charger Hellcat
Marvin Leon Veal (Florida): 2019 Dodge Charger Hellcat
Domenick Scorziello (New York): 2018 Dodge Challenger Demon
According to the lawsuit, the rear differential is described as a
gear-based component that allows the rear tires to rotate at
different speeds when the car is turning a corner.
The Dodge Challenger and Charger cars, including Charger Hellcats,
Challenger Hellcats and Demons, have the Street & Racing Technology
(SRT) badges because the cars are supposed to be track-ready.
The Dodge class action alleges the rear differentials make howling,
whirling and whining sounds as drivers feel vibrations from the
rear-ends.
Motion to Dismiss the Dodge Class Action Lawsuit
In its motion to dismiss, FCA points out how two plaintiffs never
had any problems with their cars and no plaintiff ever paid for any
rear differential repairs.
And the automaker also argues the plaintiffs never describe how the
rear differentials are supposedly defective.
Additionally, Chrysler says, "there is not a single factual
assertion showing any Plaintiff (or anyone at all) paid for a
repair, sold their vehicle at a loss or that the market generally
reflects a loss of value for Plaintiffs' vehicles."
FCA told the judge a plaintiff must plead facts showing the
automaker knew of the alleged defect before the sale of a vehicle
in order to state any claim based on an alleged omission.
The plaintiffs respond by saying Chrysler must have known based on
"knowledge of alternative designs," consumer complaints, "aggregate
warranty data," "repair orders and parts data," and "several
service bulletins."
But FCA told the judge these allegations aren't good enough because
they are generic and conclusory, especially alleged knowledge based
on technical service bulletins (TSBs).
According to FCA, the TSBs listed in the class action have no
connection to the alleged rear differential defect.
"Although it has never happened to any one of them, Plaintiffs
allege the rear differential 'often explodes' when it fails,
'sending shrapnel into the undercarriage of the vehicle and
damaging ancillary parts.' Plaintiffs also aver vehicles will
'suddenly become inoperable when the [rear] differential fails.'"
-- Fiat Chrysler
But Chrysler argues none of the TSBs have anything to do with
exploding rear differentials or vehicles that aren't operable.
In its motion to dismiss the lawsuit, FCA also alleges the
plaintiffs failed to show their vehicles are unmerchantable, and a
"claim for breach of implied warranty is only viable if Plaintiffs'
vehicles 'did not possess even the most basic degree of fitness for
ordinary use.'"
Moving to fraudulent concealment claims, Chrysler argues the
economic loss doctrine bars fraudulent concealment claims where
there are no allegations of personal injury or property damage
other than to the product itself.
According to the automaker, the alleged damages are economic and
not based on personal injury or property damage.
The plaintiffs also allegedly have no misrepresentation claims
because they allegedly don't identify any specific Chrysler
statements they believe are false. And the plaintiffs allegedly do
not identify any statements made to them that caused them to
purchase the Dodge cars.
According to FCA, the plaintiffs are trying to sue over statements
that are nothing more than "puffery," which is nonactionable.
FCA's motion further alleges all claims from the California
plaintiffs should be dismissed because they are time-barred.
In asking the judge to dismiss all the claims in the Dodge class
action lawsuit, Chrysler says four of the six plaintiffs don't
allege they stopped driving their cars, and the other two
plaintiffs have never even sought any car repairs.
The Dodge class action lawsuit was filed in the U.S. District Court
for the District of Delaware: Diaz, et at., v. FCA US LLC.
The plaintiffs are represented by Berger Montague PC, Capstone Law
APC, and Gordon & Partners, P.A. [GN]
GALENA BIOPHARMA: Feb. 21, 2022 Settlement Fairness Hearing Set
---------------------------------------------------------------
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
IN RE GALENA BIOPHARMA, INC. SECURITIES LITIGATION
SUMMARY NOTICE OF PROPOSED SETTLEMENT
AND FINAL APPROVAL HEARING THEREON
Case No. 2:17-cv-00929-JMV-JBC
TO: ALL PERSONS WHO PURCHASED THE COMMON STOCK OF GALENA BIOPHARMA,
INC. ("GALENA") DURING THE PERIOD November 3, 2014 through November
9, 2015, INCLUSIVE.
YOU ARE HEREBY NOTIFIED, pursuant to an Order of the United States
District Court for the District of New Jersey, that Lead Plaintiffs
in the above-captioned litigation (the "Action") have reached a
proposed settlement with Defendants for $1,600,000.00 in cash, plus
interest earned (the "Settlement").
A hearing will be held on February 21, 2022, at 10:30 a.m., at the
United States District Court for New Jersey, Courtroom PO 03, 50
Walnut Street, Newark, NJ 07102 for the purpose of determining: (1)
whether the Court should certify the Settlement Class for purposes
of the Settlement pursuant to Federal Rule of Civil Procedure 23;
(2) whether the proposed Settlement of $1,600,000.00 in cash, plus
any return thereon, should be approved by the Court as fair, just,
reasonable, and adequate; (3) whether the Action should be
dismissed with prejudice as against Defendants and Defendants'
Released Parties as set forth in the Stipulation and Agreement of
Settlement dated September 13, 2021; (4) whether the Plan of
Allocation is fair, reasonable, and adequate and, therefore, should
be approved; (5) whether the application of Plaintiffs' Counsel for
the payment of attorneys' fees and reimbursement of costs and
expenses incurred in connection with the Action should be approved;
and (6) such other matters as the Court may deem appropriate.
If you purchased Galena's common stock during the period from
November 3, 2014 through November 9, 2015, inclusive, your rights
may be affected by the settlement of the Action. If you would like
to receive a detailed Notice of Proposed Settlement and Final
Approval Hearing (the "Long Notice") and a copy of the Proof of
Claim Form, you may obtain copies by writing to Galena Securities
Settlement, c/o Epiq Class Action & Claims Solutions, Inc., Claims
Administrator, P.O. Box 6578, Portland, OR 97228-6578, or by
calling (855) 867-0739. You may also obtain copies on the internet
at www.GalenaSettlement.com. Complete information concerning the
Action may be obtained from the Court files on this matter.
If you are a member of the Settlement Class, in order to share in
the distribution of the Net Settlement Fund, you must timely submit
a Proof of Claim Form online at www.GalenaSettlement.com or by mail
to the Claims Administrator's address provided above and postmarked
no later than January 20, 2022. If you are a member of the
Settlement Class and do not submit a proper Claim Form, you will
not share in the distribution of the net proceeds of the Settlement
but you will nevertheless be bound by any judgment or orders
entered by the Court.
If you desire to be excluded from the Settlement Class, you must
submit to the Claims Administrator a request for exclusion, at the
address above and postmarked no later than January 31, 2022, in the
manner and form detailed in the Long Notice. If you properly
exclude yourself from the Settlement Class, you will not be bound
by any judgment or orders entered by the Court in the Action and
you will not be eligible to share in the proceeds of the
Settlement.
Any objection to the proposed Settlement, the Plan of Allocation,
and/or Fee and Expense Application must be filed in the manner
detailed in the Long Notice with the Clerk of the Court and
delivered to Lead Counsel for Plaintiffs and Counsel for
Defendants, such that it is received by each party no later January
31, 2022, in accordance with the instructions set forth in the Long
Notice.
PLEASE DO NOT CONTACT THE COURT OR THE CLERK'S OFFICE REGARDING
THIS NOTICE. Any questions should be directed to:
Claims Administrator:
Galena Securities Settlement
c/o Epiq Class Action & Claims Solutions, Inc.
P.O. Box 6578
Portland, OR 97228-6578
Toll Free: 1 (855) 867-0739
www.GalenaSettlement.com
Lead Counsel for Plaintiffs:
William B. Federman
A. Brooke Murphy
FEDERMAN & SHERWOOD
10205 N. Pennsylvania Avenue
Oklahoma City, OK 73120
(405) 235-1560
wbf@federmanlaw.com
abm@federmanlaw.com
DATED: NOVEMBER 1, 2021
BY ORDER OF THE COURT
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY [GN]
GAOTU TECHEDU: Johnson Fistel Reminds of December 20 Deadline
-------------------------------------------------------------
Shareholder rights law firm Johnson Fistel, LLP on Oct. 31
disclosed that a class action lawsuit has commenced on behalf of
investors of Gaotu Techedu Inc. ("GOTU" or the "Company") (NYSE:
GOTU). The class action is on behalf of shareholders who purchased
Gaotu common between March 22, 2021 and March 29, 2021. If you wish
to serve as lead plaintiff in this class action, you must move the
Court no later than December 20, 2021.
What actions may I take at this time? If you suffered a substantial
loss and are interested in learning more about being a lead
plaintiff, please contact Jim Baker (jimb@johnsonfistel.com) by
email or phone at 619-814-4471. If emailing, please include a phone
number. Additionally, you can:
According to the Complaint, Goldman Sachs Group Inc. and Morgan
Stanley sold a large number of GSX shares while in possession of
material non-public information. The defendants knew that Archegos
Capital Management would need to fully liquidate its position in
GSX based on margin call pressures. The defendants avoided billions
in losses by selling the Company's shares while in possession of
this information. When the market learned the truth about GSX,
investors suffered damages.
A lead plaintiff will act on behalf of all other class members in
directing the Gaotu class-action lawsuit. The lead plaintiff can
select a law firm of its choice to litigate the class-action
lawsuit. An investor's ability to share any potential future
recovery of the Gaotu class action lawsuit is not dependent upon
serving as lead plaintiff.
About Johnson Fistel, LLP:
Johnson Fistel, LLP is a nationally recognized shareholder rights
law firm with offices in California, New York and Georgia. The firm
represents individual and institutional investors in shareholder
derivative and securities class action lawsuits. For more
information about the firm and its attorneys, please visit
http://www.johnsonfistel.com.Attorney advertising. Past results do
not guarantee future outcomes.
Contact:
Johnson Fistel, LLP
Jim Baker, 619-814-4471
jimb@johnsonfistel.com [GN]
GATEHOUSE MEDIA: Seeks Denial of Ewalt Class Certification Bid
--------------------------------------------------------------
In the class action lawsuit captioned as JOHN EWALT, on behalf of
himself and all others similarly situated, et al., v. GATEHOUSE
MEDIA OHIO HOLDINGS II, INC., d/b/a THE COLUMBUS DISPATCH, Case No.
2:19-cv-04262-ALM-KAJ (S.D. Ohio), the Defendant asks the Court to
enter an order to deny class certification.
The Defendant moves for an order that certification of any proposed
class would not be appropriate in this case. The
Plaintiffs' claims would require this Court to conduct a highly
specific, fact-intensive inquiry for each of the tens of thousands
of Columbus Dispatch subscribers that comprise Plaintiffs' proposed
classes, the Defendant adds.
Indeed, the Plaintiffs' claims magnify the many differences among
the proposed class members, and those differences predominate over
any common issue and answer. In addition, none of the named
Plaintiffs' claims is typical of the claims of the proposed class,
and none of the named Plaintiffs would be an adequate class
representative, the Defendant contends.
The Plaintiffs John Ewalt, Steve Wylie, and Bonnie Navarre filed
this putative class action challenging three aspects of their
subscriptions to the Columbus Dispatch, which is owned by GateHouse
Ohio: (1) that their subscriptions were shortened based on
premium-edition charges; (2) that the premium editions they
received were, in their opinion, not sufficiently "premium" to
justify their price; and (3) that subscribers who received paper
bills (as opposed to those who received electronic bills or
enrolled in EZ Pay) were charged paper-statement fees. Their claims
for breach of contract and breach of the implied covenant of good
faith and fair dealing are the only potential class claims that
survived GateHouse Ohio's motion to dismiss. But those claims are
wholly incompatible with class treatment.
Gatehouse Media offers products and services including newspapers
and magazines.
A copy of the Defendant's motion dated Nov. 3, 2021 is available
from PacerMonitor.com at https://bit.ly/30ejTfO at no extra
charge.[CC]
The Defendant is represented by:
Michael J. Zbiegien Jr., Esq.
Lynn Rowe Larsen, Esq.
Daniel H. Bryan, Esq.
James D. Abrams, Esq.
Jonathan Olivito, Esq.
TAFT STETTINIUS & HOLLISTER LLP
200 Public Square, Suite 3500
Cleveland, OH 44114-2302
Telephone: 216-241-2838
Facsimile: 216-241-3707
E-mail: mzbiegien@taftlaw.com
llarsen@taftlaw.com
dbryan@taftlaw.com
jabrams@taftlaw.com
jolivito@taftlaw.com
GDC TECHNICS: Bankruptcy Court Judge Certifies Class Action
-----------------------------------------------------------
Patrick Danner, writing for San Antonio Express-News, reports that
a U.S. Bankruptcy Court judge in San Antonio has certified a
class-action lawsuit against aircraft-modification company GDC
Technics over its termination of about 250 workers earlier this
year at Port San Antonio and in Fort Worth.
Kingslea Stringham, a former engineer at GDC's Fort Worth facility,
had sued GDC alleging she and other workers were not given 60 days'
advance notice of their termination as required by federal law.
Employees are entitled to unpaid compensation and accrued paid time
off, Stringham said. She had asked the court to certify the lawsuit
as a class-action.
Judge Craig Gargotta on Oct. 29 gave several reasons in ruling why
the lawsuit was "appropriate for class certification."
Fort Worth-based GDC's plan of reorganization already has been
approved and the date for creditors to submit proofs of claim has
passed, Gargotta noted.
"As such, the traditional bankruptcy proofs of claim process is
inferior to this class-action," the judge said.
Moreover, he said, if the complaint was not certified, the laid-off
workers would "be forced to choose whether to bring their 'negative
value' suits as individual adversary proceedings." A negative value
lawsuit is one where the litigation costs exceed any likely
recovery.
On ExpressNews.com: Engineer files class-action against GDC
Technics over San Antonio, Fort Worth job losses
Court records don't establish each worker's wages and benefits, but
the value of the maximum of 60 days' wages and benefits is likely
"relatively low," Gargotta said. Same goes for the paid time off,
he said.
GDC notified the Texas Workforce Commission on April 9 that it had
issued pink slips to 56 workers at Port San Antonio and 120
employees in Forth Worth. GDC's chief executive, however, had put
the number of terminated workers at more than 200 in a court
filing.
The modified Boeing 747, tail number 29000, commonly called Air
Force One is seen Tuesday, Feb. 7, 2017 at Boeing's repair facility
at Port San Antonio. GDC Technics had been performing modification
work on the aircraft before it was dropped from the contract in
April. GDC assigned its lease at Port San Antonio to Boeing in
May.
The modified Boeing 747, tail number 29000, commonly called Air
Force One is seen Tuesday, Feb. 7, 2017 at Boeing's repair facility
at Port San Antonio. GDC Technics had been performing modification
work on the aircraft before it was dropped from the contract in
April. GDC assigned its lease at Port San Antonio to Boeing in
May.
The terminations came after Boeing Co. dropped GDC from contracts
on April 7. GDC had been performing work for Boeing on Air Force
One jets that will transport U.S. presidents. About two-thirds of
GDC's workforce supported the Boeing contracts, GDC said in a
September court filing.
GDC blamed cash flow problems on payment delays and project changes
by Boeing.
Boeing cited GDC's insolvency for terminating the contracts, but
GDC countered that Boeing refused to pay it more than $20 million
for project changes and additions.
GDC had to reduce its workforce once the contracts were terminated,
it said in a July court filing.
Stringham sued GDC for allegedly violating the federal Worker
Adjustment and Retraining Notification Act. It requires employers
who institute mass layoffs to give workers at least 60 days'
advance written notice of their termination. GDC failed to give
written notice that complied with the WARN Act, according to
Stringham's suit.
Stringham's complaint also includes a breach of contract claim. The
company is accused of failing to pay workers paid time off that
they had accrued.
SA Inc.: Get the best of business news sent directly to your inbox
GDC opposed the class certification, arguing it was not appropriate
given "individual circumstances will predominate over issues to be
decided on a class-wide basis."
Specially, GDC cited "irregularities in Stringham's time records,"
saying it appears she submitted false time records in violation of
company policy.
"If discovery reveals that GDC is correct, Stringham's bad faith in
manipulating her time records should preclude her PTO (paid time
off) claim altogether, or at the very least, GDC should be entitled
to an offset for the overpayment due to her misconduct," the
company said in a September court filing.
Attorneys for both sides didn't immediately respond to requests for
comment on Nov. 1.
In May, GDC received bankruptcy court approval to assign its lease
at Port San Antonio, 607 N. Frank Luke Drive, to Boeing. The
assignment resolved a $1.7 million claim for unpaid rent owed to
the Port Authority of San Antonio. [GN]
GENERAL MOTORS: Class Action Over Defective Engines Dismissed
-------------------------------------------------------------
James Waite, writing for Rental Management, reports that a rental
contract isn't enough.
Question: I sell new and used equipment. I usually don't have
buyers sign a separate contract or bill of sale because I have a
provision in my rental contract that I believe covers sales. Is
that enough or is there some reason I need to use a separate
document?
Answer: Technically, you could rely on a brief provision in your
rental contract, but I wouldn't recommend doing that for anything
other than small incidental items, like belts, hats, boots, gloves,
etc. Attempting to sell equipment using that type of provision is a
little like trying to build a skyscraper using a ladder -- you can
try it, but it's probably not going to be enough. A recent ruling
by a federal judge in Indiana underscores the point.
What happened. General Motors was sued by two plaintiffs, Ron Shea
and Robert Kelly, in a proposed class action -- a claim that can
include hundreds or even thousands of plaintiffs, typically
combining small individual claims into one, potentially colossal,
lawsuit -- accusing General Motors of selling vehicles which
included defective engines that consume excessive amounts of oil in
Shea et al. v. General Motors LLC; Case No. 3:21-cv-00086, U.S.
District Court, N. Dist. of IN. GM responded, in part, saying it
was never given the opportunity to repair the engines in question
because Shea and Kelly never actually sought repairs, rendering the
claim itself theoretical.
The federal court agreed, and dismissed the case, saying:
"The vehicle owners really offer but a hypothetical -- that if they
had sought repairs during the warranty period, GM wouldn't have
repaired the defect," Judge Damon Leichty wrote in his decision.
"The court decides only actual controversies, not hypotheticals."
The judge also added, "These owners never presented their vehicles
to GM for repair; by definition, they cannot claim a remedy failed
when they never sought the remedy."
Why this is important. Class actions are a major threat. By
combining multitudes of claims, class actions tend to make small
cases -- which by themselves often wouldn't merit pursuing -- into
enormous combined claims that attract swarms of plaintiffs'
class-action lawyers seeking to recover massive verdicts against
businesses, many of which simply weren't aware that they were doing
anything wrong. In recent years, a number of well-known
class-action and consumer protection lawsuits accusing equipment
dealers and lessors of improper and/or illegal practices with
respect to damage waivers, fuel charges, environmental fees, taxes
and other issues already have cost them tens of millions of
dollars. Consequently, eliminating or even just limiting these
types of claims to the extent possible has become a major focus for
us as well as for our clients.
Why rental contract provisions are not enough. Most sale provisions
included in rental contracts simply extend the protections of the
rental contract to sales, to the extent legally possible. That's a
good start, but consider Judge Leichty's ruling in this context:
"They (the class-action plaintiffs) cannot claim a remedy failed
when they never sought the remedy."
Few rental contract sale provisions would go so far as to mention a
specific remedy for a defective part -- for example, the extension
of a manufacturer's warranty. Why? First, there simply isn't room
in most rental contracts because of the need to include so many
critical rental-specific legal provisions. Secondly, the primary
purpose of a rental contract is, obviously, to address a rental
transaction. Product defect remedies are, by their nature,
creatures of sales transactions -- lessees have little need for
them other than to make certain the equipment they rent works
during their rental. This makes including issues like warranty
passthrough provisions, which extend original equipment
manufacturer (OEM) warranties to buyers, largely irrelevant -- the
reason you almost never see that language in a rental contract.
A properly written bill of sale, on the other hand, would expressly
extend OEM warranties to the buyer whenever possible, offer to
facilitate pursuit of claims on such warranties, and possibly even
offer a supplemental limited warranty made by the direct seller.
For example, "This equipment is covered by a limited warranty
calling for the seller's replacement of parts which prove defective
within 90 days immediately following your purchase . . ."
Subject, of course, to applicable laws -- state laws vary with
respect to limited warranties and warranty limitations -- these
types of provisions generally not only limit the seller's liability
for repairs and replacements, but also their potential liability
for class-action claims.
In other words, though it may seem counterintuitive, offering a
limited warranty, or at least an extension of the OEM's warranties,
if they can be extended under applicable provisioning agreements
with the OEMs, effectively creates a safety mechanism for
addressing customer complaints. It sets up a legal hurdle by first
requiring them to pursue the remedies available under their
contract -- the bill of sale -- before filing a potentially
devastating class-action lawsuit against the seller (you).
That is not all that is needed, not by a long shot. A proper bill
of sale also should include a number of other provisions,
including:
-- Price, deposits and payment terms.
-- Acknowledgement of receipt, examination, inspection, testing
and acceptance by the buyer.
-- "As-Is" language and warranty waiver.
-- Security interest/lien grant and the right to file a UCC-1
financing statement -- particularly if the seller will be financing
any portion of the purchase for even a short period of time.
-- Shipping and delivery provision identifying which party is
liable for insurance and damage during transportation.
-- Act(s) of God/force majeure provision, which excuses the
seller from timely performance in the event of a delay associated
with transportation, customs clearance, taxes, supplier delays,
strikes, epidemics or pandemics, government-mandated shutdowns, and
the usual list of additional uncontrollable events, such as fire,
flood, storm, earthquake, tsunami and more.
-- Upper limit of the seller's liability -- typically to the
purchase price.
-- Default provision, which includes seller's right to recover
the entire purchase price or the seller's anticipated profit and
any other damages the seller might suffer as a consequence of the
buyer's breach, as well as interest, attorneys' fees and costs of
court.
-- Arbitration clause.
-- Class-action waiver.
-- Integration provision incorporating all of the parties'
agreements into the bill of sale and eliminating reliance on
outside representations, warranties, advertisements, etc.
Somewhat surprisingly, Judge Leichty's ruling in Shea v. GM also
highlights the importance of the often-overlooked integration
provision. In addition to their defect claims, the plaintiffs had
alleged that GM misrepresented the vehicles in question in its
advertising materials. In response, Judge Leichty pointed out
that:
"[The plaintiffs] never sufficiently alleged they relied on these
materials in making their purchases."
The takeaway here for equipment sellers is that if non-reliance on
advertising materials can be used to fend off additional claims,
such as those involving consumer protection act violations, such as
false-advertising claims, as proved to be the case in Shea v. GM,
then a bill of sale should always include an integration provision
which acknowledges non-reliance on advertising and other outside
materials -- and thereby waives such claims to the extent possible
from the outset.
Selling new and used equipment can be an immensely profitable
business, but even a single defect can generate catastrophic legal
liability if not handled carefully and properly from the start. As
is true with respect to any job, starting with the proper tools can
save you time, money and headaches, literally and legally. With
respect to sales of new and used equipment, that tool is a properly
written bill of sale.
James Waite is a business lawyer with more than 25 years in the
equipment rental industry. He authored the American Rental
Association's book on rental contracts and represents equipment
lessors throughout North America on a wide range of issues. He can
be reached at 866-582-2586 or james@jameswaitelaw.com. [GN]
GEO GROUP: Owes Immigration Detainees $17.3 Million in Back Pay
---------------------------------------------------------------
Eduardo Medina, writing for The New York Times, reports that a
federal jury in Washington State has found that the operator of a
for-profit detention center in Tacoma owed $17.3 million in back
pay to immigration detainees who were denied minimum wage for the
work they performed there.
The jury reached that conclusion on Oct. 29, two days after it
found that the GEO Group violated Washington's minimum wage laws by
paying detainee workers $1 per day, according to Washington's
attorney general, Bob Ferguson, who sued the company in 2017.
"This multibillion-dollar corporation illegally exploited the
people it detains to line its own pockets," Mr. Ferguson said in a
statement. "The victory sends a clear message: Washington will not
tolerate corporations that get rich violating the rights of the
people."
Adam Berger, a lawyer who is representing current and former
detainees in a class-action lawsuit against GEO Group, said in an
interview on Oct. 29 that he was "proud to have represented these
individuals and grateful to the jury for seeing that justice is
done in this case."
GEO Group, which is based in Florida and last year reported more
than $2 billion in revenue, did not immediately respond to messages
seeking comment on Oct. 29. The company argued in court filings
that Washington pays prisoners in its correction facilities less
than the state minimum wage, now $13.69 an hour, and that detainees
were not employees under state law.
The case, which was heard in U.S. District Court in Tacoma, Wash.,
focused on detainees who were mainly from Mexico and Central
America and had worked at the Northwest ICE Processing Center in
Tacoma since 2014.
More than 10,000 current and former detainees will be eligible to
receive the back pay, Mr. Berger said, with some expected to be
awarded less than $20 and others more than $30,000. The average
award will be about $1,700, he said.
Mr. Berger said that some former detainees who have returned to
their native countries may not receive any money if they are hard
to locate. "But we're going to undertake robust efforts to try and
find them or get the word out so that they can get in touch with
us," he said.
Detainees at the center, which was formerly known as the Northwest
Detention Center, often did janitorial work, Mr. Berger said. They
cleaned showers and toilets, mopped floors and sometimes cooked
more than 4,000 meals a day for fellow detainees. The company
didn't employ barbers, Mr. Berger said, so the detainees also cut
one another's hair.
Goodluck Nwauzor, a former detainee and a plaintiff in the lawsuit,
said in a statement that he worked for $1 a day cleaning the
showers in a living unit that he shared with about 60 other men.
After testifying during the trial and hearing the jury's decision,
Mr. Nwauzor, who was born in Nigeria and was granted asylum in
2017, said his heart was "filled with joy."
U.S. District Judge Robert Bryan is expected to determine how much
the GEO Group will have to pay the state for unjust enrichment
through its underpaid detainee labor, according to Mr. Ferguson.
It was not clear if the company would appeal the verdict, but Mr.
Berger said he "would not be surprised" if it did.
The outcome could have implications for other detention centers
that use migrants for labor, making their treatment as "prisoners
and criminals" unjust, said Erin Hatton, a professor of sociology
and prison labor at the State University of New York at Buffalo.
"They can't be treated as such, and that's what the law is saying,"
she said. "And I do think that sends a powerful legal message, but
it also sends a powerful cultural message."
While facilities don't force them to work, Dr. Hatton said, many
detainees see no choice because they need money to call friends and
family, use the internet, pay for stamps or purchase snacks.
"To say that they're not forced is not quite accurate -- it just
means that they're not forced at gunpoint," she said. "They're
given a choice, but it's a choice to maybe not be in communication
with their family."
Jacqueline Stevens, a professor of political science and director
of the Deportation Research Clinic at Northwestern University, said
on Oct. 31 that "the minimum wage violations alleged in the Tacoma
lawsuit hold for many other facilities across the country."
"I expect to see other similar claims against GEO and other
for-profit prison firms based on similar fact-patterns," Dr.
Stevens said.
The detainees at the Tacoma center were being held while their
immigration status was being sorted out, Mr. Berger said. Most had
never been convicted of a crime, and of those who had, their
criminal sentence had already been served, Mr. Berger said.
Immigration detainees, Mr. Berger said, are "deserving of fair pay
for the work that they do keeping the facilities running." [GN]
GOVERNMENT EMPLOYEES: Syverson Sues Over Denied Overtime Wages
--------------------------------------------------------------
James Syverson, on behalf of himself and all others similarly
situated v. GOVERNMENT EMPLOYEES INSURANCE COMPANY d/b/a GEICO,
Case No. 1:21-cv-01228 (E.D. Va., Nov. 4, 2021), is brought against
the Defendant for perpetrating an unlawful payroll policy designed
to withhold and deny the Plaintiff and other Virginia-based
Adjusters earned wages and/or overtime wages as required by the
Federal Fair Labor Standards Act and the Virginia Wage Payment Act
Virginia Code.
The Plaintiff typically and customarily performed about 45-55 hours
of compensable work duties for the benefit of GEICO each week.
GEICO had actual knowledge that it was obligated to pay the
Plaintiff and the other Virginia Adjusters all wages due and owing
for all hours the Plaintiff and the other Virginia Adjusters worked
each week and pay the Plaintiff and the other Virginia Adjusters
overtime wages at the time-and-one-half rate for overtime the
Plaintiff and the other Virginia Adjusters worked over 40 hours
each week, says the complaint.
The Plaintiff was employed by GEICO during the period of January
2001 through November 2020.
GEICO is a corporation formed under the laws of the State of
Nebraska.[BN]
The Plaintiff is represented by:
Gregg C. Greenberg, Esq.
ZIPIN, AMSTER & GREENBERG, LLC
8757 Georgia Avenue, Suite 400
Silver Spring, MD 20910
Phone: (301) 587-9373
Email: GGreenberg@ZAGFirm.com
GREEN MESSENGERS: Sanchez Class Suit Dismissed With Leave to Amend
------------------------------------------------------------------
In the lawsuit captioned HANS SANCHEZ, Plaintiff v. GREEN
MESSENGERS, INC., et al., Defendants, Case No. 5:20-cv-06538-EJD
(N.D. Cal.), Judge Edward J. Davila of the U.S. District Court for
the Northern District of California, San Jose Division, dismisses
the Plaintiff's Second Amended Complaint with leave to amend.
Introduction
Plaintiff Hans Sanchez brings a putative class action, alleging
that Defendants Green Messengers and Amazon.com Services failed to
provide delivery drivers with adequate meal and rest periods and
wage statements. Pursuant to Federal Rule of Civil Procedure
12(b)(6), Defendant Amazon moves to dismiss the Plaintiff's Second
Amended Complaint ("SAC") on the grounds that the complaint fails
to allege that an employment relationship existed between Amazon
and the Plaintiff.
Background
Defendant Green Messengers employed thePlaintiff in 2019 as a
delivery driver. The SAC states that the Plaintiff worked for
"Defendants" as a non-exempt, hourly employee from approximately
March 2019 until July 20, 2019, as a delivery driver. The Plaintiff
alleges that he and the putative cla ss members were not provided
with meal periods of at least 30 minutes for each five-hour work
period due to the "Defendants'" policy of not scheduling meal
periods as part of each work shift, imposing too many deliveries on
employees, and failing to provide employees with a formal written
meal and rest period policy that encouraged employees to take their
meal and rest periods.
The Plaintiff alleges that although he and the class regularly were
not afforded meal breaks, the Defendants still automatically
deducted 30 minutes from their paychecks, regardless of whether
they took meal breaks. He further alleges that he and the putative
class members were not provided with rest periods of at least ten
minutes for each four-hour work period. He also alleges that he and
the putative class were not paid: minimum wage for all hours
worked, overtime, for business expenses, or provided with accurate
itemized wage statements. He alleges various causes of action
related to these claims.
Discussion
Amazon argues the SAC must be dismissed because it does not contain
an allegation that Amazon "employed" the Plaintiff as required to
show a violation of the California Labor Code. The Plaintiff
contends that he has no obligation at this phase to plead the
business relationship between Amazon and Green Messengers. The
Court disagrees.
Judge Davila notes that an employer-employee relationship is
required in order to establish liability for Labor Code violations,
citing Martinez v. Combs, 231 P.3d 259, 268 (Cal. 2010). Judge
Davila explains that it is possible for two defendants to "jointly
employ" a plaintiff. However, the "joint-employer" theory requires
a plaintiff to demonstrate that each "employed" the plaintiff
within the meaning of one of the three alternative definitions,
citing Curry v. Equilon Enters., LLC, 233 Cal.Rptr.3d 295, 309 (Ct.
App. 2018).
The joint-employer doctrine recognizes that even where business
entities are separate, if they share control of the terms of
conditions of an individual's employment, both companies can
qualify as employers, Judge Davila points out, citing Guitierrez v.
Carter Bros. Sec. Servs., LLC, 2014 WL 5487793, at *3 (E.D. Cal.
Oct. 29, 2014).
Judge Davila finds that the SAC is deficient because it fails to
differentiate between the two Defendants, and fails to allege how
Amazon controlled the Plaintiff's employment. For example, the SAC
alleges only that "at all relevant times mentioned herein, some or
all of the defendants were the representatives, agents, employees,
partners, directors, associates, joint ventures, principals, or
co-participants of some or all of the defendants, and in doing the
things alleged herein, were acting within the course and scope of
such relationship and with the full knowledge, consent and
ratification by such other defendants."
Judge Davila points out that it is unclear from the SAC how Amazon
controlled Green Messengers' employment of the Plaintiff and the
other putative class members (if at all). Because the Plaintiff's
allegations as to Amazon are not sufficiently differentiated and
fail to explain Amazon's relationship to the putative class, the
Court must dismiss the SAC in its entirety as each claim depends on
a predicate allegation that Amazon employed the Plaintiff and the
putative class. For this reason, the Court does not reach Amazon's
Motion to Strike.
When dismissing a complaint for failure to state a claim, a court
should grant leave to amend unless it determines that the pleading
could not possibly be cured by the allegation of other facts.
Although the Court has determined that the Plaintiff fails to state
a claim, it is possible the Plaintiff can cure his allegation by
alleging, among other things, more particular facts as to Amazon's
business relationship with Green Messengers. In the amended
pleading, the Plaintiff should ensure that allegations of
California Labor Code violations specify which Defendant is
responsible for each alleged violation, Judge Davila states.
If the Plaintiff's allegations rely on a joint employer theory of
liability, he should specify the working relationship between the
Defendants and allege each Defendants amount of control over him
and the class's wages, hours, or working conditions, to the extent
possible, Judge Davila says.
Conclusion
Amazon's motion to dismiss the Plaintiff's SAC in its entirety is
granted with leave to amend. Should the Plaintiff choose to file an
amended complaint, he must do so by Nov. 29, 2021. Failure to do
so, or failure to cure the deficiencies addressed in this Order,
will result in dismissal of the Plaintiff's claims with prejudice.
The Plaintiff may not add new claims or parties without leave of
the Court or stipulation by the parties pursuant to Federal Rule of
Civil Procedure 15.
A full-text copy of the Court's Order dated Oct. 28, 2021, is
available at https://tinyurl.com/33594a4m from Leagle.com.
GREYSTAR MANAGEMENT: Summary Judgment in Flemming's Favor Vacated
-----------------------------------------------------------------
In the lawsuit titled PHOEBE FLEMMING v. GREYSTAR MANAGEMENT
SERVICES, L.P., Case No. 20-P-1274 (Mass. App.), the Appeals Court
of Massachusetts, Suffolk, vacated the partial summary judgment
granted favor of the Plaintiff-Appellee.
Background
Phoebe Flemming brought the putative class action against her
former landlord, Greystar, claiming principally that Greystar
violated the security deposit statute, G. L. c. 186, Section 15B,
and G. L. c. 93A by requiring her to pay "animal rent" for the
right to keep dogs in her apartment. Flemming rented an apartment
managed by Greystar from June 5, 2013, to Jan. 31, 2016, pursuant
to three one-year lease contracts. Attached to each of the lease
contracts was an "Animal Addendum," which authorized Flemming to
keep dogs in the apartment. In exchange, Flemming agreed that her
total monthly rent will be increased by an additional animal rent.
The animal rent was $125 monthly from 2013 to 2014 (added to $1,024
in base rent) and $150 monthly from 2014 to 2016 (added to $1,170
in base rent). She paid a security deposit of $900.
In December 2015, Greystar served Flemming two notices to quit,
alleging chronic late payments and other violations of the lease
contracts, including that she had permitted her animal/dog to bark
and generally disrupt other residents' rights to quiet enjoyment of
their apartments and related facilities. Flemming vacated the
apartment in January 2016, approximately four months before the
lease term was set to expire. Soon thereafter, Greystar sent
Flemming a final account statement reflecting that she owed a
balance of $2,128.75: $481.25 in legal fees, $2,040 in past due
base rent, $200 in late charges, and $307.50 in past due animal
rent, minus Flemming's $900 security deposit. Flemming did not pay
any portion of this balance.
After serving Greystar a demand letter under G. L. c. 93A, Flemming
brought the action. In counts I and V of the complaint, she claimed
that the Animal Addendum and several other provisions of the lease
contracts -- authorizing Greystar to charge late fees, reletting
and buyout fees, and attorney's fees in the event of default under
the lease contracts -- were unlawful under G. L. c. 186, Section
15B, and, as a consequence, G. L. c. 93A. Judgment entered for
Flemming on counts I and V, awarding her actual and nominal damages
for the animal rent and late fees, nominal damages for the other
categories of fees, and attorney's fees and costs.
Discussion
The Legislature enacted G. L. c. 186, Section 15B, in response to
the "well known" problems associated with security deposits.
Section 15B protects the rights of tenants by, among other things,
imposing strict requirements governing the handling of security
deposits and restricting the amount of upfront charges that a
landlord may collect from a tenant or prospective tenant.
Justice Sookyoung Shin, writing for the Panel, notes that there is
no contention here that Greystar imposed any upfront charges that
were in violation of Section 15B (1) (b). Instead, Flemming's
claims arise out of Section 15B (1) (d), which states as follows:
No lessor or successor in interest shall at any time subsequent to
the commencement of a tenancy demand rent in advance in excess of
the current month's rent or a security deposit in excess of the
amount allowed by this section.
The motion judge, citing Broad St. Assocs. vs. Levine, Northeast
Housing Court, No. 12-SP-2041 (July 30, 2012), construed this
provision to incorporate the restrictions of Section 15B (1) (b).
That is, the motion judge concluded that, after a tenancy has
commenced, the landlord is prohibited under Section 15B (1) (d)
from charging fees in excess of the four categories listed in
Section 15B (1) (b). The motion judge deemed the animal rent to be
unlawful on this basis.
1. Animal rent.
Seizing on the words "at any time subsequent to the commencement of
a tenancy" in Section 15B (1) (d), Flemming contends that Greystar
could not collect animal rent during the period of her tenancy
because it is not one of the charges authorized by Section 15B (1)
(b). In support of this interpretation, Flemming relies on the
reasoning in Broad St. Assocs. that the security deposit statute
makes no distinction between up-front deposits and recurring fees,
and the law plainly prohibits requiring a tenant to pay 'any
amount' in excess of (i) first month's rent, (ii) last month's
rent, (iii) security deposit, and (iv) cost for key and lock.
This is not what the statute says, however, Judge Shin holds. While
Section 15B (1) (b) strictly regulates what a landlord may charge a
tenant at or prior to the commencement of any tenancy, once the
tenancy has commenced, Section 15B (1) (d) prohibits two things:
the demanding of (1) rent in advance in excess of the current
month's rent, and (2) a security deposit in excess of the amount
allowed by this section, i.e., the amount of the first month's
rent.
Ms. Flemming does not claim that Greystar ever sought to collect
either rent in advance of the current month's rent or an additional
security deposit. Nor was the animal rent charged by Greystar
equivalent to a security deposit "paid over time," as Flemming
argues. Judge Shin opines that the animal rent was not a deposit
intended to secure performance to keep the apartment free from
damage. Rather, it was additional rent, which Flemming agreed to
pay, in exchange for the right to keep dogs in the apartment.
Ms. Flemming provides a litany of reasons why it should be illegal
for landlords to charge extra rent for pets, but, whatever merit
there is to those arguments, they are properly directed to the
Legislature, Judge Shin points out. The Appellate Court's role is
to interpret statutes as written, see Pielech v. Massasoit
Greyhound, Inc., 423 Mass. 534, 539 (1996), cert. denied, 520 U.S.
1131 (1997), and, here, the plain language of Section 15B (1) (d)
does not support Flemming's claim of a statutory violation.
2. Reletting and buyout fees.
The Panel agrees with Greystar that Flemming lacks standing to
challenge the lease provisions governing reletting and buyout fees.
It is undisputed that Greystar did not charge Flemming either fee
when she vacated the apartment. Nonetheless, Flemming contends that
she was injured because the risk of incurring the fees might affect
a tenant's "life decisions," such as whether to move for a new
employment opportunity. But Flemming did not raise this argument to
the motion judge and offered no evidence that any such risk in fact
influenced her decision-making, Judge Shin finds.
In any event, for the reasons already discussed with respect to
animal rent, Section 15B (1) (d), did not prohibit Greystar from
charging reletting or buyout fees, Judge Shin holds. Those fees do
not constitute rent demanded in advance or an additional security
deposit. Flemming's contention that the lease provisions violated
the common law -- because it is for a court to determine whether a
landlord has accepted a tenant's surrender of the premises and has
mitigated damages -- is not germane to Greystar's liability under
the security deposit statute, Judge Shin points out.
3. Attorney's fees.
The Appellate Court likewise concludes that Flemming lacks standing
to challenge the lease provision authorizing attorney's fees in the
event of default under the lease contracts. Although Greystar
included legal fees in the final account statement, it is
undisputed that Flemming did not pay them, and Flemming's other
asserted sources of injury lack an evidentiary basis. In
particular, Judge Shin finds, there is no evidence in the summary
judgment record supporting Flemming's assertions that the charge
for legal fees influenced her decision to vacate the apartment or
that it damaged her credit score.
Furthermore, even if Flemming could establish injury, her claim
fails again on the merits because the charge for legal fees was not
a demand for rent in advance or for an additional security deposit,
Judge Shin opines. In fact, the motion judge concluded that the
attorney's fees provision was not itself unlawful, presumably
because G. L. c. 186, Section 20, contemplates that a lease of
residential property may provide that in any action or summary
proceeding the landlord may recover attorneys' fees and expenses
incurred as the result of the failure of the tenant to perform any
covenant or agreement contained in such lease.
Although the motion judge deemed the manner in which Greystar
sought the fees -- i.e., prior to any court judgment -- unlawful
under Section 15B (1) (d), the statutory language does not support
that conclusion, Judge Shin points out. Flemming's argument to the
contrary is based once more on her misimpression that Section 15B
(1) (d) prohibits additional fees besides the four permitted ones
cited in Section 15B (1) (b), imposed after the commencement of the
tenancy. Hence, her reading cannot be squared with the plain words
of the statute, Judge Shin adds.
4. General Laws c. 93A and class certification.
Because Flemming's c. 93A claim was derivative of her claim under
the security deposit statute, she cannot establish a c. 93A
violation pertaining to the animal rent, reletting and buyout fees,
and attorney's fees, Judge Shin holds, citing Park Drive Towing,
Inc. v. Revere, 442 Mass. 80, 85-86 (2004). The Judge adds that
Flemming's suggestion at oral argument that Greystar violated c.
93A independent of any violation of the security deposit statute
was not fairly raised in the complaint or summary judgment papers,
and so the Appellate Court needs not address it.
Similarly, class certification was premised on the motion judge's
erroneous determination that all of the challenged lease provisions
were unlawful under the security deposit statute and that Flemming
was entitled to nominal damages without having to show actual
injury. The Appellate Court expresses no opinion on whether class
certification is still appropriate based on those portions of the
claims relating to the late fees.
Conclusion
The Aug. 21, 2020 judgment is vacated, and the case is remanded for
entry of judgment for Greystar on those portions of counts I and V
relating to the animal rent, reletting and buyout fees, and
attorney's fees, and for redetermination of damages and attorney's
fees and costs, adjusted to reflect that Flemming prevailed only on
those portions of counts I and V relating to the late fees.
A full-text copy of the Court's Opinion dated Oct. 28, 2021, is
available at https://tinyurl.com/p4stuxsa from Leagle.com.
Kevin R. Heffernan, LAW OFFICE OF KEVIN R. HEFFERNAN, LTD., in
Norwood, Massachusetts, for the Plaintiff.
Marissa I. Delinks -- mdelinks@hinshawlaw.com -- Hinshaw &
Culbertson LLP, in Boston, Massachusetts, for the Defendant.
HAMILTON-RYKER: Fails to Pay Inspectors' OT, Cunningham Claims
--------------------------------------------------------------
JACKIE CUNNINGHAM, individually and for others similarly situated,
Plaintiff v. HAMILTON-RYKER IT SOLUTIONS, LLC, Defendants, Case No.
3:21-cv-00302 (S.D. Tex., October 22, 2021) brings this complaint
as a collective action complaint against the Defendant for its
alleged illegal pay practice that violated the Fair Labor Standards
Act.
The Plaintiff was employed by the Defendant as a Piping Inspector
from approximately March 2016 to October 2019.
The Plaintiff claims that he routinely worked 60 or more hours a
week throughout his employment with the Defendants. Although he
regularly worked more than 40 hours in a week, the Defendant did
not pay him overtime compensation at the rate of one and one-half
times his regular rates of pay for all hours worked in excess of 40
per workweek. Instead, he was only paid straight time rate for all
70 hours he worked, added the Plaintiff.
Hamilton-Ryker IT Solutions, LLC provides staffing solutions to
projects ranging from information technology, customer service, oil
and gas, and health industry. [BN]
The Plaintiff is represented by:
Michael A. Josephson, Esq.
Andrew W. Dunlap, Esq.
Richard M. Schreiber, Esq.
JOSEPHSON DUNLAP LLP
11 Greenway Plaza, Suite 3050
Houston, TX 77005
Tel: (713) 352-1100
Fax: (713) 352-3300
E-mail: mjosephson@mybackwages.com
adunlap@mybackwages.com
rschreiber@mybackwages.com
- and –
Richard J. (Rex) Burch, Esq.
BRUCKNER BURCH PLLC
11 Greenway Plaza, Suite 3025
Houston, TX 77046
Tel: (713) 877-8788
Fax: (713) 877-8065
E-mail: rburch@brucknerburch.com
HARVEST ENTITIES: Duke Seeks Transfer of Actions to Maryland
------------------------------------------------------------
Taylor Duke, on behalf of herself and all similar situated
employees v. Harvest Entities, Harvest Hospitalities, Inc., and
Sattar Shaik, Case MDL No. 3022 from THE UNITED STATES JUDICIAL
PANEL ON MULTIDISTRICT LITIGATION, submit their Motion for Transfer
of Actions to the District of Maryland, or in the Alternative to
the Western District of Pennsylvania on Oct. 27, 2021.
The Plaintiff Duke alleged, on behalf of herself and all similar
situated employees of Defendants, that the Defendants failed to pay
her and other hourly workers their regular rate of pay for all of
the hours they worked, and also failed to pay them the required
overtime premium pay for all of the houses they worked in excess of
40 hours in a work week. The Plaintiff alleged claims for breach of
contract, and violations of the Fair Labor Standards Act of 1938,
and corresponding statutes in Pennsylvania, Maryland, New Jersey,
and Virginia.[BN]
The Defendants are represented by:
Mark P. Johnson, Esq.
ECCLESRON & WOLD, P.C.
Baltimore-Washington Law Center
7240 Parkway Drive, 4th Floor
Hanover, MD 21076-1378
Phone: (410) 752-7474
Fax: (410) 752-0611
Email: viola@ewmd.com
johnson@ewmd.com
- and -
Sunshine R. Fellows, Esq.
LEWIS BRISBOIS
One PPG Place, 28th Floor
Pittsburgh, PA 15222
Phone: (412) 250-7304
Fax: (412) 567-5494
Email: Sunshine.R.Fellows@lewisbrisbois.com
- and -
George Karousatos, Esq.
BIANCAMANO & DI STEFANO, P.C.
10 Parsonage Road, Suite 300
Edison, NJ 08837
Phone: (732) 549-0220
Fax: (732) 549-0068
Email: g.karousatos@bdlawfirm.com
HEALTH IQ INSURANCE: Vaughan Sues Over Unsolicited Calls
--------------------------------------------------------
Misty Vaughan, individually and on behalf of all others similarly
situated v. HEALTH IQ INSURANCE SERVICES, INC., and DOES 1 through
10, inclusive, and each of them, Case No. 5:21-cv-01899-JGB-SHK
(C.D. Cal., Nov. 8, 2021), is brought seeking damages and any other
available legal or equitable remedies resulting from the illegal
actions of the Defendant, in negligently, knowingly, and/or
wilfully contacting the Plaintiff on the Plaintiff's cellular
telephone in violation of the Telephone Consumer Protection Act,
and related regulations, specifically the National Do-Not-Call
provisions, thereby invading the Plaintiff's privacy.
On September 2021, the Defendant contacted Plaintiff on Plaintiff's
cellular telephone, in an attempt to solicit the Plaintiff to
purchase Defendant's service. The Defendant utilized an "artificial
or prerecorded voice" as prohibited by the TCPA during its
solicitation calls to the Plaintiff. The Defendant did not possess
the Plaintiff's "prior express consent" nor had a prior established
business relationship with the Plaintiff to receive calls using an
artificial or prerecorded voice on her cellular telephone, says the
complaint.
The Plaintiff is a natural person residing in California.
The Defendant is an insurance brokerage selling and soliciting
insurance sales aimed at consumers.[BN]
The Plaintiff is represented by:
Rachel Blyumkin, Esq.
THE DEBT DEFENSE
1001 Wilshire Boulevard, Suite 2236
Los Angeles CA 90017
Phone: 833-952-9669
Email: rachel@thedebtdefense.com
HENRY THAYER: Court Amends Case Management Order in Lisowski Suit
-----------------------------------------------------------------
In the class action lawsuit captioned as CHRISTOPHER LISOWSKI, v.
HENRY THAYER COMPANY, INC., Case No. 2:19-cv-01339-MJH (W.D. Pa.),
the Hon. Judge Marilyn J. Horan entered an amended case management
order as follows:
1. Fact discovery as to Class Certification due by January 1,
2022.
2. Class Certification Motion and Production of Expert
Reports and Necessary Disclosures in Support of Class
Certification due by January 17, 2021.
Opposition to Class Certification Motion and Production of
Expert Reports and Necessary Disclosures in Opposition to
Class Certification due by April 18, 2022.
Reply in Support of Class Certification due by May 31,
2022.
3. Experts:
Depositions & Document Production of Plaintiff's Experts
re: Class Certification due by March 11, 2022.
Depositions & Document Production of Defendant's Experts
re: Class Certification due by May 16, 2022.
4. Daubert Motions for Class Certification Experts due by
June 15, 2022.
Opposition to Daubert Motions due by July 15, 2022.
Reply in Support of Daubert Motions due by August 1, 2022.
5. Motion for Summary Judgment as to Named Plaintiff's Claims
due by April 18, 2022.
Opposition due by May 31, 2022.
Reply in Support of Motion for Summary Judgment Due by
June 21, 2022.
6. Alternative Dispute Resolution (ADR):
Date the parties' ADR Stipulation is due July 1, 2022.
A copy of the Court's order dated Nov. 1, 2021 is available from
PacerMonitor.com at https://bit.ly/3mWlL5K at no extra charge.[CC]
HOEGH LNG: Robbins Geller Reminds of December 27 Deadline
---------------------------------------------------------
The law firm of Robbins Geller Rudman & Dowd LLP on Oct. 30
disclosed that purchasers of Hoegh LNG Partners LP (NYSE: HMLP)
securities between August 22, 2019 and July 27, 2021, inclusive
(the "Class Period") have until December 27, 2021 to seek
appointment as lead plaintiff in Sanchez v. Hoegh LNG Partners LP,
No. 21-cv-19374 (D.N.J.). Commenced on October 27, 2021, the Hoegh
LNG Partners class action lawsuit charges Hoegh LNG Partners LP and
certain of its top executives with violations of the Securities
Exchange Act of 1934.
If you wish to serve as lead plaintiff of the Hoegh LNG Partners
securities class action lawsuit, you can contact attorney J.C.
Sanchez of Robbins Geller by calling 800/449-4900 or via e-mail at
jsanchez@rgrdlaw.com. Lead plaintiff motions for the Hoegh LNG
Partners securities class action lawsuit must be filed with the
court no later than December 27, 2021.
CASE ALLEGATIONS: Hoegh LNG Partners LP was formed by Hoegh LNG
Holdings Ltd., a leading floating liquefied natural gas ("LNG")
service provider. Hoegh LNG Partners LP's purported strategy is to
own, operate, and acquire floating storage and regasification units
("FSRUs") and associated LNG infrastructure assets under long-term
charters. Hoegh LNG Partners LP has interests in five FSRUs,
including the PGN FSRU Lampung based in Indonesia.
The Hoegh LNG Partners securities class action lawsuit alleges
that, throughout the Class Period, defendants made false and
misleading statements and failed to disclose that: (i) Hoegh LNG
Partners LP was facing issues with the PGN FSRU Lampung charter;
(ii) as a result, the PGN FSRU Lampung charterer would state that
it would commence arbitration to declare the charter null and void,
and/or to terminate the charter, and/or seek damages; (iii) Hoegh
LNG Partners LP would need to find alternative refinancing for its
PGN FSRU Lampung credit facility; (iv) the PGN FSRU Lampung credit
facility matured in September 2021, not October 2021 as previously
stated; (v) Hoegh LNG Partners LP would be forced to accept less
favorable refinancing terms with regards to the PGN FSRU Lampung
credit facility; (vi) Hoegh LNG would not extend the revolving
credit line to Hoegh LNG Partners LP past its maturation date;
(vii) Hoegh LNG would reveal that it "will have very limited
capacity to extend any additional advances to [Hoegh LNG Partners
LP] beyond what is currently drawn under the facility"; (viii) as a
result of the foregoing, Hoegh LNG Partners LP would essentially
end distributions to common units holders; (ix) the COVID-19
pandemic was not the sole or root cause of Hoegh LNG Partners LP's
issues in Indonesia, in 2019, before the pandemic, there was
already a very low amount of demand in Indonesia for Hoegh LNG
Partners LP's gas; (x) the auditing, tax, or maintenance of PGN
FSRU Lampung were not the sole or root cause(s) of Hoegh LNG
Partners LP's issues in Indonesia; and (xi) as a result,
defendants' statements about its business, operations, and
prospects were materially false and misleading and/or lacked a
reasonable basis at all relevant times.
On July 27, 2021, Hoegh LNG Partners LP issued a press release
which announced that: (i) Hoegh LNG Partners LP had reduced its
quarterly cash distribution to $0.01 per common unit, down from a
distribution of $0.44 per common unit in the first quarter of 2021;
(ii) the refinancing of the PGN FSRU Lampung credit facility, which
had been scheduled to close by the end of the second quarter of
2021, was not yet completed due to the failure by the charterer of
the PGN FSRU Lampung to consent to and countersign certain
customary documents related to the new credit facility; (iii) the
PGN FSRU Lampung charterer stated that it will commence arbitration
to declare the charter null and void, and/or to terminate the
charter, and/or seek damages in relation to the operations of the
vessel and its charter; (iv) the revolving credit line of $85
million from Hoegh LNG Partners LP will not be extended when it
matures on January 1, 2023; and (v) Hoegh LNG Partners LP will have
very limited capacity to extend any additional advances to Hoegh
LNG Partners LP beyond what is currently drawn under the facility.
On this news, Hoegh LNG Partners LP's common unit price fell by
approximately 64%, damaging investors.
THE LEAD PLAINTIFF PROCESS: The Private Securities Litigation
Reform Act of 1995 permits any investor who purchased Hoegh LNG
Partners LP securities during the Class Period to seek appointment
as lead plaintiff in the Hoegh LNG Partners class action lawsuit. A
lead plaintiff is generally the movant with the greatest financial
interest in the relief sought by the putative class who is also
typical and adequate of the putative class. A lead plaintiff acts
on behalf of all other class members in directing the Hoegh LNG
Partners class action lawsuit. The lead plaintiff can select a law
firm of its choice to litigate the Hoegh LNG Partners class action
lawsuit. An investor's ability to share in any potential future
recovery of the Hoegh LNG Partners class action lawsuit is not
dependent upon serving as lead plaintiff.
ABOUT ROBBINS GELLER RUDMAN & DOWD LLP: With 200 lawyers in 9
offices nationwide, Robbins Geller Rudman & Dowd LLP is the largest
U.S. law firm representing investors in securities class actions.
Robbins Geller attorneys have obtained many of the largest
shareholder recoveries in history, including the largest securities
class action recovery ever -- $7.2 billion -- in In re Enron Corp.
Sec. Litig. The 2020 ISS Securities Class Action Services Top 50
Report ranked Robbins Geller first for recovering $1.6 billion for
investors last year, more than double the amount recovered by any
other securities plaintiffs' firm. Please visit
http://www.rgrdlaw.comfor more information.
Attorney advertising.
Past results do not guarantee future outcomes.
Services may be performed by attorneys in any of our offices.
Contact:
Robbins Geller Rudman & Dowd LLP
655 W. Broadway, San Diego, CA 92101
J.C. Sanchez, 800-449-4900
jsanchez@rgrdlaw.com [GN]
HOEGH LNG: Schall Law Firm Reminds of December 27 Deadline
----------------------------------------------------------
The Schall Law Firm, a national shareholder rights litigation firm,
reminds investors of a class action lawsuit against Hoegh LNG
Partners LP ("Hoegh" or "the Company") (NYSE: HMLP) for violations
of §§10(b) and 20(a) of the Securities Exchange Act of 1934 and
Rule 10b-5 promulgated thereunder by the U.S. Securities and
Exchange Commission.
Investors who purchased the Company's securities between August 22,
2019, and July 27, 2021, inclusive (the ''Class Period''), are
encouraged to contact the firm before December 27, 2021
We also encourage you to contact Brian Schall of the Schall Law
Firm, 2049 Century Park East, Suite 2460, Los Angeles, CA 90067, at
310-301-3335, to discuss your rights free of charge. You can also
reach us through the firm's website at www.schallfirm.com, or by
email at brian@schallfirm.com.
The class, in this case, has not yet been certified, and until
certification occurs, you are not represented by an attorney. If
you choose to take no action, you can remain an absent class
member.
According to the Complaint, the Company made false and misleading
statements to the market. Hoegh faced significant problems with its
charter of GN FSRU Lampung. Due to these problems, the charterer
stated that it would commence arbitration and declare the charter
null and void, amongst other actions. The Company would be forced
to find alternative refinancing for its GN FSRU Lampung credit
facility. This in turn forced the Company to accept less favorable
terms due to its requirement for new arrangements. The Company
announced it "will have very limited capacity to extend any
additional advances to the Partnership beyond what is currently
drawn under the facility." Based on these facts, the Company's
public statements were false and materially misleading throughout
the class period. When the market learned the truth about Hoegh,
investors suffered damages.
Join the case to recover your losses.
The Schall Law Firm represents investors around the world and
specializes in securities class action lawsuits and shareholder
rights litigation.
This press release may be considered Attorney Advertising in some
jurisdictions under the applicable law and rules of ethics.
CONTACT:
The Schall Law Firm
Brian Schall, Esq.,
www.schallfirm.com
Office: 310-301-3335
info@schallfirm.com [GN]
HOME DEPOT: White Employment Suit Removed to C.D. California
------------------------------------------------------------
The case styled NYIESHA WHITE, on behalf of herself and all others
similarly situated v. HOME DEPOT U.S.A., INC., and DOES 1 to 100,
inclusive, Case No. 21STCV31087, was removed from the Superior
Court of California, County of Los Angeles, to the U.S. District
Court for the Central District of California on November 5, 2021.
The Clerk of Court for the Central District of California assigned
Case No. 2:21-cv-08753 to the proceeding.
The case arises from the Defendant's alleged violations of the
California Labor Code and the California's Business and Professions
Code including failure to pay minimum wage, failure to pay overtime
wages, failure to provide meal and rest periods, failure to provide
accurate itemized wage statements, failure to provide wages when
due, and unfair competition.
Home Depot U.S.A., Inc. is a home improvement retailer in the
United States, headquartered in Atlanta, Georgia. [BN]
The Defendant is represented by:
Barbara J. Miller, Esq.
John D. Hayashi, Esq.
Samuel S. Sadeghi, 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: barbara.miller@morganlewis.com
john.hayashi@morganlewis.com
sam.sadeghi@morganlewis.com
HOTELS.COM LP: Supreme Court Dismisses Appeal in Pine Bluff Suit
----------------------------------------------------------------
The Supreme Court of Arkansas dismissed an appeal for lack of a
final or otherwise appealable order in the lawsuit styled
HOTELS.COM, L.P.; HOTWIRE, INC.; TRIP NETWORK, INC. (D/B/A
CHEAPTICKETS.COM); EXPEDIA, INC.; INTERNETWORK PUBLISHING CORP.
(D/B/A LODGING.COM); ORBITZ, LLC; PRICELINE.COM INCORPORATED (N/K/A
BOOKING HOLDINGS INC.); PRICELINE.COM LLC; TRAVELOCITY.COM L.P.
(N/K/A TVL LP); TRAVELWEB LLC; AND SITE59.COM LLC, APPELLANTS v.
PINE BLUFF ADVERTISING AND PROMOTION COMMISSION; JEFFERSON COUNTY,
ARKANSAS; CITY OF NORTH LITTLE ROCK, ARKANSAS; AND ALL OTHERS
SIMILARLY SITUATED; AND THE STATE OF ARKANSAS, APPELLEES, Case No.
CV-20-663 (Ark.).
The Defendants in this long-running class-action case, certain
online travel companies (the OTCs), appeal the Jefferson County
Circuit Court's orders denying intervention to 159 taxing
jurisdictions and denying the OTCs' motion for decertification of
any "damages class." They present these points on appeal: (1) the
circuit court lacks jurisdiction to award class-wide damages
because there has been no exhaustion of mandatory administrative
remedies; (2) the circuit court abused its discretion by failing to
follow the requirements of Rule 23; and (3) the circuit court
abused its discretion by holding that Rule 23's requirements were
satisfied to allow certification of any damages issues and claims.
Procedural History
On Sept. 25, 2009, Appellees Pine Bluff Advertising and Promotion
Commission and Jefferson County, Arkansas, on behalf of themselves
and others similarly situated, filed this declaratory-judgment
action against the OTCs. Later, Appellee the City of North Little
Rock was permitted to intervene on behalf of itself and other
similarly situated Arkansas cities. Essentially, the Appellees
alleged that the OTCs failed to remit the full amount of taxes
imposed by the Appellee Government Entities on hotel
accommodations, which the OTCs obtained at discounted rates and
then sold to consumers at a higher retail rate. The circuit court
granted class certification pursuant to Arkansas Rule of Civil
Procedure 23, and the Supreme Court affirmed (Hotels.com, L.P. v.
Pine Bluff Advert. & Promotion Comm'n, 2013 Ark. 392, 430 S.W.3d
56).
After the Supreme Court affirmed the class-certification order, the
parties filed cross-motions for summary judgment. In May 2018, the
circuit court denied the OTCs' motion for summary judgment and
granted the Appellees' motion for summary judgment. The court ruled
that the OTCs' full gross receipts they receive from customers,
including service fees, are subject to the applicable taxes. The
circuit court also ruled that the named class members would have 30
days from the date of the order to petition for additional relief
permissible under the law relating to past taxes owed, supplemental
relief or otherwise, including amending the Complaint.
The OTCs filed a petition for writ of prohibition or certiorari in
the Supreme Court, arguing that the circuit court lacked the
authority to order additional proceedings on damages (Case No.
CV-18-455). The Supreme Court denied the petition. The OTCs also
appealed from the summary-judgment order. The Supreme Court
dismissed that appeal for lack of a final order (Hotels.com, L.P.
v. Pine Bluff Advert. & Promotion Comm'n, 2019 Ark. 384).
In February 2020, Appellee the State of Arkansas's motion to
intervene was granted. Around that same time, the Appellees filed
an amended and supplemental complaint requesting, in light of the
declaratory-judgment determination, a judgment against the OTCs for
all unpaid taxes from 1995 to the present, plus penalties and
interest in an amount to be calculated from the OTCs' transaction
data. The named class members also filed a petition for
supplemental relief. Numerous advertising and promotion
commissions, cities, and counties--159 taxing jurisdictions
total--then sought to intervene, but in July 2020, the circuit
court denied intervention based on its findings that joinder is
"impractical" and that the class representatives adequately
represent the claims of all parties seeking intervention.
Also in July 2020, the Appellees filed a second amended and
supplemental complaint, along with an amended petition for
supplemental relief. The OTCs filed a motion for clarification of
the order denying intervention, requesting that the circuit court
clarify that the order does not allow for damages on a class-wide
basis, amend the order to remove the language suggesting a damages
class is certified, and decertify as to any claimed right of the
Named Plaintiffs to seek damages on a class-wide basis. In
September 2020, the circuit court entered an order (1) denying the
OTCs' requests for clarification and amendment of the order and (2)
ordering response and reply briefs regarding the request for
decertification of any damages class. The OTCs filed a notice of
appeal and amended notice of appeal from the July and September
2020 orders.
Meanwhile, the proceedings continued in the circuit court. After
considering the parties' briefs and holding a hearing, the circuit
court entered an order in November 2020 denying the OTCs' combined
(1) motion to dismiss and strike the Plaintiffs' second amended
complaint and (2) motion to dismiss and response to the Plaintiffs'
amended petition for supplemental relief and the OTCs' motion for
decertification. The OTCs filed a notice of appeal from the
November order.
On appeal, the OTCs ask the Supreme Court to "reverse the Circuit
Court's decision to certify class damages issues and claims through
its July, September, and November 2020, orders and remand with
appropriate instructions."
Is There an Appealable Order?
Whether an order is final and subject to appeal is a jurisdictional
question that the Supreme Court will raise sua sponte. It is
undisputed that there is no final order in this case, nor was a
Rule 54(b) certification filed by the circuit court, says Associate
Justice Robin F. Wynne, writing for the Panel.
Here, the Supreme Court must determine whether the orders being
appealed fall within one of the limited exceptions to the general
rule that a judgment or order must be final to be appealable. Judge
Wynne notes that the Supreme Court previously denied the Appellees'
motion to dismiss this appeal. However, the Supreme Court is not
limited by that presubmission decision.
The OTCs rely on Rule 2(a)(9) of the Arkansas Rules of Appellate
Procedure-Civil. Rule 2(a)(9) provides that an appeal may be taken
from a circuit court to the Supreme Court from an order granting or
denying a motion to certify a case as a class action in accordance
with Rule 23 of the Arkansas Rules of Civil Procedure. The OTCs
assert that this appeal is proper under Rule 2(a)(9) because it
involves newly certified damages issues and claims. They cite
Campbell v. Asbury Automotive, Inc., 2011 Ark. 157, 381 S.W.3d 21,
and Farm Bureau Policy Holders v. Farm Bureau Mutual Insurance Co.,
335 Ark. 285, 984 S.W.2d 6 (1998), for the proposition that
permitting a new issue after certification might lead to a
successive interlocutory appeal challenging class certification.
In those cases, however, the trial courts struck pleadings that
were amended after class certification and clearly alleged entirely
new claims or issues, Judge Wynne notes. Here, the circuit court
permitted the amended pleadings, and the parties dispute whether
the request for damages impermissibly raises a new issue.
Despite the OTCs' characterization of the circuit court's actions,
there is no class certification at issue in the present appeal,
Judge Wynne observes. The circuit court denied a motion to
intervene and the OTCs' motion to dismiss and motion to decertify,
none of which are appealable by the OTCs on an interlocutory basis.
Furthermore, the fact that a significant issue may be involved is
not sufficient, in itself, for the appellate court to accept
jurisdiction of an interlocutory appeal, Judge Wynne points out.
Based on this, the Supreme Court concludes that the orders the OTCs
are attempting to appeal are not appealable on an interlocutory
basis.
Appeal dismissed.
A full-text copy of the Court's Opinion dated Oct. 28, 2021, is
available at https://tinyurl.com/4drxvxek from Leagle.com.
Quattlebaum, Grooms & Tull PLLC by: Steven W. Quattlebaum --
quattlebaum@qgtlaw.com -- R. Ryan Younger -- ryounger@qgtlaw.com --
and J. Leon Holmes -- lholmes@qgtlaw.com -- for the Appellants.
Thrash Law Firm, P.A. by: Thomas P. Thrash --
tomthrash@sbcglobal.net -- and Will T. Crowder; and Law Offices of
W. Jackson Williams, PLLC, by: W. Jackson Williams, for Appellants
Pine Bluff Advertising and Promotion Commission; Jefferson County,
Arkansas; City of North Little Rock, Arkansas, and all others
similarly situated.
Larry Jegley, Pulaski County Prosecuting Attorney, for Appellee
State of Arkansas.
IMPARK QB LLC: Fails to Pay Proper Wages, More Suit Alleges
-----------------------------------------------------------
DAVID MORE, individually and on behalf of all others similarly
situated, Plaintiff v. IMPARK QB LLC, Defendant, Case No.
724027/2021 (N.Y. Sup., Queens Cty., Oct. 27, 2021) alleges that
the Defendant failed to exercise due care to adequately secure the
Parking Garage premises subsequent to the multiple warnings issued
for significant flooding, especially given that the vehicles were
stored below ground level.
According to the complaint, the Plaintiff and the class paid a
monthly fee in consideration for the right to park a vehicle (the
"Class" or "Parking Customers") at the parking garage located at
9277 Queens Blvd, Rego Park, New York 11734 ("the Parking Garage"),
on September 1, 2021.
The Plaintiff and the class seek damages arising out of the
Defendant's negligence and gross negligence relating to its: (1)
failure to notify Parking Customers that their vehicles should be
removed from the Parking Garage prior to Hurricane Ida; (2) failure
to respond to phone calls and requests by Parking Customers; (3)
failure to notify Parking Customers that their vehicles would be
towed without the opportunity to consent to the towing and storage,
obtain their personal property or tow their vehicles to an
alternate location; and (4) failure to provide Parking Customers
with any information relating to their towed vehicles.
IMPARK QB LLC provides parking management services. [BN]
The Plaintiff is represented by:
Brittany Weiner, Esq.
IMBESI LAW GROUP P.C.
1501 Broadway, Suite 1915
New York, NY 10036
Telephone: (646) 767-2271
Facsimile: (212) 658-9177
Email: brittany@lawicm.com
INNOVAGE HOLDING: Faruqi & Faruqi Reminds of December 13 Deadline
-----------------------------------------------------------------
Faruqi & Faruqi, LLP, a leading national securities law firm, is
investigating potential claims against Innovage Holding Corp
("Innovage" or the "Company") (NASDAQ: INNV) and reminds investors
of the December 13, 2021 deadline to seek the role of lead
plaintiff in a federal securities class action that has been filed
against the Company.
If you suffered losses exceeding $50,000 investing in Innovage
stock or options between March 2021 and October 14, 2021 and would
like to discuss your legal rights, call Faruqi & Faruqi partner
Josh Wilson directly at 877-247-4292 or 212-983-9330 (Ext. 1310).
You may also click here for additional information:
www.faruqilaw.com/INNV.
There is no cost or obligation to you.
Faruqi & Faruqi is a leading minority and Woman-owned national
securities law firm with offices in New York, Delaware,
Pennsylvania, California and Georgia.
As detailed below, the lawsuit focuses on whether the Company and
its executives violated federal securities laws by making false
and/or misleading statements and/or failing to disclose that: (1)
that certain of Innovage's facilities failed to provide covered
services, provide accessible and adequate services, manage
participants' medical situations, and oversee use of specialists;
(2) that, as a result, the Company was reasonably likely to be
subject to regulatory scrutiny, including by the Centers for
Medicare and Medicaid Services; (3) that, as a result, there was a
significant risk that CMS would suspend new enrollments pending an
audit of the Company's services; and (4) 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.
In March 2021, Innovage completed its IPO, selling approximately
18,995,901 shares of common stock at a price of $21.00 per share.
On September 21, 2021, after the market closed, Innovage revealed
that the Centers for Medicare and Medicaid Services ("CMS") had
"determined to freeze new enrollments at [the Company's] Sacramento
center based on deficiencies detected in [a recent] audit." It
stated that these "deficiencies relate to failures to provide
covered services, provide accessible and adequate services, manage
participants' medical situations, and oversee use of specialists,
among others."
On this news, the Company's stock price fell $2.90 per share, or
25%, to close at $8.75 per share on September 23, 2021, on
unusually heavy trading volume.
By the commencement of this action, the Company's stock was trading
as low as $6.61 per share, a nearly 69% decline from the $21 per
share IPO price.
The court-appointed lead plaintiff is the investor with the largest
financial interest in the relief sought by the class who is
adequate and typical of class members who directs and oversees the
litigation on behalf of the putative class. 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. Your ability to share in any
recovery is not affected by the decision to serve as a lead
plaintiff or not.
Faruqi & Faruqi, LLP also encourages anyone with information
regarding Innovage's conduct to contact the firm, including
whistleblowers, former employees, shareholders and others. [GN]
ISEC INC: Laborers and Carpenters Get Class Status in Castillo Suit
-------------------------------------------------------------------
In the class action lawsuit captioned as RENE CASTILLO,
INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, v.
ISEC INCORPORATED, Case No. 5:20-cv-01269-FB-ESC (W.D. Tex.), the
Hon. Judge Elizabeth S. Chestney entered an order:
1. granting the parties' joint motion for certification of
collective action and notice to class members;
2. certifying the following class:
"All hourly-paid Laborers and Carpenters employed by the
Defendant who received a bonus in connection with work
performed in at least one week in which they worked over
40 hours since October 26, 2018;" and
3. approving the Parties' agreed notice plan and directing as
follows:
-- Defendants are to provide Plaintiff with a list (in an
electronic format) of the names, last known physical
addresses, email addresses, and cell phone numbers of
all current or former employees in the class listed
above within seven days of the date of this Order;
-- Upon receipt of the list by the Plaintiff, the
Plaintiff shall send to potential class members the
Court-approved notice of this action with a date-
specific deadline for opting-in that is 90 days from
the date of the mailing of the notices by email and
regular mail;
-- The Plaintiff's counsel is to send an email message
that contains the Court-approved message and a link to
a website containing electronic copies of the court-
approved notice and consent to join forms that can be
paperlessly signed by interested class members and
electronically returned to Plaintiff's counsel in the
form and with the accompanying language as proposed by
Plaintiff in his Motion for approval and distribution
of notice and for disclosure of contact information;
and
-- The Plaintiff's counsel is to send a follow-up email
and postcard that contains the Court-approved message
and a link to a website containing electronic copies of
the court-approved Notice and Consent to Join forms to
any class members who have not responded 30 days after
the mailing of the initial Court-approved notice.
ISEC, Inc. provides interior design services.
A copy of the Court's order dated Nov. 2, 2021 is available from
PacerMonitor.com at https://bit.ly/308bMAY at no extra charge.[CC]
JANSSEN BIOTECH: Louisiana Health's Antitrust Complaint Dismissed
-----------------------------------------------------------------
In the case, LOUISIANA HEALTH SERVICE & INDEMNITY COMPANY
D/B/A/BLUE CROSS AND BLUE SHIELD OF LOUISIANA, AND HMO LOUISIANA,
INC., ET AL., ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY
SITUATED, Plaintiffs v. JANSSEN BIOTECH, INC., JANSSEN ONCOLOGY,
INC., JANSSEN RESEARCH & DEVELOPMENT, LLC, and BTG INTERNATIONAL
LIMITED, Defendants, Civ. No. 19-cv-14146 (KM) (ESK) (D.N.J.),
Judge Kevin McNulty of the U.S. District Court for the District of
New Jersey granted the Defendants' motion to dismiss the currently
operative complaint.
Introduction
To extend its exclusivity as the sole seller of profitable prostate
cancer drug, Zytiga, Janssen, along with BTG, obtained a follow-on
combination therapy patent that was later invalidated. Now,
Louisiana Health Service & Indemnity Company ("BCBSLA") brings the
antitrust action, in which it seeks to represent a class of
indirect purchasers of Zytiga who allegedly overpaid for the drug
during the period in which Janssen's infringement litigation
delayed the entrance of generic versions of Zytiga into the
market.
Background
In 1997, BTG obtained a patent (U.S. Patent No. 5,604,213) on a
therapeutic compound called abiraterone acetate. It licensed this
patent to Cougar Biotechnology in 2004, and Cougar was purchased by
Janssen in 2009. Abiraterone acetate is the key ingredient in
Janssen's drug Zytiga, which in 2011 was approved by the FDA as a
treatment for prostate cancer. Zytiga was widely prescribed for
prostate cancer and earned Janssen billions of dollars in sales
revenue. The original '213 patent, however, was set to expire in
2016.
Anticipating generic competition and lower profits, Janssen sought
to parlay its patent protection by (to simplify a bit) patenting a
combined therapy. Its initial attempts to obtain a new patent on
the combined use of abiraterone and a steroid, prednisone, were
repeatedly rejected by the United States Patent and Trademark
Office ("PTO") as obvious. In 2013, however, Janssen did obtain a
new patent for combined abiraterone acetate/prednisone therapy
(United States Patent No. 8,822,438), relying substantially on the
argument that obviousness was rebutted by the prior commercial
success of Zytiga. Janssen, however, allegedly never disclosed to
the PTO that Zytiga's commercial success was attributable to the
'213 "blocking patent," dating back to 1997, which had blocked any
other company from manufacturing and selling any drug that
contained abiraterone acetate.
In 2015, a number of generic companies filed Abbreviated New Drug
Applications ("ANDAs") with the FDA, claiming that Janssen's new
'438 patent was invalid and that they should be permitted to sell
generic versions of Zytiga when the first, '213, patent expired in
2016. Janssen, exercising its rights under the Hatch-Waxman Act,
then filed an action (the "infringement action", 15cv5909
(D.N.J.)), against the generic manufacturers, triggering a 30-month
stay of the approval of the ANDAs.
The infringement action and its appeals lasted for more than four
years. In that action, Janssen filed a complaint and two amended
complaints, and was denied leave to file a third amended complaint.
The parties briefed numerous motions, including three motions in
limine and a motion for summary judgment. Oral argument was held on
summary judgment. The motion for summary judgment was
administratively terminated, however, and an 8-day bench trial took
place. As it happened, both the Patent Trial and Appeal Board
("PTAB") and the Court ultimately determined that Janssen's second
patent was invalid for obviousness. Janssen made every effort to
enjoin generic competition, but the Federal Circuit and the Supreme
Court denied those attempts and generic competition began on Nov.
21, 2018. In May 2019, the Federal Circuit upheld the decision of
the PTAB, a ruling which required it also to dismiss the appeal
from the Court.
By engaging in this extended litigation, Janssen allegedly delayed
the entrance of generics onto the market. And as a result of that
delay, indirect purchasers paid much more for Zytiga in the interim
than they would have paid for a generic substitute. In this action,
the Plaintiffs allege that by bringing "sham litigation," Janssen
violated the Sherman Act, 15 U.S.C. Section 2, as well as a number
of state antitrust and consumer protection laws. They seek to
represent a class of indirect purchasers of Zytiga.
BCBSLA initially filed the suit in the U.S. District Court for the
Eastern District of Virginia on April 18, 2019. On May 24, 2019,
Janssen moved to change venue to the Court. On May 31, 2019, BCBSLA
moved to consolidate the case and to appoint interim class counsel.
On June 21, 2019, the Eastern District of Virginia transferred the
case to the Court, which granted the motion to consolidate and
appoint interim co-lead class counsel. On Aug. 20, 2019,
Self-Insured Schools of California, the plaintiff in a related
case, moved to consolidate cases. His second motion to consolidate
was granted on Sept. 27, 2019. On Feb. 10, 2021, Judge McNulty
granted BCBSLA's motion to appoint class counsel.
On Feb. 22, 2021, the Plaintiffs filed their Second Consolidated
Class Action Complaint. On April 6, 2021, Janssen moved to dismiss.
The Plaintiffs filed a brief in opposition and Janssen filed a
reply. The motion is fully briefed and ripe for decision.
Discussion
a. Standing
The Plaintiffs bring 58 numbered claims, all essentially based on
the allegation that Janssen engaged in "sham litigation." Count 58
is a federal claim under the Sherman Act, 15 U.S.C. Section 2.
Counts 1-29 bring claims under the antitrust laws of a number of
states, plus the District of Columbia and Puerto Rico. Counts 29-56
bring claims under many jurisdictions' consumer protection laws.
Finally, count 57 asserts unjust enrichment claims under the laws
of 41 jurisdictions.
The named Plaintiffs, however, allege that they purchased or were
reimbursed for Zytiga in only 22 states. Janssen does not contest
that the Plaintiffs have standing to bring their own federal
claims, and may assert claims under the laws of states where they
purchased or reimbursed insurance policy holders for Zytiga.
Janssen argues, however, that the Plaintiffs lack standing to
assert state-law claims under the laws of states where the named
Plaintiffs did not purchase Zytiga.
Judge McNulty opines that the named Plaintiffs surely cannot be
dismissed from the case for lack of standing, because they do
possess standing in their own right. Now it is true that the named
Plaintiffs may also end up representing absent the Plaintiffs from
other states -- if the class is certified in the manner requested.
At the motion to dismiss stage, however, such standing issues are
speculative and contingent. It might be found, for example, that
common issues do not predominate. Thus, it is appropriate to defer
standing issues until class certification and consider them as part
of the broader Rule 23 analysis.
Because the Plaintiffs themselves have standing, which is enough to
justify the action's going forward, Judge McNulty denies the motion
to dismiss the Plaintiffs' claims on standing grounds, without
prejudice to consideration of how these and related issues may be
altered in light of the class certification process.
b. Illinois Brick and Indirect Purchasers
Judge McNulty holds that the Plaintiffs' Sherman Act claim must be
dismissed because it runs afoul of the Illinois Brick direct
purchaser rule, citing Illinois Brick Co. v. Illinois, 431 U.S. 720
(1977). That is a judge-made, bright-line rule that limits the
class of potential plaintiffs in an antitrust action.
In Illinois Brick, the Supreme Court limited antitrust actions "to
suits brought by parties that are the direct purchasers of the
product." The Supreme Court reasoned that allowing indirect
purchaser suits would expose defendants to the risk of multiple
liability and raise intractable questions as to how much of an
overcharge had been passed down the distribution chain. More
generally, the Court made a policy determination that antitrust
laws would be more effectively enforced by direct purchasers. In
the aftermath of Illinois Brick, however, many states amended their
own antitrust laws to allow indirect purchaser suits.
In a footnote to Illinois Brick, the Supreme Court acknowledged an
exception to the direct purchaser rule, which applies "where the
direct purchaser is owned or controlled by its customer." 431 U.S.
at 736 n.16. The logic of this exception, known as the "control
exception," is that if the initial sale is from a parent to a
subsidiary, and then the subsidiary sells to the plaintiff, the
plaintiff is, in essence, a direct purchaser.
In the case, the Plaintiffs claim that the case falls within the
control exception by virtue of Janssen's close relationship with
the pharmacies that purchased Zytiga from Janssen and then resold
it to the members of the putative indirectpurchaser class. The
Plaintiffs allege that these were "specialty" pharmacies whose
economic interests aligned with Janssen's to such a degree that
they were Janssen's "agents," were controlled by Janssen, and would
have no ability or incentive to assert antitrust claims against
Janssen on their own account. The pharmacies at issue included
CVS/Caremark, and Alliance/Walgreens.
Judge McNukty holds that this argument falls short. The Plaintiffs
do not sufficiently allege that Janssen controlled the specialty
pharmacies to such a degree that there was in essence only one
sale, i.e., the sale from the pharmacies to their customers.
Aligned incentives are not enough.
All that remains is the Plaintiffs' assertion that Janssen
controlled the price at which Zytiga was sold by the pharmacies.
Both the Supreme Court and the Third Circuit have rejected
price-setting as the relevant criterion for determining whether the
Illinois Brick direct purchaser rule applies. What matters is whose
hands the products pass through on the way to the consumer. Only
the first pair of hands are deemed to be those of a direct
purchaser. Because the Plaintiffs do not allege that Janssen
exercised such a degree of control over the pharmacies that there
was an economic unity between them, their Sherman Act claim must be
dismissed under the Illinois Brick direct purchaser rule.
c. Noerr-Pennington Doctrine
Setting aside the Illinois Brick issue, the Defendants argue in the
alternative that the Noerr-Pennington doctrine, rooted in the First
Amendment, insulates Janssen's litigative efforts from antitrust
scrutiny. The Noerr-Pennington doctrine is a Constitutional defense
to antitrust liability. Generally, a party that exercises its First
Amendment right to petition the government for redress is shielded
from antitrust liability based on such petitioning. That immunity
extends to persons who petition all types of government entities,
including courts. A court may decide the applicability of the
Noerr-Pennington doctrine on a motion to dismiss under Fed. R. Civ.
P. 12(b)(6) in the absence of factual issues.
But Noerr-Pennington immunity, as applied to litigation, does have
a limit. It does not apply to a lawsuit so lacking in merit that it
is a "mere sham to cover what is actually nothing more than an
attempt to interfere directly with the business relationships of a
competitor." The Plaintiffs argue that Janssen's 2015 patent
infringement action against generic manufacturers was such a "sham
lawsuit." To be considered sham litigation, a lawsuit must be both
objectively and subjectively baseless. "Only if challenged
litigation is objectively meritless may a court examine the
litigant's subjective motivation."
Because he finds that the litigation was not objectively baseless,
Judge McNulty does not examine Janssen's subjective motivation for
filing suit. It is rightly difficult to prove that a lawsuit is a
mere sham. There is no straightforward test or bright line rule to
determine whether a losing lawsuit was objectively baseless. Judge
McNulty finds that Janssen's infringement action, though
unsuccessful, was not objectively baseless. On another strand,
Janssen put forward a substantial if ultimately unavailing argument
that the patent was not obvious from prior art.
Judge McNulty finds that Janssen had probable cause to bring its
patent infringement action and that it was therefore not
objectively baseless. Because that infringement action was not
objectively baseless, the Noerr-Pennington doctrine immunizes
Janssen from antitrust liability based on that action. The
Plaintiffs' Sherman Act claim based on "sham litigation" must be
dismissed for this reason.
Dismissing the Sherman Act claim still leaves the Plaintiffs with
57 numbered state law counts. These, too, must be dismissed under
the Noerr-Pennington doctrine, Judge McNulty holds. He finds that
the Plaintiffs allege no anti-competitive activity other than the
infringement litigation, which he has determined was not a sham
litigation. Their state law antitrust, consumer protection, and
unjust enrichment claims rest on the same basis as their federal
claim. Because the Noerr-Pennington doctrine is a Constitutional
doctrine based on the First Amendment right to petition, it bars
Sherman Act and analogous state law claims alike. Many state courts
have so held. The Third Circuit, too, has acknowledged that the
Noerr-Pennington bar is not limited to federal antitrust claims,
but applies to state law claims as well. A state cannot hold
defendants liable, whether in antitrust, tort, or equity, for
activities that are protected by the First Amendment.
Thus, counts 1 to 57 must be dismissed along with the Plaintiffs'
Sherman Act claim.
Conclusion
For the reasons he set forth, Judge McNulty granted the Defendants'
motion to dismiss. A separate order will be issued.
A full-text copy of the Court's Oct. 27, 2021 Opinion is available
at https://tinyurl.com/3y33we39 from Leagle.com.
JMP GROUP LLC: Faces Bushansky Suit Over Proposed Merger
--------------------------------------------------------
STEPHEN BUSHANSKY, individually and on behalf of all others
similarly situated, Plaintiff v. JMP GROUP LLC; JOSEPH A. JOLSON;
CRAIG R. JOHNSON; CARTER D. MACK; MARK L. LEHMANN; GLENN H. TONGUE;
KENNETH M. KARMIN; H. MARK LUNENBURG; JONATHAN M. ORSZAG; and STACI
SLAUGHTER, Defendants, Case No. 3:21-cv-08318 (N.D. Cal., Oct. 26,
2021) is an action against JMP Group LLC ("JMP" or the "Company")
and the members of JMP's Board of Directors for their violations of
the Securities Exchange Act of 1934, seeking to enjoin the vote on
a proposed transaction, pursuant to which JMP will be acquired by
Citizens Financial Group, Inc. ("CFG") through CFG's subsidiary
Jolt Acquisition LLC ("Merger Sub") (the "Proposed Transaction").
According to the complaint, on September 8, 2021, JMP and CFG
issued a joint press release announcing that they had entered into
an Agreement and Plan of Merger dated September 8, 2021 (the
"Merger Agreement") to sell JMP to CFG. Under the terms of the
Merger Agreement, each JMP stockholder will receive $7.50 in cash
for each share of JMP common stock they own (the "Merger
Consideration"). The Proposed Transaction is valued at
approximately $149 million.
On October 15, 2021, JMP filed a Schedule 14A Definitive Proxy
Statement (the "Proxy Statement") with the SEC. The Proxy
Statement, which recommends that JMP stockholders vote in favor of
the Proposed Transaction, allegedly omits or misrepresents material
information concerning, among other things: (i) the Company's
financial projections and the data and inputs underlying the
financial valuation analyses that support the fairness opinion
provided by the Company's financial advisor Keefe, Bruyette &
Woods, Inc. ("KBW"); (ii) KBW's and Company insiders' potential
conflicts of interest; and (iii) the background of the Proposed
Transaction. The Defendants authorized the issuance of the false
and misleading Proxy Statement in violation of the Exchange Act.
Unless remedied, JMP's public stockholders will be irreparably
harmed because the Proxy Statement's material misrepresentations
and omissions prevent them from making a sufficiently informed
voting or appraisal decision on the Proposed Transaction, says the
suit.
JMP GROUP LLC is a full-service investment banking and asset
management firm that provides investment banking, sales and
trading, and equity research services to corporate and
institutional clients as well as alternative asset management
products and services to institutional and high-net-worth
investors. [BN]
The Plaintiff is represented by:
Joel E. Elkins, Esq.
WEISSLAW LLP
611 Wilshire Blvd., Suite 808
Los Angeles, CA 90017
Telephone: (310) 208-2800
Facsimile: (310) 209-2348
Email: jelkins@weisslawllp.com
KALBAR OPERATIONS: Faces Gippsland Suit Over Business Practices
---------------------------------------------------------------
Mitry Lawyers reported that from approximately 2014,
representatives of Kalbar Operations Pty Ltd have allegedly been
continuously approaching and intimidating property owners and
business proprietors with livelihoods dependent on the successful
running of their business in the Gippsland rural region. Mitry
Lawyers is instructed that there has been substantial pressure
imposed on the property owners and businesses to sell their
properties and dispose of their businesses and leave the area, as
there would soon be a Mineral Sands Mine approved by the Minister
for the Planning. Such an approval would displace them from their
properties and their businesses developed over decades. They were
also in fear of losing farmland that had been the livelihood of the
farmers and renowned in Australia for its food and vegetables.
The impact of this improper pressure on the farmers has been
widespread and devastating. The farmers have suffered serious
psychological trauma which has led to the diminution of their
ability to properly conduct their businesses and lifestyles in one
of the most scenic and productive landscapes in Australia.
The potential class action will be seeking damages for the
psychological trauma suffered over the last seven years as well as
for the losses of their businesses, and for damages for the losses
of their business, due to the apparent improper and negligent
conduct of the defendant. It will be argued, amongst other things,
that the defendant has failed to take the proper precautions to
prevent the improper conduct of its representatives where it was
reasonably foreseeable and known to them that the business and
property owners would be affected.
The claim is likely to run in a two-stage process. The first stage
will be an assessment of whether the defendant is liable to the
class for loss of their properties, lifestyle, mental health and
businesses. The second stage will assess the quantum of damages to
be awarded to the class members. [GN]
KENT PHARMACY: Faces Class Action Over Reused COVID Syringes
------------------------------------------------------------
Keith Fraser, writing for The Province, reports that a proposed
class-action lawsuit has been filed against a New Westminster
pharmacy for allegedly reusing syringes to administer COVID-19
vaccinations for patients.
The lawsuit filed in B.C. Supreme Court in Vancouver does not say
how many patients were injected with reused syringes over a
three-day period in August at Kent Pharmacy on Columbia Street.
But Marie Powell, the representative plaintiff in the case, claims
she got her COVID shot between Aug. 24 and 26 and wasn't advised
until Sept. 22 that syringes were being reused among patients.
The education assistant says she was told that she was at risk of
contracting blood-borne illnesses such as Hepatitis B, Hepatitis C
and HIV and needed to be tested three times over the next three
months -- at three weeks, six weeks and three months after
exposure.
"As a result of the breach of contract, breach of duty and
negligence of the defendants, the plaintiff endured and continues
to endure pain and suffering and emotional and physical distress,"
says the lawsuit.
The defendants in the case are identified as Kent Pharmacy, Bhanu
Prasad Seelaboyina, a pharmacist who was employed as the pharmacy's
manager, and Fabina Kara, the owner of the pharmacy.
As a result of the failure to use reasonable care, skill and
diligence, the plaintiff and other proposed class members suffered,
at a minimum, mental injuries and alteration of lifestyles as a
result of potential exposure to illness, says the suit.
"Further, the plaintiff and proposed class members may in fact
develop illnesses that could seriously harm them and impact their
functioning, and possibly cause death. These outcomes were wholly
due to the negligence and breach of contract of the defendants."
The allegations include that the pharmacy permitted incompetent or
inadequately trained pharmacists to provide services.
The lawsuit seeks to have the case certified as a class-action
proceeding. It also seeks general, special, aggravated and punitive
damages.
No response has yet been filed to the lawsuit, which contains
allegations that have not been tested in court. The defendants
could not be reached.
In an email, the College of Pharmacists of B.C. said that the
matter remains under investigation and referred to a complaint
outcome for Seelaboyina from Sept. 21.
The outcome says an inquiry committee had reached an agreement with
the pharmacist to impose limits and conditions on his practice
pending an investigation into his conduct.
Until the investigation is complete, Seelaboyina has agreed not to
act in the role of a pharmacy manager and must not administer drugs
or substances by injection, it says.
"The registrant has admitted to using the same syringe bottle for
multiple patients while administering COVID-19 vaccinations between
Aug. 24, 2021 and Aug. 26, 2021. This conduct occurred while he was
in a leadership role as a pharmacy manager."
The inquiry committee said that it considered the measures taken to
be "above limits and conditions" necessary to protect against
further risk of harm to patients. [GN]
MAJOR LEAGUE: New York Mets Owner's Tweet Used in Class Action
--------------------------------------------------------------
Scott Polacek, writing for Bleacher Report, report that a tweet
from New York Mets owner Steve Cohen is being used against Major
League Baseball in a class action lawsuit filed by minor league
players seven years ago.
Daniel Kaplan of The Athletic reported the suit is scheduled to go
to trial in June, although both sides asked a federal judge to
preempt the trial and unilaterally rule in their favor.
In arguing for back pay as part of the suit, the minor leaguers
pointed to an August tweet from Cohen that suggested players are
worth more than their draft slot value:
The players hired Dr. Erica Groshen to write a report on the league
paying sub-minimum wage salaries to minor leaguers, and she
highlighted the tweet from Cohen.
"One recent indication of the value of a minor league player comes
from Steven Cohen, owner of the New York Mets," the former
commissioner of the U.S. Bureau of Labor Statistics wrote. "He
asserts that baseball draft picks are worth up to five times their
slot value to Clubs."
Cohen's tweet was in regard to Vanderbilt pitcher Kumar Rocker.
Jeff Passan and Kiley McDaniel of ESPN noted the Mets ultimately
did not sign Rocker after selecting him with the No. 10 overall
pick because of concerns about his health after a physical
examination. He was previously set to sign for $6 million.
While Rocker's agent, Scott Boras, said the pitcher was healthy,
New York received the No. 11 pick of the 2022 draft for not signing
him.
As for the larger issue, the living conditions for minor league
players has been under the spotlight of late. With reports of
players sleeping in cars and accruing hotel bills they could not
afford during the season, Passan reported last month that MLB will
require teams to provide housing for their minor leaguers starting
in 2022.
Despite that decision, Kaplan noted the league has argued against
paying minor leaguers even minimum wage by saying they are seasonal
employees and receive life training from their time on teams.
"Players obtained jobs during and following their time in the minor
leagues, such as coaching baseball, providing baseball instruction
at camps or privately, providing fitness instruction, owning
athletic camps, managing baseball teams, and directing athletic
departments," MLB said in its summary judgment motion.[GN]
MANDARICH LAW: Class Certification Deadlines Extended in Moore Suit
-------------------------------------------------------------------
In the class action lawsuit captioned as Shakur Moore, on behalf of
herself and all others similarly situated, v. MANDARICH LAW GROUP
LLP; and LVNV Funding LLC, Case No. 2:21-cv-02619-GW-KS (C.D.
Cal.), the Hon. Judge George H. Wu entered an order extending the
class certification deadlines, Pursuant to L.R. 7-9 of the Local
Rules, as follows:
-- Plaintiff's Motion filed: February 2, 2022
-- Defendant's response brief: February 23, 2022
-- Plaintiff's reply brief: March 16, 2022
The new date for the Plaintiff's Motion for Class Certification
will be April 4, 2022 at 8:30 a.m., There will be no further
continuances, says Judge Wu.
A copy of the Court's order dated Nov. 2, 2021 is available from
PacerMonitor.com at https://bit.ly/31OBUSF at no extra charge.[CC]
MAPLEBEAR INC: Court Grants in Part Evans' Bid to Amend Complaint
-----------------------------------------------------------------
In the lawsuit titled MELISSA EVANS, Plaintiff v. MAPLEBEAR INC.,
d.b.a. Instacart, Defendant, Case No. 4:21-cv-00428-DGK (W.D. Mo.),
the U.S. District Court for the Western District of Missouri,
Western Division, issued an order:
-- granting in part the Defendant's motion to strike the
Plaintiff's amended complaint; and
-- denying without prejudice the Plaintiff's request for leave
to amend complaint.
Plaintiff Melissa Evans filed her first complaint, a class action
petition alleging Defendant Maplebear Inc., doing business as
Instacart, violated the Missouri Merchandising Practices Act, on
Aug. 27, 2020. The Plaintiff served the complaint on the Defendant
on May 21, 2021, and the Defendant removed the case to this Court
on June 18, 2021. On July 26, 2021, the Defendant filed a motion to
dismiss for failure to state a claim.
On Aug. 9, 2021, the Plaintiff sought an extension of time to file
a response memorandum in opposition to the Defendant's Motion to
Dismiss. The Defendant consented to the extension, and the Court
granted the Plaintiff until August 30 to file a "response."
On Aug. 30, 2021, rather than file a response memorandum in
opposition to the Defendant's Motion to Dismiss, the Plaintiff
filed an Amended Complaint. The Plaintiff did not seek leave or
request the Defendant's written consent before filing the Amended
Complaint.
Now before the Court is the Defendant's Motion to Strike
Plaintiff's Amended Complaint. The Defendant argues that, because
the 21-day period in which a plaintiff may amend a complaint as a
matter of right had already lapsed, the Plaintiff was required to
either request leave of the Court or the Defendant's written
consent before filing an amended complaint.
Because the Plaintiff did neither, the Defendant argues the Court
should strike the Amended Complaint as immaterial and impertinent.
Accordingly, the Defendant also moves the Court to treat its motion
to dismiss as unopposed and rule on the existing record.
The Plaintiff argues that an amended complaint is a type of
"response" to a motion to dismiss for failure to state a claim,
and, therefore, the Court, by allowing her until August 30 to file
a "response," allowed her to file an amended complaint as a matter
of course within that time period. She relies on Hunter v. Dematic
USA, 2016 U.S. Dist. LEXIS 65167 at * 5 (D.N.J. May 18, 2016).
However, Hunter is neither binding on this Court, nor stands for
the proposition that a court's grant of an extension of time to
file a response to a motion to dismiss also extends the time to
file an amended complaint as a matter of course, District Judge
Greg Kays holds.
Judge Kays states that simply requesting an extension of time,
without reference to the filing of an amended complaint, will not
extend the time to file an amended complaint as a matter of course
pursuant to Rule 15(a)(1)(B), citing Rice v. Shelter Mut. Ins. Co.,
No. 2:21-CV-04093-WJE, 2021 WL 4228344, at *2 (W.D. Mo. May 27,
2021). The Plaintiff only requested an extension to the deadline to
file her opposition to the Defendant's Motion to Dismiss. In
addition, after reviewing the parties' emails, it appears that the
Plaintiff's counsel did not mention the possibility of filing an
amended complaint when asking for an extension of time to respond
to the Defendant's motion to dismiss.
Though the Court enjoys broad discretion under Rule 12(f), striking
a party's pleadings is an extreme measure, Judge Kays notes.
Because the Plaintiffs filed the Amended Complaint out of time and
without seeking leave of the Court or the Defendant's written
consent, the Amended Complaint is "a nullity," the Judge holds,
citing Quintana v. Adair, 673 F. App'x 815, 820 (10th Cir. 2016).
Further, the Court is confident that, if it were to leave an
inoperative complaint on the record, confusion to the Court and the
parties will result as this litigation progresses. Hence, the
Defendant's motion to strike the Amended Complaint under Rule 12(f)
is granted.
Alternatively, the Plaintiff requests the Court retroactively grant
it leave to amend under Rule 15(a)(2). Regarding whether the
Amended Complaint is futile, the Plaintiff states only that the
Amended Complaint adds factual allegations, which focus and clarify
the bases for the Plaintiff's claims.
However, after reviewing the Amended Complaint and the Defendant's
motion to dismiss, it does not appear that the Amended Complaint
materially alters the original complaint with respect to the issues
the Defendant identified, Judge Kays observes. As such, the Court
denies the Plaintiff's motion for leave to amend without
prejudice.
The Defendant's motion for the Court to treat its motion to dismiss
as unopposed and rule on the existing record is denied without
prejudice. The Plaintiff had until Nov. 12, 2021, to file
suggestions in opposition to the Defendant's motion to dismiss.
Alternatively, the Plaintiff may file another amended complaint
after either obtaining the Defendant's consent or filing a motion
for leave of Court.
A full-text copy of the Court's Order dated Oct. 28, 2021, is
available at https://tinyurl.com/f2khbest from Leagle.com.
MASTERCARD INC: Court Grants Certification to Rules Relief Class
-----------------------------------------------------------------
Mastercard Incorporated said in its Form 10-Q Report filed with the
Securities and Exchange Commission on October 28, 2021, for the
quarterly period ended September 30, 2021, that the district court
granted the Rules Relief Class's motion for class certification.
In June 2005, the first of a series of complaints were filed on
behalf of merchants (the majority of the complaints were styled as
class actions, although a few complaints were filed on behalf of
individual merchant plaintiffs) against Mastercard International,
Visa U.S.A., Inc., Visa International Service Association and a
number of financial institutions.
Taken together, the claims in the complaints were generally brought
under both Sections 1 and 2 of the Sherman Act, which prohibit
monopolization and attempts or conspiracies to monopolize a
particular industry, and some of these complaints contain unfair
competition law claims under state law. The complaints allege,
among other things, that Mastercard, Visa, and certain financial
institutions conspired to set the price of interchange fees,
enacted point of sale acceptance rules (including the no surcharge
rule) in violation of antitrust laws and engaged in unlawful tying
and bundling of certain products and services, resulting in
merchants paying excessive costs for the acceptance of Mastercard
and Visa credit and debit cards. The cases were consolidated for
pre-trial proceedings in the U.S. District Court for the Eastern
District of New York in MDL No. 1720.
The plaintiffs filed a consolidated class action complaint that
seeks treble damages.
In July 2006, the group of purported merchant class plaintiffs
filed a supplemental complaint alleging that Mastercard's initial
public offering of its Class A Common Stock in May 2006 (the "IPO")
and certain purported agreements entered into between Mastercard
and financial institutions in connection with the IPO: (1) violate
U.S. antitrust laws and (2) constituted a fraudulent conveyance
because the financial institutions allegedly attempted to release,
without adequate consideration, Mastercard's right to assess them
for Mastercard's litigation liabilities. The class plaintiffs
sought treble damages and injunctive relief including, but not
limited to, an order reversing and unwinding the IPO.
In February 2011, Mastercard and Mastercard International entered
into each of: (1) an omnibus judgment sharing and settlement
sharing agreement with Visa Inc., Visa U.S.A. Inc. and Visa
International Service Association and a number of financial
institutions; and (2) a Mastercard settlement and judgment sharing
agreement with a number of financial institutions.
The agreements provide for the apportionment of certain costs and
liabilities which Mastercard, the Visa parties and the financial
institutions may incur, jointly and/or severally, in the event of
an adverse judgment or settlement of one or all of the merchant
litigation cases. Among a number of scenarios addressed by the
agreements, in the event of a global settlement involving the Visa
parties, the financial institutions and Mastercard, Mastercard
would pay 12% of the monetary portion of the settlement. In the
event of a settlement involving only Mastercard and the financial
institutions with respect to their issuance of Mastercard cards,
Mastercard would pay 36% of the monetary portion of such
settlement.
In October 2012, the parties entered into a definitive settlement
agreement with respect to the merchant class litigation (including
with respect to the claims related to the IPO) and the defendants
separately entered into a settlement agreement with the individual
merchant plaintiffs.
The settlements included cash payments that were apportioned among
the defendants pursuant to the omnibus judgment sharing and
settlement sharing agreement described above. Mastercard also
agreed to provide class members with a short-term reduction in
default credit interchange rates and to modify certain of its
business practices, including its "no surcharge" rule.
The court granted final approval of the settlement in December
2013, and objectors to the settlement appealed that decision to the
U.S. Court of Appeals for the Second Circuit.
In June 2016, the court of appeals vacated the class action
certification, reversed the settlement approval and sent the case
back to the district court for further proceedings.
The court of appeals' ruling was based primarily on whether the
merchants were adequately represented by counsel in the settlement.
As a result of the appellate court ruling, the district court
divided the merchants' claims into two separate classes - monetary
damages claims (the "Damages Class") and claims seeking changes to
business practices (the "Rules Relief Class"). The court appointed
separate counsel for each class.
In September 2018, the parties to the Damages Class litigation
entered into a class settlement agreement to resolve the Damages
Class claims. The time period during which Damages Class members
were permitted to opt out of the class settlement agreement ended
in July 2019 with merchants representing slightly more than 25% of
the Damages Class interchange volume choosing to opt out of the
settlement.
The district court granted final approval of the settlement in
December 2019. The district court's settlement approval order has
been appealed and oral argument on the appeal is scheduled for
January 2022.
Mastercard has commenced settlement negotiations with a number of
the opt-out merchants and has reached settlements and/or agreements
in principle to settle a number of these claims. The Damages Class
settlement agreement does not relate to the Rules Relief Class
claims.
Separate settlement negotiations with the Rules Relief Class are
ongoing.
Briefing on summary judgment motions in the Rules Relief Class and
opt-out merchant cases was completed in December 2020. In September
2021, the district court granted the Rules Relief Class's motion
for class certification.
As of September 30, 2021 and December 31, 2020, Mastercard had
accrued a liability of $783 million as a reserve for both the
Damages Class litigation and the opt-out merchant cases.
Mastercard said, "As of September 30, 2021 and December 31, 2020,
Mastercard had $586 million in a qualified cash settlement fund
related to the Damages Class litigation and classified as
restricted cash on its consolidated balance sheet. The reserve as
of September 30, 2021 for both the Damages Class litigation and the
opt-out merchants represents Mastercard's best estimate of its
probable liabilities in these matters. The portion of the accrued
liability relating to both the opt-out merchants and the Damages
Class litigation settlement does not represent an estimate of a
loss, if any, if the matters were litigated to a final outcome.
Mastercard cannot estimate the potential liability if that were to
occur."
Mastercard Incorporated, a technology company, provides transaction
processing and other payment-related products and services in the
United States and internationally. The company was founded in 1966
and is headquartered in Purchase, New York.
MASTERCARD INC: Summary Ruling Briefing in Class Suit Set for 2022
------------------------------------------------------------------
Mastercard Incorporated said in its Form 10-Q Report filed with the
Securities and Exchange Commission on October 28, 2021, for the
quarterly period ended September 30, 2021, that briefing on summary
judgment in the class action suit involving conspiracy to
shiftfraud liability, is expected to occur in 2022.
In March 2016, a proposed U.S. merchant class action complaint was
filed in federal court in California alleging that Mastercard,
Visa, American Express and Discover (the "Network Defendants"),
EMVCo, and a number of issuing banks (the "Bank Defendants")
engaged in a conspiracy to shift fraud liability for card present
transactions from issuing banks to merchants not yet in compliance
with the standards for EMV chip cards in the United States (the
"EMV Liability Shift"), in violation of the Sherman Act and
California law.
Plaintiffs allege damages equal to the value of all chargebacks for
which class members became liable as a result of the EMV Liability
Shift on October 1, 2015.
The plaintiffs seek treble damages, attorney's fees and costs and
an injunction against future violations of governing law, and the
defendants have filed a motion to dismiss.
In September 2016, the district court denied the Network
Defendants' motion to dismiss the complaint, but granted such a
motion for EMVCo and the Bank Defendants.
In May 2017, the district court transferred the case to New York so
that discovery could be coordinated with the U.S. merchant class
interchange litigation described above.
In August 2020, the district court issued an order granting the
plaintiffs' request for class certification.
In January 2021, the Network Defendants' request for permission to
appeal the district court's certification decision to the appellate
court was denied.
The plaintiffs have submitted expert reports that allege aggregate
damages in excess of $1 billion against the four Network
Defendants. The Network Defendants have submitted expert reports
rebutting both liability and damages.
Briefing on summary judgement is expected to occur in 2022.
Mastercard Incorporated, a technology company, provides transaction
processing and other payment-related products and services in the
United States and internationally. The company was founded in 1966
and is headquartered in Purchase, New York.
MEDFORD, MA: Fails to Pay Proper Wages, Connors Suit Alleges
------------------------------------------------------------
JANET CONNORS; KEVIN KRUPCHECK; CHRIS MAGNA; WILLIAM MAZAKA; LOTMAX
PARAISON; DENNIS ROBINSON; DAVID ROURKE; TIFFANI RUSSELL; ALISON
SHEEHAN; and ANGELA RITA WATSON, individually and on behalf of all
others similarly situated, Plaintiffs v. CITY OF MEDFORD,
Defendant, Case No. 1:21-cv-11748 (D. Mass., Oct. 6, 2021) seeks to
recover from the Defendants unpaid wages and overtime compensation,
interest, liquidated damages, attorneys' fees, and costs under the
Fair Labor Standards Act.
The Plaintiffs were employed by the Defendant as security staffs.
CITY OF MEDFORD is a city in Middlesex County, Massachusetts. [BN]
The Plaintiff is represented by:
Daniel W. Rice, Esq.
Harrington & Rice, P.C.
738 Main Street
Hingham, MA 02043
Telephone: (781) 964-8377
Email: dwr@harringtonrice.com
METALS COMPANY: Carper Files Suit Over Share Price Drop
-------------------------------------------------------
Bruce Carper, individually and on behalf of all others similarly
situated, Plaintiffs, v. The Metals Company Inc. (TMC), Gerard
Barron, and Scott Leonard, Defendants, Case No. 21-cv-05991, (E.D.
N.Y., October 28, 2021), seeks to recover compensable damages
caused by violations of the federal securities laws and to pursue
remedies under the Securities Exchange Act of 1934.
TMC is a Canadian deep-sea minerals exploration company focused on
the collection, processing, and refining of polymetallic nodules
found on the seafloor of the ClarionClipperton Zone of the Pacific
Ocean.
On September 13, 2021, Bloomberg published an article revealing
that two investors had failed to provide $330 million as part of
the private investment in public equity component of TMC's
go-public deal, revealing that TMC's activities will damage
sensitive ecosystems and destroy vital biodiversity. On this news,
TMC's shares fell $2.45, or over 20%, over the next two trading
days to close at $10.00 on September 15, 2021, damaging investors.
Then, on October 6, 2021, before market hours, market research firm
Bonitas Research released a report detailing that the company had
overpaid on licenses to potential undisclosed insiders and
artificially inflated exploration expenses by more than 100% in
order to mislead investors about the scale of its operations. On
this news, TMC shares fell $0.32 per share, or over 7%, to close at
$4.14 per share on October 6, 2021, further damaging investors.
Carper purchased TMC securities at allegedly artificially inflated
prices and was economically damaged thereby. [BN]
Plaintiff is represented by:
Laurence M. Rosen, Esq.
Phillip Kim, Esq.
THE ROSEN LAW FIRM, P.A.
275 Madison Avenue, 34th Floor
New York, NY 10116
Phone: (212) 686-1060
Fax: (212) 202-3827
Email: lrosen@rosenlegal.com
pkim@rosenlegal.com
NATIONAL FOOTBALL: Loses Bid to Dismiss Gill Class Suit
-------------------------------------------------------
In the class action lawsuit captioned as SIETEL SINGH GILL,
individually and on behalf of other similarly situated individuals,
v. NATIONAL FOOTBALL LEAGUE, a New York unincorporated association,
and NFL ENTERPRISES LLC, a Delaware limited liability company, Case
No. 1:21-cv-01032-PAE (S.D.N.Y.), the Hon. Judge Judge Paul A.
Engelmayer entered an order:
1. denying defendants' motion to dismiss; and
2. denying defendants' motion to strike the class allegations,
without prejudice to defendants' right, later in this litigation,
to oppose class certification on similar grounds.
The Court said, "The Defendants argue that the complaint does not
adequately allege the existence of a contract between him and them,
or its breach. In the alternative, they argue that the
complaint’s class allegations should be struck under Rule
23(d)(1)(D). The Court denies in part and grants in part these
motions. On the face of the complaint and the materials cognizable
to it, Gill plausibly pleads that there was an agreement between
the named defendants and Gill that bound defendants in 2020;
whether that is in fact so requires discovery to resolve. The Court
thus denies the motion to dismiss the complaint’s claims for
breach of contract and implied warranty of merchantability"
The case will now proceed to discovery. The Court directs the
parties to submit a joint case management plan within one week of
this order. The Court's judgment is that in the first instance,
discovery should be limited to the contractual relationship
governing the Game Pass service provided to Gill, and that such
discovery should be capable of completion within three months. If,
following such discovery and any ensuing motion for summary
judgment, plaintiffs claims has survived, discovery would then be
warranted on issues of breach, damages, and potential class
certification. The Court directs counsel to formulate a case
management plan consistent with these parameters. The Court
respectfully directs the Clerk of the Court to close the motions
pending at dockets 15 and 25.
This case arises from the alleged interruption of a live-streaming
service, Game Pass Pro, during the 2020 Super Bowl. Plaintiff
Sietel Singh Gill, an Australian resident who subscribed to the
service, brings a putative class action lawsuit against the
National Football League ("NFL") and NFL Enterprises LLC ("NFLE")
for breach of contract, breach of implied warranty of
merchantability, and unjust enrichment.
The National Football League is a professional American football
league consisting of 32 teams, divided equally between the National
Football Conference and the American Football Conference.
A copy of the Court's order dated Nov. 2, 2021 is available from
PacerMonitor.com at https://bit.ly/3ww8ynm at no extra charge.[CC]
NEW JERSEY: Skelton's Bid for Leave to File Amended Complaint OK'd
------------------------------------------------------------------
The U.S. District Court for the District of New Jersey, Camden
Vicinage, grants the Plaintiffs' First Motion for Leave to File
Amended Complaint in the lawsuit entitled RAYMOND SKELTON, on
behalf of himself and all other similarly situated persons,
Plaintiff v. NEW JERSEY DEP'T OF CORR., et al., Defendants, Case
No. 19-18597 (RMB/KMW) (D.N.J.).
Defendants New Jersey Department of Corrections, Marcus O. Hicks
and John Powell ("NJDOC Defendants") filed an informal response to
the motion to amend, taking no position on whether the motion
should be granted, but noting this Court granted their motion to
dismiss and the proposed amended complaint does not seek to
reinstate them as Defendants.
Background
The Plaintiff filed his initial complaint as a putative class
action on Oct. 2, 2019. On Oct. 30, 2020, the Court granted the
NJDOC Defendants' motion to dismiss but granted leave to file an
amended complaint.
On June 5, 2021, the Court ordered the Plaintiffs to show cause why
this action should not be dismissed for failure to prosecute.
Counsel for the Plaintiffs responded, and this Court directed the
Plaintiffs to file a motion to amend the complaint within 30 days,
and the Plaintiffs complied.
The Proposed Amended Complaint
The Plaintiffs' proposed amended complaint deletes the claims
against the NJDOC and Administrators Marcus O. Hicks and John
Powell. The remaining allegations are made against John Doe
Defendants, who are alleged to have personal involvement in
designing, preparing and serving nutritionally inadequate food to
the Plaintiff and the putative class.
Analysis
The Plaintiffs filed their motion for leave to amend the complaint
within the 30 day period provided by this Court's Order dated July
20, 2021.
District Judge Renee Marie Bumb notes that there does not appear to
be any bad faith on the Plaintiffs' part in bringing a motion to
amend. The John Doe Defendants have not yet been identified or
served with the original complaint. They are not prejudiced by
bringing the same claims in an amended complaint without the NJDOC
Defendants. Therefore, the motion should be granted unless the
claims are futile, the Judge holds. Under this liberal pleading
standard, the claims in the Plaintiff's proposed amended complaint
are not futile.
Therefore, the Court grants the Plaintiffs' motion for leave to
file the proposed amended complaint.
It is, therefore, ordered that the Plaintiffs' First Motion for
Leave to File Amended Complaint is granted.
Judge Bumb also ordered the Clerk to file the Plaintiffs' proposed
amended complaint as the amended complaint in this matter.
A full-text copy of the Court's Memorandum and Order dated Oct. 28,
2021, is available at https://tinyurl.com/ayryfjca from
Leagle.com.
Joseph D. Lento -- jdlento@lentolawgroup.com -- Lento Law Group,
P.C., in Mt. Laurel, New Jersey, Keith Altman, Esq., EXCOLO Law
PLLC, in Southfield, Michigan, Attorneys for the Plaintiff.
Daniel S. Shehata, Deputy Attorney General, Michael Ezra Vomacka,
Deputy Attorney General, New Jersey Office of the Attorney General,
in Trenton, New Jersey, Attorneys for the Defendants.
NEW YORK: City Mayor Issues Emergency Executive Order 279
---------------------------------------------------------
New York City Mayor Bill de Blasio disclosed that WHEREAS, on
September 2, 2021, the federal monitor in the Nunez use-of-force
class action litigation stated steps must be taken immediately to
address the conditions in the New York City jails; and
WHEREAS, excessive staff absenteeism among correction officers and
supervising officers has contributed to a rise in unrest and
disorder, and creates a serious risk to the necessary maintenance
and delivery of sanitary conditions; access to basic services
including showers, meals, visitation, religious services,
commissary, and recreation; and prompt processing at intake; and
WHEREAS, the Department of Correction's (DOC's) staffing shortages
are affecting health operations, including the availability of
escorts to bring patients to the clinics and of DOC personnel to
staff the clinics; and
WHEREAS, this Order is given to address the effects of excessive
staff absenteeism and in order to address the conditions at DOC
facilities; and
WHEREAS, on September 15, 2021, I issued Emergency Executive Order
No. 241 and declared a state of emergency to exist within the
correction facilities operated by the DOC, most recently extended
by Emergency Executive Order No. 264, and such declaration remains
in effect;
NOW, THEREFORE, pursuant to the powers vested in me by the laws of
the State of New York and the City of New York, including but not
limited to the New York Executive Law, the New York City Charter
and the Administrative Code of the City of New York, and the common
law authority to protect the public in the event of an emergency:
Section 1. I hereby direct that section 1 of Emergency Executive
Order No. 276, dated October 29, 2021, is extended for five (5)
days.
Section 2. I hereby direct the suspension of Board of Correction
minimum standards Section 1-05(b), Section 1-08(f), Section 6-04,
Section 6-07, Section 6-11, Section 6-24, Section 6-27, and Section
6-28(e-g).
Section 3. I hereby direct that any DOC correction officer or
supervising officer who is confined to their residence on account
of reporting sick, and who is deemed in violation of their
permitted "out-of-residence" hours, or is determined by DOC to have
otherwise abused the Department's sick leave policy, shall be
suspended for up to thirty days without pay pending hearing and
determination of disciplinary charges.
Section 4. This Emergency Executive Order shall take effect
immediately and shall remain in effect for five (5) days unless it
is terminated or modified at an earlier date. [GN]
NEWMONT CORP: Plaintiff's Counsel Seeks to Discontinue Class Suit
-----------------------------------------------------------------
Newmont Corporation said in its Form 10-Q Report filed with the
Securities and Exchange Commission on October 28, 2021, for the
quarterly period ended September 30, 2021, that the plaintiff's
counsel in the proposed class action suit relating to the public
disclosure concerning the Penasquito mine, filed a motion to
discontinue the active lawsuit.
On October 28, 2016 and February 14, 2017, separate proposed class
actions were commenced in the Ontario Superior Court of Justice
pursuant to the Class Proceedings Act against the Company and
certain of its current and former officers.
Both statement of claims alleged common law negligent
misrepresentation in Goldcorp, Inc.'s public disclosure concerning
the Penasquito mine and also pleaded an intention to seek leave
from the Court to proceed with an allegation of statutory
misrepresentation pursuant to the secondary market civil liability
provisions under the Securities Act.
By a consent order, the latter lawsuit proceeded, and the former
action has been stayed.
The active lawsuit purports to be brought on behalf of persons who
acquired Goldcorp Inc.'s securities in the secondary market during
an alleged class period from October 30, 2014 to August 23, 2016.
An amended complaint was filed in the active lawsuit, which removed
the individual defendants, and requested leave of the Court to
pursue only the statutory cause of action.
In July of 2021, plaintiff's counsel filed a motion to discontinue
the active lawsuit.
The Company continues to vigorously defend this matter, but cannot
reasonably predict the outcome.
Newmont Corporation engages in the production and exploration of
gold, copper, silver, zinc, and lead. The Company has operations
and/or assets in the United States, Canada, Mexico, Dominican
Republic, Peru, Suriname, Argentina, Chile, Australia, and Ghana.
Newmont Corporation was founded in 1916 and is headquartered in
Greenwood Village, Colorado.
NORMAN BARWIN: Judge Approves $13.375MM Class Action Settlement
---------------------------------------------------------------
CBC News reports that a judge has approved the class action
settlement of a multi-million-dollar payout from disgraced Ottawa
fertility doctor Norman Barwin to benefit families who claim he
used the wrong sperm -- or even his own -- to conceive at least 100
children.
Ontario Superior Court Justice Calum MacLeod approved the
settlement on Nov. 1, which includes a negotiated payout worth
$13.375 million.
Since the class action was certified in July, it has grown by 18
individuals to 244 members, including former patients and children
conceived through artificial insemination.
In the entire class, 17 have discovered Barwin is their biological
father through DNA.
The lead plaintiffs Dan and Davina Dixon had sought Barwin's help
to conceive a child together, with their daughter Rebecca born in
1990. Only in recent years did the family learn Barwin -- not Dan
Dixon -- is Rebecca's biological father.
Rebecca Dixon said they achieved their goals with the class action,
one of which was to raise awareness with Barwin's former patients
about possible errors.
"I certainly never expected to find as many people as we did in as
many different situations as we did," Dixon said in an interview
with CBC after the decision.
"Being able to put the legal process to rest -- even if it doesn't
offer full emotional closure -- it is a significant step in getting
to a place of acceptance and having the harm that everyone
experienced recognized."
The five-year journey led her to meet half-siblings and others
seeking closure about their origins, she said.
None of those who were part of the original group seeking
certification of a class opted out before the settlement was
approved, according to Peter Cronyn, the lawyer representing the
families.
"From a legal perspective, there are no precedents for the kind of
harm done here. There's no precedent for what these people have
gone through," Cronyn said.
He said people have been devastated to learn their genetic
background isn't what they'd believed, and many still don't know
who their actual father was.
Maximum payout of $50K
Members of the class action are entitled to up to $50,000 depending
on the "category of harm" of the individual.
Cronyn said they have until February to file the required documents
and, if necessary, go through the genetic testing to verify they
are part of the class.
The highest payout is for families who have DNA proof a child or
children conceived "with Dr. Barwin's assistance, or with semen
previously entrusted to Dr. Barwin, are not the biological child of
the man in the couple."
The first child of those patients is entitled to $40,000, and each
additional child in the same family is "entitled up to a further
$10,000 each, in total."
The settlement also includes damages for patients who entrusted
their sperm to Barwin for storage and safekeeping, which was then
used for the conception of a child with an unrelated patient.
The class-action agreement says the negotiated settlement is not an
admission of wrongdoing by Barwin, who "has denied and continues to
deny all of the plaintiffs' claims in this action."
In 2019, the College of Physicians and Surgeons of Ontario stripped
Barwin of his medical licence, finding he had committed
professional misconduct by using his own sperm to inseminate
several patients and using the wrong sperm with many others. Barwin
pleaded no contest at the time and was ordered to pay a fine of
$10,730.
CBC News has not received a response from Barwin's lawyer. [GN]
NY ASPHALT: Toral Sues Over Unpaid Wages for Construction Workers
-----------------------------------------------------------------
FRANCISCO JAVIER TORAL DELGADO, individually and on behalf of all
others similarly situated, Plaintiff v. NY ASPHALT, INC., BROADWAY
PAVING CORP., MICHAEL THOMPSON and JOSEPH GIANNETI, Defendants,
Case No. 1:21-cv-06188 (E.D.N.Y., November 5, 2021) is a class
action against the Defendants for violations of the Fair Labor
Standards Act and the New York Labor Law including failure to pay
appropriate minimum wages and overtime pay for all hours worked,
failure to provide accurate wage statements, breach of contract,
and unjust enrichment and quantum meruit.
Mr. Toral worked for the Defendants as an operating engineer from
in or around 2000 through in or around December 2020.
NY Asphalt, Inc. is a construction firm, with its principal place
of business located at 366 Industrial Loop, Staten Island, New
York.
Broadway Paving Corp. is a construction firm, with its principal
place of business located at 366 Industrial Loop, Staten Island,
New York. [BN]
The Plaintiff is represented by:
Brent E. Pelton, Esq.
Taylor B. Graham, Esq.
PELTON GRAHAM LLC
111 Broadway, Suite 1503
New York, NY 10006
Telephone: (212) 385-9700
Facsimile: (212) 385-0800
OAKLAND, CA: Expected to Settle Freelance Journalists' Lawsuit
--------------------------------------------------------------
David DeBolt, writing for The Oaklandside, reports that The Oakland
City Council is expected to settle a lawsuit filed by freelance
journalists and privacy advocates over the Oakland Police
Department's failure to respond to public records requests, in
violation of the California Public Records Act and Oakland Sunshine
Ordinance. Journalists Scott Morris, Brian Krans, and Sarah Belle
Lin, and Michael Katz and Oakland Privacy sued the city last year.
Under state law, government agencies must respond to a request
within 10 days, either by handing over the records or explaining
what laws allow them to withhold or redcat parts of them. Agencies
can extend the 10-day period for another 14 days in "unusual
circumstances." But in Oakland, thousands of requests went
unanswered, some languishing for years. A Public Ethics Commission
study found that many people struggled to get copies of their own
police reports for insurance claims. According to Morris, the
settlement requires OPD to clear its backlog of requests in six
months and release all records sought under SB 1421 -- police
shootings, use of force causing great bodily injury, dishonesty,
and sexual assault cases -- in 15 months with rolling productions
every two weeks. It also sets benchmarks for releasing crime and
tow reports, and requires the police chief and city attorney
present a progress report to City Council within four months.
Because the case was filed as a class action, the settlement will
include everyone with a pending request submitted after Aug. 19,
2017, which is outstanding for more than 20 days at the time of the
preliminary settlement approval. Alameda County Superior Court will
retain jurisdiction over the case until OPD can show it cleared the
backlog and is in compliance with 80% of new requests. The city
also agrees to pay $127,500 to cover attorney fees and costs. In
closed session on Oct. 7, City Council unanimously approved the
settlement. Full disclosure: Morris, Krans, and Belle Lin have
contributed articles to The Oaklandside. [GN]
OMMSAN LLC: Fails to Pay Proper Wages, Kelly Suit Alleges
---------------------------------------------------------
CRYSTAL KELLY, individually and on behalf of all other similarly
situated, Plaintiff v. OMMSAN, LLC; MUNIR ABUZIYADEH; and DENNY'S
CORPORATION, Defendant, Case No. 6:21-cv-00422 (E.D. Tex., Oct. 26,
2021) seeks to recover from the Defendants unpaid wages and
overtime compensation, interest, liquidated damages, attorneys'
fees, and costs under the Fair Labor Standards Act.
Plaintiff Kelly was employed by the Defendants as manager.
OMMSAN, LLC owns and operates a restaurant in Canton, Texas. [BN]
The Plaintiff is represented by:
William S. Hommel, Jr., Esq.
HOMMEL LAW FIRM
5620 Old Bullard Road, Suite 115
Tyler, TX 75703
Telephone: (903) 596-7100
Email: bhommel@hommelfirm.com
ONTARIO ENERGY: Court Approves Class Action Settlement
------------------------------------------------------
Foreman Company disclosed that the settlement agreement in the
Ontario Energy Group and Home Trust Company HVAC Equipment Lease
Class Action has been approved by the Court. The Court has directed
that a further hearing is needed in order to finalize the
Distribution Protocol. Following approval of the Distribution
Protocol, another notice will be sent to class members. That notice
will announce the commencement of the claims process and its
details and timetable. [GN]
PACIFICNORTHWEST NATURALS: Sued Over Mislabeled Food Supplements
----------------------------------------------------------------
SAYEED AKBAR, individually and on behalf of all others similarly
situated, Plaintiff v. PACIFICNORTHWEST NATURALS LLC, Defendant,
Case No. 1:21-cv-05960 (E.D.N.Y., Oct. 26, 2021) is a class action
lawsuit on behalf of purchasers of the Defendant's product, Genius
Caffeine Extended Release Caffeine (the "Product").
According to the complaint, the Defendant is the owner and operator
of "The Genius Brand." The Genius Brand is a self-described leading
manufacturer and seller of "nootropics," which are supplements that
allegedly improve brain functioning. Defendant's products are sold
under the "Genius Brand" label.
Specifically, the Defendant represents that "through a sustained
release, microencapsulation technique, GENIUS CAFFEINE provides
true sustained energy that simulates thermogenesis, accelerating
the rate at which your body burns calories," among other
representations described below, says the suit.
However, these representations are allegedly false. A peer-reviewed
study has found no difference between extended-release or sustained
release caffeine pills, like the Product, and regular-release
caffeine supplements. Worse yet, the Defendant charges a price
premium for the Product based on the representations that the
Product is superior to standard caffeine supplements.
PACIFICNORTHWEST NATURALS LLC sells dietary and nutritional
supplements in the US. [BN]
The Plaintiff is represented by:
Max S. Roberts, Esq.
BURSOR & FISHER, P.A.
888 Seventh Avenue, Third Floor
New York, NY 10019
Telephone: (646) 837-7150
Facsimile: (212) 989-9163
Email: mroberts@bursor.com
-and-
Rachel L. Miller, Esq.
BURSOR & FISHER, P.A.
701 Brickell Ave., Suite 1420
Miami, FL 33131
Telephone: (305) 330-5512
Facsimile: (305) 676-9006
Email: rmiller@bursor.com
PHILADELPHIA, PA: Partial Judgment Bid in Liberty Suit Partly OK'd
------------------------------------------------------------------
In the case, LIBERTY RESOURCES, INC., et al. v. CITY OF
PHILADELPHIA, Civil Action No. 19-3846 (E.D. Pa.), Judge Harvey
Bartle, III, of the U.S. District Court for the Eastern District of
Pennsylvania issued a memorandum:
a. denying the Plaintiffs move for partial summary judgment;
and
b. granting in part and denying in part the City's motion for
partial summary judgment.
Background
The class action involves claims of pervasive disability
discrimination concerning the installation, alteration, and
maintenance of sidewalk curb ramps on Philadelphia streets.
The Plaintiffs, a group of individuals with disabilities and
disability advocacy organizations, have commenced the class action
against the City of Philadelphia for violating Title II of the
Americans with Disabilities Act ("ADA"), 42 U.S.C. Sections 12131,
et seq., and Section 504 of the Rehabilitation Act, 29 U.S.C.
Section 794 et seq. They request both declaratory and injunctive
relief. They seek to compel the City to complete new construction
and alteration to sidewalks and streets in a manner that fully
complies with federal accessibility standards, including the
installation of ADA-compliant curb ramps and upgrading of
noncompliant curb ramps when resurfacing streets under 28 C.F.R.
Section 35.151. They also seek an order compelling the City to
maintain the accessibility of its existing pedestrian rights-of-way
under 28 C.F.R. Section 35.133.2
Before the Court are cross-motions of the parties for partial
summary judgment under Rule 56 of the Federal Rules of Civil
Procedure. The Plaintiffs move for partial summary judgment against
the City "for its failure to comply with its obligations to install
ADA-compliant curb ramps where they do not already exist and
upgrade non-compliant curb ramps, whenever it repaves or resurfaces
streets," as well as for its "failure to maintain ADA-compliant and
accessible curb ramps." They clarify that they only seek summary
judgment at this juncture that "the City's policies violated and
continue to violate the law," and "not an order that specific curb
ramps or a specific number of curb ramps violate the law."
The City moves for partial summary judgment on the Plaintiffs'
claims to the extent the Plaintiffs challenge the City's
generalized policies on curb ramp installation rather than assert
ADA violations at the specific locations the Plaintiffs have
identified in discovery. The City also moves for summary judgment
with respect to any violation of the ADA that accrued beyond the
two-year statute of limitations.
Discussion
I.
The Plaintiffs as noted seek partial summary judgment against the
City for its policies on curb ramp installation, alteration, and
maintenance. They first rely on the undisputed history and policies
of the City with respect to the installation, alteration, and
maintenance of curb ramps on its more than 1,900 miles of streets
within its borders. The Plaintiffs seek only a declaration at this
juncture that the City's policies violated and continue to violate
the law and not an order related to specific curb ramp violations.
Judge Bartle finds that there exist genuine disputes of material
fact concerning whether specific curb ramps or the absence of curb
ramps at specific locations violate the ADA. He holds that
liability against the City cannot be imputed based on its general
policies without reference to specific violations of the ADA.
Accordingly, the motion of the Plaintiffs for partial summary
judgment will be denied.
II.
The City first moves for summary judgment on the Plaintiffs' claims
under the alteration regulation, 28 U.S.C. Section 35.151, to the
extent the Plaintiffs challenge the City's general policies on curb
ramp alterations without references to specific sites. The City
argues that for the Plaintiffs to obtain any relief they must prove
that specific intersections do not comply with the applicable
regulations concerning curb ramps.
Judge Bartle agrees that Section 35.151 requires site-specific
proof. The Plaintiffs must establish that the City has failed to
meet legal obligations as to specific curb ramps and cannot simply
show that its general policies do not conform to the regulation. In
sum, Jydge Bartle holds that to prove violations of Section 35.151,
the Plaintiffs must prove violations as to specific curb ramps at
specific intersections. Accordingly, he will grant the City's
motion for partial summary judgment to the extent that the
Plaintiffs seek to impute liability on the City without doing so.
Insofar as that the Plaintiffs reference violations with respect to
specific curb ramps and specific intersections, however, there are
genuine disputes of material fact that must be resolved at trial.
III.
The City next moves to dismiss the Plaintiffs' alteration claims to
the extent that they are barred by a statute of limitations. Since
the statute of limitations is an affirmative defense, the City has
the burden of proof to show that the Plaintiffs' claims with
respect to individual curb ramps are time-barred. The Plaintiffs
insist the analysis of Disabled in Action of Pa. v. Se. Pa. Transp.
Auth. (DIA), 539 F.3d 199, 208 (3d Cir. 2008), is limited to claims
under the ADA public transit facilities section, Section 12147, and
that the discovery rule should apply to curb ramp alteration claims
under Section 35.151 instead.
Judge Bartle finds that in its motion for partial summary judgment,
the City, which has the burden of proof, does not identify whether
any claims are time-barred at any specific curb ramps or
intersections. He will not forage for them through the record like
a "pig, hunting for truffles." Thus, the City's motion for partial
summary judgment against the Plaintiffs' claims under Section
35.151 on statute of limitations grounds will be denied. The City,
of course, is not precluded from producing relevant proof at
trial.
IV.
The City next moves for partial summary judgment on the Plaintiffs'
claims under the maintenance regulation, 28 C.F.R. Section 35.133,
to the extent they are time-barred. The City argues that like the
Plaintiffs' claims under Section 35.151, a Section 35.133 claim
accrues two years after "maintenance work completed" at the curb
ramp. The Plaintiffs counter that their Section 35.133 claims are
timely because the regulation imposes an "ongoing obligation" to
maintain curb ramp accessibility that is "not tied to the date of
any construction or alteration of accessible features."
Judge Bartle holds that a failure-to-maintain claim under Section
35.133 accrues at each existing curb ramp each day that it is in a
noncompliant state. He says, the Plaintiffs are correct that
Section 35.133 imposes an ongoing obligation on the City to
maintain its existing curb ramps in operable working condition.
Whereas a claim against a public entity accrues as to a curb ramp
under Section 35.151 when it resurfaces a street, the duty to
maintain an existing curb ramp under Section 35.133 is not tethered
to any specific event. Practical reasons also demand this result:
While a street resurfacing is a discrete act, the failure to
maintain a curb ramp is not. The failure to maintain a curb ramp
therefore is a continuing violation of the ADA. Accordingly, the
City's motion for partial summary judgment against the Plaintiffs'
Section 35.133 claims on statute of limitations grounds will be
denied.
Conclusion
Judge Bartle (i) denied the Plaintiffs move for partial summary
judgment and (ii) granted in part and denied in part the City's
motion for partial summary judgment.
A full-text copy of the Court's Oct. 27, 2021 Memorandum is
available at https://tinyurl.com/sk4da3xa from Leagle.com.
PILGRIM'S PRIDE: Agreement Reached in CIIPP Class Suit
------------------------------------------------------
Pilgrim's Pride Corporation said in its Form 10-Q Report filed with
the Securities and Exchange Commission on October 28, 2021, for the
quarterly period ended September 30, 2021, that the company and the
putative Commercial and Institutional Indirect Purchaser Plaintiff
Class ("CIIPPs") reached an agreement, to settle all claims subject
to Court approval.
Between September 2, 2016 and October 13, 2016, a series of
purported federal class action lawsuits styled as In re Broiler
Chicken Antitrust Litigation, Case No. 1:16-cv-08637 were filed
with the U.S. District Court for the Northern District of Illinois
against the company (PPC) and 19 other producers by and on behalf
of direct and indirect purchasers of broiler chickens alleging
violations of federal and state antitrust and unfair competition
laws.
The complaints seek, among other relief, treble damages for an
alleged conspiracy among defendants to reduce output and increase
prices of broiler chickens from the period of January 2008 to the
present.
The class plaintiffs have filed three consolidated amended
complaints: one on behalf of direct purchasers ("the Direct
Purchaser Plaintiff Class") and two on behalf of distinct groups of
indirect purchasers.
Between December 8, 2017 and September 1, 2021, 81 individual
direct action complaints were filed with the Illinois Court by
individual direct purchaser entities ("DAPs") naming PPC as a
defendant, the allegations of which largely mirror those in the
class action complaints.
Subsequent amendments to certain complaints added allegations of
price fixing and bid rigging on certain sales.
On June 17, 2021, the Illinois Court issued a revised scheduling
order through trial, under which merits fact discovery for
defendants and most plaintiffs closed on July 31, 2021, with
additional discovery of subsequent DAPs proceeding in six month
increments following consolidation of each DAP complaint.
Expert discovery will proceed from August 31, 2021 through May 13,
2022 with summary judgment briefing beginning on June 10, 2022 and
concluding on November 21, 2022. The Court has not yet set a trial
date.
On January 11, 2021, PPC announced that it had entered into an
agreement to settle all claims made by the putative Direct
Purchaser Plaintiff Class ("DPPs"). The Illinois Court granted
final approval of the settlement on June 29, 2021.
As a result of this agreement, PPC recognized an expense of $75.0
million within Selling, general and administrative expense in the
Condensed Consolidated Statements of Income for the year ended
December 27, 2020. Pursuant to this agreement, PPC paid the DPPs
this amount during the first quarter of 2021.
On July 28, 2021, PPC and the putative End-User Consumer Indirect
Purchaser Plaintiff Class ("EUCPs") reached an agreement to settle
all claims, subject to Court approval under Rule 23.
Preliminary, and ultimately final, approval of the settlement was
granted on August 12, 2021 and final approval hearing is scheduled
for December 20, 2021.
In addition, on August 3, 2021, PPC and the putative Commercial and
Institutional Indirect Purchaser Plaintiff Class ("CIIPPs") reached
an agreement, to settle all claims subject to Court approval under
Rule 23.
A motion for preliminary approval of that settlement was filed on
September 30, 2021 and a hearing on the motion was held on October
15, 2021.
Under the terms of these settlements, PPC has paid the EUCPs an
amount of $75.5 million and has agreed to pay the CIIPPs an amount
of $45.0 million to release all outstanding claims brought by such
Classes. Settlement with the CIIPPs is subject to the final
approval of the Illinois Court.
As a result of these agreements, PPC recognized this expense within
Selling, general and administrative expense in the Condensed
Consolidated Statements of Income for the nine months ended
September 26, 2021.
The settlements with the DPPs, EUCPs and CIIPPs do not cover the
claims of the DAPs or other parties who have or will opt out of
such settlements.
PPC will therefore continue to litigate against such Opt Outs and
will seek reasonable settlements where they are available. PPC has
recognized an expense of $257.4 million to cover both negotiated
and potential settlements with various Opt Outs.
The amount accrued is an estimate that is subject to change. PPC
recognized this expense within Selling, general and administrative
expense in the Condensed Consolidated Statements of Income for the
nine months ended September 26, 2021.
Pilgrim's Pride Corporation engages in the production, processing,
marketing, and distribution of fresh, frozen, and value-added
chicken products in the United States, the United Kingdom, Europe,
and Mexico. The company was founded in 1946 and is headquartered in
Greeley, Colorado. Pilgrim's Pride Corporation is a subsidiary of
JBS S.A.
PILGRIM'S PRIDE: Ruling on Hogan Bid to Amend Judgment Pending
--------------------------------------------------------------
Pilgrim's Pride Corporation said in its Form 10-Q Report filed with
the Securities and Exchange Commission on October 28, 2021, for the
quarterly period ended September 30, 2021, that the Colorado
Court's decision on the motion for the amended judgment filed in
the putative class action suit initiated by Patrick Hogan, is
currently pending.
On October 10, 2016, Hogan, acting on behalf of himself and a
putative class of persons who purchased shares of the company's
(PPC's) stock between February 21, 2014 and October 6, 2016, filed
a class action complaint in the U.S. District Court for the
District of Colorado against PPC and its named executive officers
(the "Hogan Litigation").
The complaint alleges, among other things, that PPC's SEC filings
contained statements that were rendered materially false and
misleading by PPC's failure to disclose that (1) PPC colluded with
several of its industry peers to fix prices in the broiler-chicken
market as alleged in the In re Broiler Chicken Antitrust
Litigation, (2) its conduct constituted a violation of federal
antitrust laws, (3) PPC's revenues during the class period were the
result of illegal conduct and (4) that PPC lacked effective
internal control over financial reporting.
The complaint also states that PPC's industry was anticompetitive
and seeks compensatory damages. On April 4, 2017, the Colorado
Court appointed another stockholder, George James Fuller, as lead
plaintiff.
On May 11, 2017, the plaintiff filed an amended complaint, which
extended the end date of the putative class period to November 17,
2017. PPC and the other defendants moved to dismiss on June 12,
2017, and the plaintiff filed its opposition on July 12, 2017. PPC
and the other defendants filed their reply on August 1, 2017.
On March 14, 2018, the Colorado Court dismissed the plaintiff's
complaint without prejudice and issued final judgment in favor of
PPC and the other defendants.
On April 11, 2018, the plaintiff moved for reconsideration of the
Colorado Court's decision and for permission to file a Second
Amended Complaint. PPC and the other defendants filed a response to
the plaintiff's motion on April 25, 2018.
On November 19, 2018, the Colorado Court denied the plaintiff's
motion for reconsideration and granted plaintiff leave to file a
Second Amended Complaint. On June 8, 2020, the plaintiff filed a
Second Amended Complaint against the same defendants, based in part
on the Indictment.
On July 31, 2020, defendants filed a motion to dismiss the Second
Amended Complaint pursuant to Rule 12(b)(6) of the Federal Rules of
Civil Procedure.
The Colorado Court granted the motion to dismiss on April 19, 2021
and issued judgment in favor of defendants.
On May 17, 2021, the plaintiff filed a motion for amended judgment.
PPC and the other defendants filed their opposition to the motion
for amended judgment on June 7, 2021.
The Colorado Court's decision on the motion for the amended
judgment is currently pending.
Pilgrim's Pride Corporation engages in the production, processing,
marketing, and distribution of fresh, frozen, and value-added
chicken products in the United States, the United Kingdom, Europe,
and Mexico. The company was founded in 1946 and is headquartered in
Greeley, Colorado. Pilgrim's Pride Corporation is a subsidiary of
JBS S.A.
PLATT ELECTRIC: Hardin Wage-and-Hour Suit Goes to E.D. California
-----------------------------------------------------------------
The case styled JOHN HARDIN, individually and on behalf of all
others similarly situated v. PLATT ELECTRIC SUPPLY, INC.; PLATT
ELECTRIC SUPPLY; REXEL INC.; REXEL USA, INC.; and DOES 1 through
10, inclusive, Case No. BCV-21-101808, was removed from the
Superior Court for the County of Kern to the U.S. District Court
for the Eastern District of California on November 5, 2021.
The Clerk of Court for the Eastern District of California assigned
Case No. 1:21-at-01026 to the proceeding.
The case arises from the Defendants' alleged violations of the
California Labor Code and the California's 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.
Platt Electric Supply, Inc. is an electric supplier doing business
in California.
Platt Electric Supply is an electric supplier doing business in
California.
Rexel Inc. is a distributor of electrical components and products
based in Dallas, Texas.
Rexel USA, Inc. is a distributor of electrical components and
products based in Dallas, Texas. [BN]
The Defendant is represented by:
Linda Claxton, Esq.
David Szwarcsztejn, Esq.
Armig K. Khodanian, Esq.
OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C.
400 South Hope Street, Suite 1200
Los Angeles, CA 90071
Telephone: (213) 239-9800
Facsimile: (213) 239-9045
E-mail: linda.claxton@ogletree.com
david.szwarcsztejn@ogletree.com
armig.khodanian@ogletree.com
PLYMOUTH ROCK: Has Made Unsolicited Calls, Clough Suit Claims
-------------------------------------------------------------
ROBERT W. CLOUGH, II, individually and on behalf of all others
similarly situated, Plaintiff v. PLYMOUTH ROCK MANAGEMENT COMPANY
OF NEW JERSEY; and JOHN DOE CORPORATION, Defendants, Case No.
2:21-cv-19343 (D.N.J., Oct. 27, 2021) seeks to stop the Defendants'
practice of making unsolicited calls.
PLYMOUTH ROCK MANAGEMENT COMPANY OF NEW JERSEY operates as an
insurance company. The Company offers automobile, renters, and
umbrella insurance services. [BN]
The Plaintiff is represented by:
Ari H. Marcus, Esq.
MARCUS & ZELMAN, LLC
701 Cookman Avenue, Suite 300
Asbury Park, NJ 07712
Telephone: (732) 695-3282
Email: ari@marcuszelman.com
-and-
Anthony I. Paronich, Esq.
PARONICH LAW, P.C.
350 Lincoln Street, Suite 2400
Hingham, MA 02043
Telephone: (508) 221-1510
Email: anthony@paronichlaw.com
QUANTUMSCAPE CORP: Bid to Dismiss NY Putative Class Suit Pending
----------------------------------------------------------------
Quantumscape Corporation said in its Form 10-Q Report filed with
the Securities and Exchange Commission on October 28, 2021, for the
quarterly period ended September 30, 2021, that the motion to
dismiss the putative class action suit filed in the New York State
Supreme Court, is pending.
On December 11, 2020, a putative class action lawsuit was filed in
the New York State Supreme Court by a purported Company warrant
holder against the Company. The Company removed the case to federal
court.
On March 26, 2021, the plaintiff amended the complaint to drop the
class allegations.
The amended complaint alleges, among other things, that the
plaintiff was entitled to exercise his warrants within 30 days of
the Closing and that the proxy statement/prospectus/information
statement dated September 21, 2020 and November 12, 2020 is
misleading and/or omits material information concerning the
exercise of the warrants.
The complaint seeks monetary damages for alleged breach of
contract, securities law violations, fraud, and negligent
misrepresentation.
QuantumScape's motion to dismiss the securities-law violations,
fraud, and negligent misrepresentation claims is currently pending
before the court.
The Company is also aware of another action that was filed on
October 26, 2021 in the Southern District of New York by an
additional plaintiff, alleging the same theories of liability as in
the above-described lawsuit.
Quantumscape Corporation develops next generation battery
technology for electric vehicles ("EVs") and other applications.
The company is based in San Jose, California.
QUANTUMSCAPE CORP: Bid to Junk Battery Technology Suit Pending
--------------------------------------------------------------
Quantumscape Corporation said in its Form 10-Q Report filed with
the Securities and Exchange Commission on October 28, 2021, for the
quarterly period ended September 30, 2021, that the motion to
dismiss the consolidated putative class action suit related to the
company's battery technology, is pending.
Between January 5, 2021 and May 4, 2021, four putative class action
lawsuits were filed in the Northern District of California by
purported purchasers of Company securities against the Company and
its Chief Executive Officer or against the Company, certain members
of management and the Board, and VGA.
The court consolidated the actions and appointed a lead plaintiff
and counsel. Lead plaintiff filed a consolidated complaint on June
21, 2021, which alleges a purported class that includes all persons
who purchased or acquired the Company's securities between November
27, 2020 and April 14, 2021.
The consolidated complaint names the Company, its Chief Executive
Officer, its Chief Financial Officer, and its Chief Technology
Officer as defendants.
The consolidated complaint alleges that the defendants purportedly
made false and/or misleading statements and failed to disclose
material adverse facts about the Company's business, operations,
and prospects, including information regarding the Company's
battery technology.
Defendants' motion to dismiss the consolidated complaint is
expected to be fully briefed and heard by the court in December
2021.
Quantumscape Corporation develops next generation battery
technology for electric vehicles ("EVs") and other applications.
The company is based in San Jose, California.
R.R. DONNELLEY: Patodia Suit Alleges Breach of Fiduciary Duty
-------------------------------------------------------------
RAM PATODIA and ONE68 GLOBAL MASTER FUND, LP, on behalf of
themselves and all other similarly situated stockholders of R.R.
DONNELLEY & SONS COMPANY, Plaintiffs v. IRENE M. ESTEVES, SUSAN
GIANINNO, DANIEL L. KNOTTS, TIMOTHY R. MCLEVISH, JAMIE MOLDAFSKY,
JOHN C. POPE, JAMES RAY, ATLAS RIVER ACQUISITION SUB INC., ATLAS
RIVER PARENT INC., COMPUTERSHARE TRUST COMPANY, N.A., and R.R.
DONNELLEY & SONS COMPANY, Defendants, Case No. 2021-0955 (Del. Ch.,
November 5, 2021) is a class action against the Defendants for
breach of fiduciary duty and aiding and abetting breaches of
fiduciary duty.
According to the complaint, the Defendants breached their fiduciary
duty to the Plaintiffs and similarly situated stockholders of R.R.
Donnelley & Sons Company by entering into a merger agreement with
Atlas Holdings LLC, which contains unreasonable defensive measures
and maintains the company's poison pill stockholder rights plan for
all other stockholders, while Chatham Asset Management, a competing
bidder, was and is willing to offer higher consideration to
stockholders. As a result, the Plaintiffs and the Class have been
harmed, says the suit.
One68 Global Master Fund, LP is a hedge fund company based in New
York, New York.
Atlas River Parent Inc. is a corporation formed to acquire R.R.
Donnelley & Sons Company in a merger.
Atlas River Acquisition Sub Inc. is a wholly-owned subsidiary of
Atlas River Parent Inc.
Computershare Trust Company, N.A. is a federally chartered trust
company based in Massachusetts.
R.R. Donnelley & Sons Company is a corporation that provides
multichannel business communications services and marketing
solutions. [BN]
The Plaintiffs are represented by:
Ned Weinberger, Esq.
LABATON SUCHAROW LLP
300 Delaware Ave., Suite 1340
Wilmington, DE 19801
Telephone: (302) 573-2540
- and –
David Schwartz, Esq.
David MacIsaac, Esq.
John Vielandi, Esq.
LABATON SUCHAROW LLP
140 Broadway
New York, NY 10005
Telephone: (212) 907-0700
- and –
Jeremy Friedman, Esq.
David Tejtel, Esq.
FRIEDMAN OSTER & TEJTEL PLLC
493 Bedford Center Road, Suite 2D
Bedford Hills, NY 10507
Telephone: (888) 529-1108
RELIANCE WORLDWIDE: Court Enters Scheduling Order in Elder Suit
---------------------------------------------------------------
In the class action lawsuit captioned as JENE B. ELDER, et al.,
individually and on behalf of all others similarly situated, v.
RELIANCE WORLDWIDE CORPORATION, a Delaware Corporation; and HOME
DEPOT U.S.A., INC., a Delaware Corporation, Case No.
1:20-cv-01596-AT (N.D. Ga.), the Hon. Judge Amy Totenberg entered a
scheduling order as follows:
-- RWC and Home Depot shall file their answers to the FAC on
or beore November 19, 2021; provided however, that if
Plaintiffs amend their FAC, Defendants shall have 25 days
from the date of the amendment to file their answers.
-- The Parties shall file any amended pleading(s) on or before
February 2, 2022.
-- The Parties shall complete fact discovery on or before May
20, 2021.
-- The Parties shall serve expert disclosures on or before May
27, 2022.
-- The Parties shall serve rebuttal disclosures on or before
June 27, 2022.
-- Expert discovery shall be completed on or before July 19,
2022.
-- Plaintiffs shall file their class certification motion on
or before July 25, 2022.
-- Defendants shall file their response to Plaintiffs’ class
certification motion on or before August 31, 2022.
-- Plaintiffs shall file any reply in support of their class
certification motion by September 23, 2022.
-- Any dispositive motions shall be filed on or before August
1, 2022.
-- Responses to dispositive motions shall be filed on or
before August 31, 2022.
-- Replies in support of dispositive motions shall be filed on
or before September 28, 2022.
Reliance Worldwide is an Australian-owned publicly listed company
which designs, manufactures and supplies water flow and control
products and solutions. The company operates in Australia, New
Zealand, Canada, the United States, Spain and the United Kingdom.
A copy of the Court's order dated Nov. 1, 2021 is available from
PacerMonitor.com at https://bit.ly/3BUUt3M at no extra charge.[CC]
RG WELDING: Faces Garcia Suit Over Laborers' Unpaid OT Wages
------------------------------------------------------------
The case, CARLOS GARCIA, individually and on behalf of all others
similarly situated, Plaintiff v. RG WELDING OILFIELD SERVICES, LLC
and ROGELIO GALINDO, Defendants, Case No. 7:21-cv-00198 (W.D. Tex.,
October 22, 2021) arises from the Defendants' alleged violations of
the Fair Labor Standards Act.
The Plaintiff has worked for the Defendants as a laborer from
approximately January 2017 to June 2020.
According to the complaint, the Plaintiff regularly worked in
excess of 40 hours per week. However, the Defendants denied him of
his lawfully earned overtime compensation at the rate of one and
one-half times his regular rate of pay for all hours he worked in
excess of 40 per workweek. The Plaintiff brings this complaint to
recover unpaid overtime wages, liquidated damages and attorney's
fees and costs.
RG Welding Oilfield Services provides welding services for the oil
and gas industry. Rogelio Galindo is the owner of the company.
[BN]
The Plaintiff is represented by:
Melissa Moore, Esq.
Curt Hesse, Esq.
MOORE & ASSOCIATES
440 Louisiana St., Suite 1110
Houston, TX 77002
Tel: (713) 222-6775
Fax: (713) 222-6739
RIBBON COMMUNICATIONS: Bid to Dismiss Miller Class Suit Pending
---------------------------------------------------------------
Ribbon Communications Inc. said in its Form 10-Q Report filed with
the Securities and Exchange Commission on October 28, 2021, for the
quarterly period ended September 30, 2021, that the motion to
dismiss the class action initiated by Ron Miller is still pending.
On November 8, 2018, Ron Miller, a purported stockholder of the
Company, filed a Class Action Complaint in the United States
District Court for the District of Massachusetts against the
Company and three of its former officers, claiming to represent a
class of purchasers of Sonus common stock during the period from
January 8, 2015 through March 24, 2015 and alleging violations of
the federal securities laws.
Similar to a previous complaint entitled Sousa et al. vs. Sonus
Networks, Inc. et al., which was dismissed with prejudice by an
order dated June 6, 2017, the Miller Complaint claims that the
Defendants made misleading forward-looking statements concerning
Sonus' expected fiscal first quarter of 2015 financial performance,
which statements were also the subject of an August 7, 2018
Securities and Exchange Commission Cease and Desist Order, whose
findings the Company neither admitted nor denied.
The Miller plaintiffs are seeking monetary damages.
After the Miller Complaint was filed, several parties filed and
briefed motions seeking to be selected by the Massachusetts
District Court to serve as a Lead Plaintiff in the action.
On June 21, 2019, the Massachusetts District Court appointed a
group as Lead Plaintiffs and the Lead Plaintiffs filed an amended
complaint on July 19, 2019.
On August 30, 2019, the Defendants filed a motion to dismiss the
Miller Complaint and, on October 4, 2019, the Lead Plaintiffs filed
an opposition to the motion to dismiss.
There was an oral argument on the motion to dismiss on February 12,
2020.
No further updates were provided in the Company's SEC report.
Ribbon Communications Inc. provides networked solutions in the
United States, Europe, the Middle East, Africa, Japan, other Asia
Pacific, and internationally. The company was formerly known as
Sonus Networks, Inc. and changed its name to Ribbon Communications
Inc. in November 2017. Ribbon Communications Inc. was founded in
1997 and is headquartered in Westford, Massachusetts.
RITZ-CARLTON HOTEL: Judge Wants Attorney Testimony Tossed
---------------------------------------------------------
Madison Arnold, writing for Law360, reports that The Ritz-Carlton
Hotel Co. wants a Florida federal judge to prevent a lawyer's
personal testimony from being considered in a class action that
alleges the hotel used "deceptive" practices to charge undisclosed
or improperly disclosed automatic gratuity or service fees at its
restaurants. [GN]
RUST-OLEUM CORPORATION: Coating Products "Defective," Stevens Says
------------------------------------------------------------------
NEIL STEVENS, individually and on behalf of all others similarly
situated, Plaintiff v. RUST-OLEUM CORPORATION, Defendant, Case No.
1:21-cv-05957 (N.D. Ill., November 5, 2021) is a class action
against the Defendant for declaratory relief, breach of express
warranty, breach of the implied warranty of merchantability,
fraud/fraudulent concealment, negligent misrepresentation, unjust
enrichment/restitution, and violations of the California Unfair
Competition Law, the California Consumers Legal Remedies Act, the
California False Advertising Law, and the Song-Beverly Consumer
Warranty Act.
According to the complaint, the Defendant is engaged in false,
deceptive, and misleading advertising, labeling, and marketing of
Rust-Oleum's water-based acrylic coating products under the brand
RockSolid. Rust-Oleum aggressively markets these products to
consumers as durable and weather resistant products that are
capable of extending the life of decks and other similar surfaces.
In reality, the products are defective and prone to failure.
Contrary to Rust-Oleum's advertising and representations, the
products are plagued by flaws that cause them to fail to adhere
properly to underlying surfaces. Despite proper product
application, the products prematurely degrade, chip, bubble, peel,
flake, strip, and otherwise deteriorate, failing to provide the
advertised protection to the decks, patios, and other structures to
which these products are applied, says the suit.
As a result of Rust-Oleum's alleged conduct, the Plaintiff and
members of the Class have incurred substantial costs relating to
their decks and other outdoor surfaces, have experienced property
damage to their structures, and have otherwise been injured.
Rust-Oleum Corporation is a manufacturer of protective paints and
coatings for home and industrial use, with its corporate
headquarters located in Vernon Hills, Illinois. [BN]
The Plaintiff is represented by:
Katrina Carroll, Esq.
Kyle A. Shamberg, Esq.
LYNCH CARPENTER LLP
111 W. Washington Street, Suite 1240
Chicago, IL 60602
Telephone: (312) 750-1265
E-mail: katrina@lcllp.com
kyle@lcllp.com
- and –
Robert R. Ahdoot, Esq.
Christopher Stiner, Esq.
AHDOOT & WOLFSON, PC
2600 W. Olive Avenue, Suite 500
Burbank, CA 91505
Telephone: (310) 474-9111
Facsimile: (310) 474-8585
E-mail: rahdoot@ahdootwolfson.com
cstiner@ahdootwolfson.com
- and –
Andrew W. Ferich, Esq.
AHDOOT & WOLFSON, PC
201 King of Prussia Road, Suite 650
Radnor, PA 19087
Telephone: (310) 474-9111
Facsimile: (310) 474-8585
E-mail: aferich@ahdootwolfson.com
S&P GLOBAL: Rosen Law Firm Investigates Securities Claims
---------------------------------------------------------
Rosen Law Firm, a global investor rights law firm, on Nov. 1
announced an investigation of potential securities claims on behalf
of shareholders of S&P Global Inc. (NYSE: SPGI) resulting from
allegations that S&P Global may have issued materially misleading
business information to the investing public.
SO WHAT: If you purchased S&P Global securities you may be entitled
to compensation without payment of any out of pocket fees or costs
through a contingency fee arrangement. The Rosen Law firm is
preparing a class action seeking recovery of investor losses.
WHAT TO DO NEXT: To join the prospective class action, go to
http://www.rosenlegal.com/cases-register-2192.htmlor call Phillip
Kim, Esq. toll-free at 866-767-3653 or email pkim@rosenlegal.com or
cases@rosenlegal.com for information on the class action.
WHAT IS THIS ABOUT: On October 4, the U.S. Department of Justice
announced that it was expanding its probes into misconduct in the
global commodities market by investigating suspected manipulation
of energy pricing benchmarks published by London-based Platts, a
part of S&P Global. Specifically, U.S. prosecutors are probing
suspected manipulative behavior by individual traders when
submitting those deal prices to Platts' price assessments for oil
and other energy benchmarks.
On this news, S&P Global's stock price fell $12.51, or 2.92%, to
close at $415.85 on October 4, 2021.
WHY ROSEN LAW: We encourage investors to select qualified counsel
with a track record of success in leadership roles. Often, firms
issuing notices do not have comparable experience, resources or any
meaningful peer recognition. Be wise in selecting counsel. The
Rosen Law Firm represents investors throughout the globe,
concentrating its practice in securities class actions and
shareholder derivative litigation. Rosen Law Firm has achieved the
largest ever securities class action settlement against a Chinese
Company. Rosen Law Firm was Ranked No. 1 by ISS Securities Class
Action Services for number of securities class action settlements
in 2017. The firm has been ranked in the top 4 each year since 2013
and has recovered hundreds of millions of dollars for investors. In
2019 alone the firm secured over $438 million for investors. In
2020, founding partner Laurence Rosen was named by law360 as a
Titan of Plaintiffs' Bar. Many of the firm's attorneys have been
recognized by Lawdragon and Super Lawyers.
Attorney Advertising. Prior results do not guarantee a similar
outcome.
Contacts:
Laurence Rosen, Esq.
Phillip Kim, Esq.
The Rosen Law Firm, P.A.
275 Madison Avenue, 40th Floor
New York, NY 10016
Tel: (212) 686-1060
Toll Free: (866) 767-3653
Fax: (212) 202-3827
lrosen@rosenlegal.com
pkim@rosenlegal.com
cases@rosenlegal.com
www.rosenlegal.com [GN]
SEDGEWICK CLAIMS: Appeals Specialists Seek Unpaid Overtime Wages
----------------------------------------------------------------
Amy Greenwald, Sonia Brown, Erika Dennis, Kamesha Lee, Jasmine
Nurse, Sherilyn O'Hara and Ontaria Read, for themselves and all
others similarly situated, Plaintiff, v. Sedgewick Claims
Management Services, Inc., Defendants, Case No. 21-cv-01813, (M.D.
Fla., October 28, 2021), seeks to recover overtime compensation and
other wages, liquidated damages, prejudgment interest, attorneys'
fees, costs and other compensation pursuant to the Fair Labor
Standards Act and various states' labor laws.
Plaintiffs worked for Sedgewick as Appeals Specialists in its
various locations. They claim to be denied the legally required
overtime rate, misclassified as exempt from overtime pay, and
denied payslips. [BN]
Plaintiffs are represented by:
Mary E. Lytle, Esq.
David V. Barszcz, Esq.
LYTLE & BARSZCZ
533 Versailles Drive, 2nd Floor
Maitland, FL 32751
Telephone: (407) 622-6544
Facsimile: (407) 622-6545
Email: mlytle@lblaw.attorney
dbarszcz@lblaw.attorney
SHAKER CONTRACTORS: Lucero et al. Sue Over Unpaid Overtime Wages
----------------------------------------------------------------
LUIS LUCERO, JOAQUIN COLIN, and JOSE ARGUETA, individually and on
behalf of all others similarly situated, Plaintiffs v. SHAKER
CONTRACTORS, CORP. and SHER GUL, Defendants, Case No. 1:21-cv-08675
(S.D.N.Y., October 22, 2021) bring this complaint against the
Defendant seeking equitable and legal relief for its alleged
violations of the Fair Labor Standards Act and New York Labor Law.
The Plaintiffs have worked for the Defendants as construction
workers for various amounts of time between in or around 2003 and
in or around January 2021.
The Plaintiffs claim that throughout their employment with the
Defendants, they were only compensated at a fixed daily rate
regardless of the number of hours worked per week. Despite
routinely working more than 40 hours per week, the Defendants did
not pay them overtime compensation at the rate of one and one-half
times their regular hourly rates of pay or the applicable minimum
wage for the hours they worked over 40 per week, added the
Plaintiffs.
Shaker Contractors, Corp. is a contractor that provides residential
and commercial construction services in the greater New York area.
Sher Gul is an officer, director, shareholder, and/or person in
control of the Corporate Defendant. [BN]
The Plaintiff is represented by:
Adam Sackowitz, Esq.
KATZ MELINGER PLLC
280 Madison Ave., Suite 600
New York, NY 10016
Tel: (212) 460-0047
Fax: (212) 428-6811
E-mail: ajsackowitz@katzmelinger.com
SOCLEAN INC: Faces Albright Suit Over Defective Ventilators
-----------------------------------------------------------
TROY ALBRIGHT, individually and on behalf of all others similarly
situated, Plaintiff v. SOCLEAN, INC., Defendant, Case
2:21-cv-02494-HLT-ADM (D. Kan., Oct. 28, 2021) is an action to
recover damages from the Defendant's sale and marketing of its
SoClean 3 CPAP sanitizing machine, SoClean 2 Go CPAP Sanitizing
machine and/or their predecessor devices ("SoClean device").
According to the complaint, SoClean manufactures and sells medical
devices that clean continuous positive airway pressure ("CPAP")
machines. The SoClean device is marketed as being compatible with
many types of these machines.
When a cleaning cycle starts, the SoClean device begins generating
a large quantity of ozone gas that travels through the hose into
the CPAP's tank. From the CPAP tank, ozone travels to the face mask
and accumulates inside the SoClean's device chamber. During a
cleaning cycle, the SoClean device consistently generates
prohibited amounts of ozone by volume of air circulating through
the device and the CPAP machine. Ozone levels remain within the
CPAP mask, hose and tank after cleaning by the SoClean device,
causing damage to the component parts of the CPAP machine owned by
Plaintiff and other consumers, says the suit.
Packaging for the SoClean device does not disclose that the SoClean
device generates ozone or the levels of ozone generated, added the
suit.
SOCLEAN, INC. manufactures cleaning devices. The Company produces
automated continuous positive airway pressure (CPAP) cleaners and
sanitizers which improves health outcomes and quality of life for
those suffering from obstructive sleep apnea and other sleeping
disorders. [BN]
The Plaintiff is represented by:
Michael C. Rader, Esq.
Edward "Kip" Roberston, Esq.
Edward "Chip" Roberston, Esq.
James P. Frickleton, Esq.
BARTIMUS FRICKLETON ROBERTSON
RADER, P.C.
4000 W. 114th St., Suite 310
Leawood, KS 66211-2298
Telephone: (913) 266-2300
Facsimile: (913) 266-2366
Email: mrader@bflawfirm.com
krobertson@bflawfirm.com
crobertson@bflawfirm.com
jimf@bflawfirm.com
-and-
Brett Votava, Esq.
Andrew Nantz, Esq.
Todd Johnson, Esq.
VOTAVA, NANTZ & JOHNSON, LLC
9237 Ward Parkway, Suite 100
Kansas City, MO 64114
Telephone: (816) 895-8800
Facsimile: (816) 895-8801
Email: bvotava@vnjlaw.com
andrew@vnjlaw.com
tjohnson@vnjlaw.com
SOCLEAN INC: Ozone in CPAP Cleaner Unsafe for Humans, Carlile Says
------------------------------------------------------------------
Jerry Carlile, on behalf of himself and all others similarly
situated, Plaintiff, v. SoClean, Inc., Defendant, Case No.
21-cv-03562, (S.D. Tex., October 28, 2021), seeks actual damages,
attorneys' fees, costs, and any other just and proper relief
available resulting from fraud, breach of warranty, unjust
enrichment and for violation of Texas consumer protection laws.
SoClean manufactures and markets devices used to clean continuous
positive airway pressure (CPAP) machines, which are used to treat
sleep apnea. SoClean devices work by generating ozone to sterilize
and deodorize CPAP machines. Carlile alleges that ozone used is an
unstable toxic gas that causes respiratory problems in humans and
are not safe.
Carlile is the owner of a SoClean CPAP cleaning device.[BN]
Plaintiff is represented by:
Adam Q. Voyles, Esq.
McKenna Harper
LUBEL VOYLES LLP
675 Bering Dr., Suite 850
Houston, TX 77057
Tel: (713) 284-5200
Fax: (713) 284-5250
Email: adam@lubelvoyles.com
mckenna@lubelvoyles.com
- and -
Michael C. Rader, Esq.
Edward "Kip" Roberston, Esq.
Edward "Chip" Roberston, Esq.
James P. Frickleton, Esq.
BARTIMUS FRICKLETON ROBERTSON RADER, P.C.
4000 W. 114TH ST., SUITE 310
Leawood, KS 66211-2298
Tel: (913) 266-2300
Fax: (913) 266-2366
Email: mrader@bflawfirm.com
krobertson@bflawfirm.com
crobertson@bflawfirm.com
jimf@bflawfirm.com
SOCLEAN INC: Ozone in CPAP Cleaner Unsafe, Says Coley
------------------------------------------------------
Richard M. Coley, on behalf of himself and all others similarly
situated, Plaintiff, v. SoClean, Inc., Defendant, Case No.
21-cv-00472, (S.D. Ala., October 29, 2021), seek actual damages,
attorneys' fees, costs, and any other just and proper relief
available resulting from fraud, breach of warranty and unjust
enrichment.
SoClean manufactures and markets devices used to clean continuous
positive airway pressure (CPAP) machines, which are used to treat
sleep apnea. SoClean devices work by generating ozone to sterilize
and deodorize CPAP machines. Coley alleges that ozone used is an
unstable toxic gas that causes respiratory problems in humans and
are not safe.
Coley is the owner of a SoClean CPAP cleaning device.[BN]
Plaintiff is represented by:
Jubal L. Hamil, Esq.
DEAKLE, SHOLTIS & HAMIL, L.L.C.
Post Office Box 1031
Mobile, AL 36633
Telephone: (251) 432-6020
Facsimile: (251) 432-6071
Email: jhamil@dshfirm.com
SOGOU INC: Bid to Distribute Net Settlement Fund in Luo Suit OK'd
-----------------------------------------------------------------
The U.S. District Court for the Southern District of New York
grants the Lead Plaintiffs' Unopposed Motion for Distribution of
the Net Settlement Fund in the lawsuit entitled JIAJIA LUO, et al.,
Individually and On Behalf of All Others Similarly Situated,
Plaintiff v. SOGOU INC, SOHU.COM, INC., TENCENT HOLDINGS LIMITED,
XIAOCHUAN WANG, CHARLES (CHAOYANG) ZHANG, YUXIN REN, JOANNA
(YANFENG) LU, BIN GAO, JOSEPH CHEN, JANICE LEE, JAMES (XIUFENG)
DENG, CHI PING MARTIN LAU, DONALD J. PUGLISI, J. P. MORGAN
SECURITIES LLC, CREDIT SUISSE (USA) LLC, GOLDMAN SACHS (ASIA)
L.L.C., and CHINA INTERNATIONAL CAPITAL CORPORATION HONG KONG
SECURITIES LTD., Defendants, Case No. 1:19-cv-00230-LJL
(S.D.N.Y.).
The Court-appointed Lead Plaintiffs are Lizhen Zhang, Juean Xu,
Yuehua Ding, Maggie Xu, Mark S. Frater, and Ketan Patel. The Court
notes that capitalized terms which are not defined herein will have
the same meaning as in the Stipulation and Agreement of Settlement,
dated and filed on Dec. 8, 2020, or in the Evans Declaration.
District Judge Lewis J. Liman holds that the proposed final
Distribution Plan recommended by the Court-appointed Claims
Administrator in this matter, Strategic Claims Services ("SCS"),
and set forth in the Declaration of Sarah Evans Concerning the
Results of the Claims Administration Process (the "Evans
Declaration"), to distribute the proceeds of the Settlement Fund in
this Action to Settlement Class Members, is approved as fair and
reasonable.
Judge Liman rules that SCS's administrative determinations
accepting the claims as set forth in Exhibit B-1 of the Evans
Declaration, and accepting the additional late but otherwise valid
claims postmarked through and including June 30, 2021, as set forth
in Exhibit B-2 of the Evans Declaration, are approved, and such
claims are accepted. The administrative determinations of SCS
rejecting other claims, as set forth in Exhibits D and E of the
Evans Declaration, are approved, and such claims are rejected.
Any claims received by SCS after June 30, 2021, and any responses
to deficiency and/or rejection notices received by SCS after Oct.
20, 2021, are, and will be, rejected. SCS will be paid the
additional sum of $4,943.73 from the Settlement Fund for the
balance of its fees and expenses incurred (and yet to be incurred)
in connection with services performed, and to be performed, by SCS
in administering the Settlement and in distributing the Settlement
Fund to Settlement Class Members. The Defendants are not
responsible for any further costs related to administering or
distributing the Settlement Fund.
The balance of the Net Settlement Fund will be distributed to the
accepted claimants listed in Exhibits B-1 and B-2 to the Evans
Declaration, in accordance with the Plan of Allocation, no later
than 30 days after the entry of this Order.
The payments distributed to the accepted claimants will bear the
notation ""CASH PROMPTLY. VOID AND SUBJECT TO REDISTRIBUTION 180
DAYS AFTER ISSUE DATE." Lead Counsel and SCS are authorized to take
appropriate actions to locate and/or contact any eligible claimant
who has not cashed his, her or its distribution check within said
time;
If there is any remaining balance in the Settlement Fund after six
months from the date of the issuance of the payments reference in
paragraph 7 of this Order (whether by reason of tax refunds,
uncashed checks, or otherwise), (i) any such balance will be
reallocated among Authorized Claimants in an equitable fashion, if
logistically feasible and economically justifiable, and (ii) after
any such reallocation, any remaining balance be donated to The
Lawyers' Committee for Civil Rights Under Law, as provided in the
Stipulation, Judge Liman rules.
All persons involved in the review, verification, calculation,
tabulation, or any other aspect of the processing of the claims
submitted in this matter, or otherwise involved in the
administration of the Settlement Fund, including the Lead
Plaintiffs, Lead Counsel and SCS (the "Released Persons") are
released and discharged from any and all claims arising out of such
involvement, and all Settlement Class Members, whether or not they
receive payment from the Settlement Fund, are barred from making
any further claim against the Settlement Fund or any of the
Released Persons beyond the amount allocated to them pursuant to
this Order.
SCS is authorized to destroy paper or hard copies of the Proof of
Claim forms and supporting documents no less than one year after
the distribution of the Net Settlement Fund to eligible claimants,
and to destroy electronic or magnetic media data no less than three
years after the distribution of the Net Settlement Fund to the
eligible claimants.
The Court retains jurisdiction over any further application or
matter which may arise in connection with this Action.
A full-text copy of the Court's Order dated Oct. 28, 2021, is
available at https://tinyurl.com/zydp77k8 from Leagle.com.
STANDARD FIRE: Bid for Fees & Costs in Young Suit Partly Approved
-----------------------------------------------------------------
In the case, DIANE YOUNG, individually, Plaintiff v. THE STANDARD
FIRE INSURANCE COMPANY, a foreign COSTS insurance company,
Defendant, Case No. 2:18-CV-31-RMP (E.D. Wash.), Judge Rosanna
Malouf Peterson of the U.S. District Court for the Eastern District
of Washington issued an order:
a. granting in part and denying in part The Standard's Motion
for Award of Prevailing Party Fees and Costs and Entry of
Amended Judgment; and
b. denying Plaintiff Young's Motion for Attorney's Fees.
Background
The Plaintiff filed a First Amended Class Action Complaint on Sept.
13, 2018, in which she alleged claims on behalf of herself and a
putative class of individuals similarly situated for allegedly
unlawful bad faith acts and omissions by The Standard in
administering Personal Injury Protection ("PIP") insurance
benefits. The Court dismissed the Plaintiff's putative class
allegations on Sept. 30, 2019, and the case proceeded from then on
as an individual suit.
On Nov. 15, 2019, the Court denied the Plaintiff's Motion for
Reconsideration and Certification to the Washington State Supreme
Court, finding that the questions presented by the parties' Motions
for Partial Summary Judgment and the Defendant's Motion to Dismiss
turned on a fact-based inquiry into the context of the denial of an
insured's benefits. The Plaintiff had not shown that the questions
resolved by the Court in the Sept. 30, 2019 Order resolved any
legal ambiguity in Washington State law.
On June 12, 2020, the Court granted the Defendant's Motion for
Partial Summary Judgment, dismissing certain individual claims and
recognizing that the Plaintiff's individual claims for common law
bad faith, breach of contract, violation of Washington's Consumer
Protection Act ("CPA"), Revised Code of Washington ("RCW") Section
19.86, and negligence would be allowed to proceed. It entered
judgment for the Defendant on the Plaintiff's Insurance Fair
Conduct ("IFCA") claim, as well as her claims for injunctive relief
and intentional infliction of emotional distress. The Defendant's
Motion for Partial Summary Judgment did not seek resolution of the
Plaintiff's breach of contract, CPA, and bad faith claims.
On Sept. 28, 2020, the Court denied the Plaintiff's Second Motion
for Reconsideration or Certification to the Washington State
Supreme Court. It found that the Plaintiff had not shown that the
Court should reconsider the June 12, 2020 Partial Summary Judgment
Order, nor had the Plaintiff offered any authority supporting that
state law is ambiguous with respect to the issues resolved by that
Order.
Despite the early dispositive motion practice, the parties
continued to dispute the extent and nature of the remaining issues
for trial, through numerous motions in limine and objections to
proposed and final jury instructions.
On April 2, 2021, The Standard made the Plaintiff an Offer of
Judgment pursuant to Fed. R. Civ. P. 68. The Offer of Judgment
offered $100,000 for the settlement of "all contractual and
extra-contractual claims inclusive of all attorney's fees and
costs." By its terms, the offer was deemed withdrawn unless the
Plaintiff accepted the offer in writing within 14 days.
On the fourteenth day after receiving the Offer of Judgment, the
Plaintiff moved to strike the Offer of Judgment on the basis that
it was "an improper attempt to 'pick off' a named plaintiff in the
hopes of avoiding a class action lawsuit." The Court received
briefing and heard oral argument on the Plaintiff's Motion to
Strike, and denied it on the basis that the Offer of Judgment was
not filed at the time that the Plaintiff moved to strike it, and
controlling authority does not support the Plaintiff's assertion
that the Offer of Judgment is invalid because it places her own
interests in conflict with her intention to appeal the Court's
dismissal of her class allegations.
According to defense counsel, the Plaintiff's lowest settlement
demand was $875,000.
The Plaintiff's remaining claims proceeded to trial on Aug. 16 to
18, 2021. Pertinent to her CPA claim, the Plaintiff testified that
her occupation at the time that she was awaiting an independent
medical examination ("IME") and while Defendant was investigating
the Plaintiff's claims was caring for her mother in her home. She
testified that she was distraught over the lack of clarity as to
whether Defendant ultimately would pay for the treatment that she
was receiving in late 2017 and early 2018 and, due to that stress,
she resorted to hiring three people to come into her house to
perform tasks regarding caring for her mother that she otherwise
would have provided.
The Plaintiff did not offer any evidence other than her own
testimony to support that she incurred expenses regarding hiring
people to help take care of her mother.She declined to assign any
specific figure to her financial injury related to taking care of
her mother. The Plaintiff also did not testify regarding what, if
any, payments she had ever received from her mother or from any
other source for providing care to her mother, except to say that
she had to "pay a lot of it"1 out for caregivers. She did not offer
any documentary evidence that she had ever conducted a business or
ever received income through her role as caregiver. She also stated
that she had to pay out-of-pocket for her own medical care,
although she acknowledged that she had continued to receive her own
medical care and ultimately largely was reimbursed for treatment
that she received in fall 2017.
The jury found in the Plaintiff's favor on her bad faith, CPA, and
negligence claims. The jury awarded the Plaintiff $20,000 in bad
faith damages, $5,000 in CPA damages, and nothing for negligence
damages. The jury found that the Defendant did not breach its
insurance contract with the Plaintiff. On Aug. 19, 2021, the Court
entered Judgment in favor of the Plaintiff in the amount of
$25,000.
Through their respective motions, the Defendant seeks costs accrued
since the Offer of Judgment in the amount of $1,854.04, and the
Plaintiff seeks attorney's fees accrued from the outset of the case
through Sept. 23, 2021, in the amount of $908,161.
Discussion
A. Operation of Rule 68
The Defendant contends that it is entitled to costs that it
incurred after the Offer of Judgment, in the amount of $1,854.04,
and asks that the Court enters an amended judgment reducing the
Plaintiff's judgment from $25,000 to $23,145.96. It also argues
that it is the prevailing party, rather than the Plaintiff, by
operation of Rule 68.
The Plaintiff responds by renewing her arguments offered at the
time of her earlier Motion to Strike that the Defendant's Offer of
Judgment was invalid as "an improper attempt to 'pick off' a named
plaintiff in the hopes of avoiding a class action lawsuit." She
further argues that the authority cited in the Court's Order
Denying Plaintiff's Motion to Strike was distinguishable on the
facts because that case, addressed an offer of judgment regarding
that plaintiff's individual claim, while the Defendant's Offer of
Judgment was to resolve all of the Plaintiff's claims.
Judge Peterson holds that the Defendant is entitled to costs
accrued after April 2, 2021. Fed. R. Civ. P. 68(d), and she grants
the Defendant's Motion for Award of Prevailing Party Fees and Costs
in that part. She denies the Defendant's Motion with respect to
determining that the Defendant is a prevailing party or amending
the Judgment. She says, the Defendant is not the prevailing party,
as the jury found in the Plaintiff's favor on three of her four
claims. The Defendant also does not present a basis for finding
that post-offer attorney's fees would be awardable to it on an
equitable basis. Furthermore, the Defendant does not present
authority supporting entry of an amended judgment based on its
award of costs. An unaccepted offer of settlement is only
admissible for purposes of determining costs, not for purposes of
entering judgment for either party.
B. Defendant's Bill of Costs
The Plaintiff purports to object to the Defendant's cost bill, but
quarrels only with its entitlement to costs and does not specify an
objection to the amount sought by the Defendant for post-offer
costs. The Defendant filed a Proposed Bill of Costs with costs
incurred after April 2, 2021. Therefore, Judge Peterson finds the
Defendant's Bill of Costs is properly reviewable by the Clerk of
Court pursuant to LCivR 54.
C. Plaintiff's Attorney's Fees
As a preliminary matter, Judge Peterson notes that the Defendant
asks the Court to strike the Plaintiff's overlength Motion for
Attorney's Fees, or, in the alternative, asks the Court to excuse
the Defendant's own overlength response. The Plaintiff seeks an
award of attorney's fees accrued through her reply brief, filed on
Sept. 23, 2021. She seeks a total of $908,161 in attorney's fees,
including $7,056 for post-trial motion practice regarding fees and
costs.
Judge Peterson holds that the total amount that the Plaintiff seeks
in attorney's fees is more than 36 times her s recovery in damages
at trial. The requested fee award is more than 181 times the $5,000
awarded for the CPA claim by the jury.
Judge Peterson also finds minimal support in the Plaintiff's
testimony or evidence for the proposition that her caretaking
amounted to a "business." Even if the Court were to find that the
Plaintiff had established that she herself lost wages when she paid
a portion of money that would have gone to her to other people to
perform some of the caregiving duties for her mother, Washington
courts have found that lost wages are not injuries to business or
property as contemplated by the CPA. In addition, the Plaintiff did
not present any evidence of any loss of professional or business
reputation, loss of goodwill, or inability to tend to a business
establishment. Judge Peterson, therefore, finds that the jury's
verdict rests on the thinnest of evidence on her CPA claim, and the
Plaintiff should not be awarded attorney's fees under RCW 19.86.090
or as a matter of equity.
D. Plaintiff's Costs
Unlike the general rule that attorney's fees will be borne by each
party, costs generally are to be allowed as a matter of course to
the prevailing party, with certain limited exceptions. However, the
district court retains discretion to refuse to award costs.
Judge Peterson adheres to the default rule provided by Fed. R. Civ.
P. 54(d). She says, the Plaintiff will be permitted to resubmit her
proposed bill of costs for taxation of preoffer costs consistent
with Fed. R. Civ. P. 54 and LCivR 54.
Conclusion
The Defendant's Motion for Award of Prevailing Party Fees is
granted in part and denied in part. The oral argument on Nov. 19,
2021, is stricken, and the Plaintiff's Motion for Attorney's Fees
denied.
As the Defendant's cost bill includes only costs incurred in the
litigation after April 2, 2021, the Clerk of Court will proceed to
tax the Defendant's cost bill pursuant to LCivR 54. The Plaintiff
may submit a new bill of costs within 30 days of the Order. The
Plaintiff's cost bill will include only those costs incurred in the
litigation prior to April 2, 2021, that are properly taxable under
LCivR 54.
The District Court Clerk is directed to enter the Order, provide
copies to the counsel, and close the file.
A full-text copy of the Court's Oct. 27, 2021 Order is available at
https://tinyurl.com/294h4h6r from Leagle.com.
STATE STREET: Seeks Dismissal of Anti-trust Class Action Suit
-------------------------------------------------------------
Laura Matthews, writing for Risk.net, reports that lawyers for
foreign exchange trading venue Currenex, its parent State Street
and two other large market-makers, Goldman Sachs and HC Tech, have
asked a US judge to dismiss a class action lawsuit accusing the
four firms of striking secret priority trading deals. They cite
statutes of limitations and argue the claims are not supported by
facts. The alleged offences include fraud, racketeering and
conspiracy in violation of anti-trust laws. A key claim is that,
starting from at least 2005. [GN]
STEAK N SHAKE: Brown Slams Illegal Tip Pool
-------------------------------------------
Walter Brown, on behalf of himself and all others similarly
situated, Plaintiff, v. Steak N Shake Inc., Defendant, Case No.
21-c v-04474, (N.D. Ga., October 28, 2021), seeks minimum wages,
liquidated damages, attorneys' fees and costs under the Fair Labor
Standards Act.
Defendant operates a nationwide chain of full-service restaurants
under the trade name "Steak N Shake" where Brown worked as an
hourly-paid tipped waiter. He claims to be paid less than the
minimum wage and Steak N Shake utilized the tip credit to meet its
minimum wage obligation to its tipped workers.
However, tipped employees were also required to perform non-tipped
work while being compensated at the tip credit rate, says the
complaint. [BN]
Plaintiff is represented by:
Don J. Foty, Esq.
HODGES & FOTY, LLP
4409 Montrose Blvd, Ste. 200
Houston, TX 77006
Telephone: (713) 523-0001
Facsimile: (713) 523-1116
Email: dfoty@hftrialfirm.com
- and -
Anthony J. Lazzaro, Esq.
Lori M. Griffin, Esq.
Alanna Klein Fischer, Esq.
THE LAZZARO LAW FIRM, LLC
920 Rockefeller Building
614 W. Superior Avenue
Cleveland, OH 44113
Tel: (216) 696-5000
Fax: (216) 696-7005
Email: anthony@lazzarolawfirm.com
lori@lazzarolawfirm.com
alanna@lazzarolawfirm.com
- and -
Hans A. Nilges, Esq.
NILGES DRAHER LLC
7266 Portage Street, N.W., Suite D
Massillon, OH 44646
Telephone: (330) 470-4428
Facsimile: (330) 754-1430
Email: hans@ohlaborlaw.com
- and -
A. Lee Parks, Esq.
John L. Mays, Esq.
PARKS, CHESIN & WALBERT, P.C.
75 Fourteenth Street, 26th Floor
Atlanta, GA 30309
Telephone: (404) 873-8000
Facsimile: (404) 873-8050
Email: lparks@pcwlawfirm.com
jmays@pcwlawfirm.com
- and -
J. Russ Bryant, Esq.
Robert E. Morelli, III
JACKSON, SHIELDS, YEISER, HOLT, OWEN & BRYANT
262 German Oak Drive
Memphis, TN 38018
Telephone: (901) 754-8001
Facsimile: (901) 754-8524
Email: rbryant@jsyc.com
rmorellie@jsyc.com
T-MOBILE US: Two Proposed Data Breach Class Actions Paused
----------------------------------------------------------
Jake Holland, writing for Bloomberg Law, reports that two proposed
data breach class actions against T-Mobile US Inc. have been paused
after federal judges in California and Washington agreed to stays
pending a Judicial Panel on Multidistrict Litigation ruling on
transfer.
Staying the cases will promote judicial efficiency and won't unduly
prejudice the plaintiffs, Judge Beth Labson Freeman of the Northern
District of California and Judge Barbara J. Rothstein of the
Western District of Washington wrote in orders filed Oct. 29.
Attorneys representing the plaintiffs -- Henry Thang, of the
California lawsuit, and Veera Daruwalla, of the Washington lawsuit
-- didn't immediately respond to requests for comment. [GN]
TASTY BAKING: $3.15M Class Settlement in Caddick Suit Wins Approval
-------------------------------------------------------------------
In the case, WILLIAM CADDICK, STEPHEN HOPKINS, individually and on
behalf of all similarly situated individuals, Plaintiff v. TASTY
BAKING COMPANY, Defendant, Case No. 2:19-cv-02106-JDW (E.D. Pa.),
Judge Joshua D. Wolson of the U.S. District Court for the Eastern
District of Pennsylvania grants the parties' Joint Motion for
Approval of Proposed Class and Collective Action Settlement and
Motion for Attorney Fees, Litigation Expenses, and Service Awards.
Background
Tasty manufactures, distributes, and sells baked products. Tasty
entered into contracts with individual distributors, including
William Caddick, Stephen Hopkins, Raymond Keeler, and Anthony
Bertino ("Class Reps"), who purchased distribution rights to sell
and distribute Tasty products to customers. The Class Reps operate
in Pennsylvania, New Jersey, or Maryland.
Tasty classifies distributors, including the Class Reps, as
independent contractors. As a result, Tasty makes certain
deductions to distributors' weekly pay and does not pay them
overtime. The Class Reps contend that Tasty should have classified
them as employees and seek damages for unpaid overtime wages under
the FLSA and reimbursement for deductions that they contend were
unlawful under Pennsylvania, New Jersey, or Maryland law.
Messrs. Caddick and Hopkins filed suit in the Court on May 15,
2019, on behalf of themselves and a class of distributors. In their
Complaint, they alleged claims for unpaid overtime under the FLSA,
improper pay deduction under the Pennsylvania Wage Payment and
Collection Law, and recovery of certain expenses under the theory
of unjust enrichment. The Court dismissed the Plaintiffs' unjust
enrichment claim on Dec. 17, 2019.
On Jan. 24, 2020, the Court granted a motion for conditional
certification of the FLSA claims. The FLSA Collective includes "all
persons in the United States who, pursuant to a 'Distributor
Agreement' or a similar written contract, are or have performed
work as 'Distributors' for Tasty Baking Company during the period
commencing three years prior to the commencement of this action
through the close of the Court-determined opt-in period and who
file a consent to join this action pursuant to 29 U.S.C. Section
216(b)." As a result, the Plaintiffs provided FLSA notices, and 53
distributors opted in. The Parties conducted informal discovery,
which included interrogatories on all 53 FLSA opt-in plaintiffs.
Mr. Bertino filed a separate case in the District of New Jersey,
alleging class claims under the New Jersey Wage and Payment Law. On
Sept. 3, 2020, the Parties participated in a full-day mediation.
The mediation covered both this case and Mr. Bertino's case. The
Parties continued to negotiate after that mediation and eventually
reached a compromise. After additional negotiations, the Parties
agreed to broaden the scope of the settlement to include the
resolution of Maryland state law claims by addendum to the original
settlement agreement.
On Nov. 17, 2020, in light of the parties' settlement discussions,
the New Jersey Court transferred Mr. Bertino's action to the Court,
and the Court consolidated the cases. On Feb. 16, 2021, the Class
Reps filed a Second Amended Complaint that adds Mr. Keeler as a
party. Mr. Keeler brings Maryland Wage and Payment Collection Law
claims on behalf of himself and a class of Maryland distributors.
Pursuant to the terms of the settlement, Tasty will create a total
settlement fund of $3.15 million, which provides: (1) payments of
the settlement class members; (2) fees, costs, and expenses
associated with settlement administration; (3) service awards to
each of the named Plaintiffs in the amount of $5,000 each; (4)
attorneys' fees in the amount of $1,050.000.00; (5) additional
payment of $3,500 each to current distributors who sign, date, and
cash their settlement checks as consideration for agreeing to the
terms of the arbitration agreement.
In exchange, the Plaintiffs and any members of the collective or
the class who choose to participate in the settlement agree to
release Tasty from any claims they could have brought under state
or federal law based on the alleged misclassification of putative
members and FLSA collective members as independent contractors and
agree to keep parts of the settlement confidential.
The Parties sought preliminary approval of the settlement agreement
on Feb. 26, 2021. On April 12, 2021, the Court granted preliminary
approval of the settlement and preliminarily certified the state
law classes. The classes include "individuals who operated under a
distribution agreement with Tasty out of a warehouse in either
Pennsylvania, New Jersey, or Maryland and who did not previously
sign individually, or on behalf of a business entity, a distributor
agreement or an amendment containing an arbitration agreement with
a class action waiver." The statute of limitations determines the
relevant period for each state class.
The settlement applies to 281 potential class and collective
members. The Court appointed Atticus Administration to administer
the settlement, including mailing notice. Atticus mailed the class
settlement notice via U.S. First Class mail to 277 absent class
members (i.e., the distributors other than the Class Reps). The
Postal Service returned eight of those notices to Atticus as
undeliverable and without a forwarding address. Atticus performed
skip tracing and obtained addresses for four of the eight. The
remaining four did not receive notices. No individual objected to
the class settlement. Initially, only one individual excluded
himself from the class.
On June 16, 2021, the parties filed a Joint Motion for Approval of
Proposed Class and Collective Action Settlement and a Motion for
Attorney Fees, Litigation Expenses, and Service Awards. The Court
held a fairness hearing on Aug. 12, 2021. At that hearing, the
Court expressed concern that the settlement paid the same
compensation to class members who opted in to the FLSA Collective
and to class members who did not because opt-in collective members
provided released FLSA claims but class members did not.
At the Court's urging, the Parties provided supplemental notice to
the FLSA opt-ins who would be releasing both FLSA claims and state
wage-and-hour claims to inform them that they were giving a broader
release than class members who did not opt into the FLSA but
getting the same compensation. That notice gave recipients a
renewed opportunity to opt out or object to the settlement. No one
objected, but two more class members opted out. As a result, there
are 225 class members, 45 class and FLSA collective members, 4 FLSA
collective members, and 4 named Plaintiffs.
Discussion
A. Certifications
1. Class certification
At the preliminary approval stage, the Court preliminarily
certified the Pennsylvania, Maryland, and New Jersey classes. For
the reasons stated in the Court's memorandum granting preliminary
approval, the Pennsylvania, Maryland, and New Jersey classes meet
the class certification requirements under Rule 23(a) and (b), even
under the more rigorous final-fairness-stage standard. Judge Wolson
will therefore certify state classes for settlement purposes.
2. Collective certification
Judge Wolson finds that all members of the proposed collective work
as distributors for Tasty. They all allege that Tasty classified
its distributors as independent contractors rather than as
employees. As a result, they all seek damages in the form of unpaid
overtime work under the FLSA. Finally, all of the collective
members have the same circumstances of employment—they are all
subject to the same policies and standards and perform the same job
duties. Judge Wolson will therefore certify the FLSA collective.
B. Notice
The settlement administrator distributed notices to all the class
members. In its preliminary approval determination, the Court
concluded that "the notice program is robust and is likely to
ensure that all members receive notice of the claims and their
rights with respect to the settlement." The notice program provided
for individualized notices to each class member, explained the
details of the litigation and the proposed settlement, allowed for
settlement participants to raise objections to and opt-out from the
settlement. Moreover, after verifying recipients' addresses, over
98% of the class members received their personalized notice by
direct mail. In addition, the parties provided supplemental notice
after the final approval hearing to ensure that opt-ins understood
the scope of the release that they are providing. Judge Wolson
concludes that the Plaintiffs have provided sufficient evidence of
compliance with the notice requirements.
C. Final Settlement Approval
Judge Wolson holds that the release provision releases Tasty from
"any and all FLSA claims in addition to all claims" based on the
alleged misclassification of the Plaintiffs as independent
contractors. Because the release includes all FLSA claims,
including claims for future violations, it is too broad and
frustrates the purpose of the FLSA. Judge Wolson limits the scope
of the release to claims under the FLSA concerning classification
of distributors as independent contractors.
Judge Wolson approves the settlement agreement except the
confidentiality clause. Because the confidentially agreement at
issue in the case prohibits the Plaintiffs from disclosing their
settlement amounts to anyone, including to their coworkers, the
Court concluded that "in its current state, the confidentially
agreement is too broad." Judge Wolson finds that the parties have
not cured this deficiency. The confidentiality provision in its
current form still prohibits collective members from disclosing
their settlement amount. Judge Wolson cannot approve a
confidentiality provision that prohibits the Plaintiffs from
sharing information about the settlement agreement. For these
reasons, he approves the settlement agreement except the
confidentiality clause.
D. Attorneys' Fees and Expenses
In requesting one-third of the gross settlement fund, the class
counsel seeks an award in the middle of the usual range.
Judge Wolson finds that the lodestar crosscheck confirms that the
requested attorneys' fees are reasonable. The class counsel
calculated lodestar of $475,280 upon their usual hourly billing
rates. However, because the Court must analyze whether the rates
are reasonable in light of the geographical area, the nature of the
services provided, and the experience of the lawyers, Judge Wolson
has utilized the fee schedule developed by Philadelphia Community
Legal Services and calculated a lodestar of $456,757. If the fee
award to the Class counsel is $1.05 million as requested, the
lodestar multiplier will be 2.20 using the Plaintiffs' lodestar and
2.29 using the CLS schedule. Both multipliers fall within the
generally accepted range and confirm the reasonableness of the fee
award. Thus, Judge Wolson approves the proposed fee.
The class counsel has adequately documented their expenses, which
amount to a total of $21,529 and comprise costs associated with,
among other things, providing notice to the FLSA collective and
pre-settlement mediation. Thus, Judge Wolson approves the proposed
class counsel's recoupment of costs.
As to the service awards, Judge Wolson holds that the $5,000 awards
for Class Reps are fair and reasonable as there is a substantial
basis to establish the services they provided during litigation. As
the Court has noted before, individuals who serve as named
plaintiffs in employment rights cases do so at the risk of their
current and future employment. Aside from taking the risk, the
Class Reps also provided invaluable service in aid of the
Plaintiffs' prosecution of the matter. Service awards are
warranted, and a modest award of $5,000 is within the range of
similar awards approved in other collective/class actions in the
district. Judge Wolson, therefore, awards the requested service
awards.
Conclusion
Judge Wolson approves the settlement agreement, including the
service awards to the Class Reps and attorneys' fees and expenses.
But he narrows the confidentiality and release provisions of the
Settlement Agreement. An appropriate Order follows.
A full-text copy of the Court's Oct. 27, 2021 Memorandum is
available at https://tinyurl.com/5n2k2xt7 from Leagle.com.
TENCENT MUSIC: Faruqi & Faruqi Reminds of December 27 Deadline
--------------------------------------------------------------
Faruqi & Faruqi, LLP, a leading national securities law firm, is
investigating potential claims against Tencent Music Entertainment
Group ("Tencent" or the "Company") (NASDAQ: TME) and reminds
investors of the December 27, 2021 deadline to seek the role of
lead plaintiff in a federal securities class action that has been
filed against the Company.
If you suffered losses exceeding $50,000 investing in Tencent stock
or options between March 22, 2021 and March 29, 2021 and would like
to discuss your legal rights, call Faruqi & Faruqi partner Josh
Wilson directly at 877-247-4292 or 212-983-9330 (Ext. 1310). You
may also click here for additional information:
www.faruqilaw.com/TME.
There is no cost or obligation to you.
Faruqi & Faruqi is a leading minority and Woman-owned national
securities law firm with offices in New York, Delaware,
Pennsylvania, California and Georgia.
According to the Complaint, Goldman Sachs and Morgan Stanley sold a
large amount of Tencent shares during the Class Period while in
possession of material, non-public information about Archegos and
its need to fully liquidate its position in the Company because of
margin call pressure. As a result of these sales, Defendants
Goldman Sachs and Morgan Stanley avoided billions in losses
combined.
On this news, shares of Tencent Music Entertainment Group stock
fell over 33% during the week of March 22, 2021 to March 29, 2021.
The court-appointed lead plaintiff is the investor with the largest
financial interest in the relief sought by the class who is
adequate and typical of class members who directs and oversees the
litigation on behalf of the putative class. 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. Your ability to share in any
recovery is not affected by the decision to serve as a lead
plaintiff or not.
Faruqi & Faruqi, LLP also encourages anyone with information
regarding Tencent's conduct to contact the firm, including
whistleblowers, former employees, shareholders and others. [GN]
TEXTRON INC: IWA Forest Fund Putative Class Suit Underway
---------------------------------------------------------
Textron Inc. said in its Form 10-Q Report filed with the Securities
and Exchange Commission on October 28, 2021, for the quarterly
period ended October 2, 2021, that the company continues to defend
a purported securities class action suit headed by IWA Forest
Industry Pension Fund entitled, In re Textron Inc. Securities
Litigation.
On August 22, 2019, a purported shareholder class action lawsuit
was filed in the United States District Court in the Southern
District of New York against Textron, its Chairman and Chief
Executive Officer and its Chief Financial Officer.
The suit, filed by Building Trades Pension Fund of Western
Pennsylvania, alleges that the defendants violated the federal
securities laws by making materially false and misleading
statements and concealing material adverse facts related to the
Arctic Cat acquisition and integration. The complaint seeks
unspecified compensatory damages.
On November 12, 2019, the Court appointed IWA Forest Industry
Pension Fund as the sole lead plaintiff in the case.
On December 24, 2019, IWA filed an Amended Complaint in the now
entitled In re Textron Inc. Securities Litigation. On February 14,
2020, IWA filed a Second Amended Complaint, and on March 6, 2020,
Textron filed a motion to dismiss the Second Amended Complaint.
On July 20, 2020, the Court granted Textron's motion to dismiss and
closed the case. On August 18, 2020, plaintiffs filed a notice of
appeal contesting the dismissal, which Textron opposed.
On September 17, 2021, the Second Circuit Court of Appeals narrowed
the case, unanimously upholding dismissal of most of the Second
Amended Complaint, but reversing dismissal of one aspect of the
Second Amended Complaint and remanding that remaining portion back
to the District Court for further proceedings.
Textron said, "We intend to continue to vigorously defend this
lawsuit."
Textron Inc. is one of the world's best-known multi-industry
companies, recognized for its powerful brands such as Bell, Cessna,
Beechcraft, E-Z-GO, Arctic Cat and many more. The company leverages
its global network of aircraft, defense, industrial and finance
businesses to provide customers with innovative products and
services. The company is based in Providence, Rhode Island.
TOOTSIE ROLL: Court Modifies Class Certification Schedule in Maisel
-------------------------------------------------------------------
In the class action lawsuit captioned as ELIZABETH MAISEL v.
TOOTSIE ROLL INDUSTRIES, LLC, Case No. 3:20-cv-05204-SK (N.D.
Cal.), the Court entered an order that the briefing and hearing
schedule for Plaintiff's motion for class certification, discovery
cut-off dates, dispositive motion deadlines, the pre-trial
conference hearing and the trial date will be modified as follows:
1. Class Certification Deadlines
Event Date
-- Plaintiff's class certification April 8, 2022
motion
-- Defendant's class certification May 9, 2022
opposition
-- Plaintiff's class certification June 9, 2022
reply
-- Hearing June 20, 2022
2. Discovery Deadlines
Event Current Date New Date
-- Non-expert discovery April 29, 2022 June 27, 2022
cut-off
-- Initial expert May 13, 2022 July 11, 2022
disclosures
-- Rebuttal expert June 10, 2022 Aug. 8, 2022
disclosures
-- Expert discovery July 01, 2022 Aug. 23, 2022
cut-off
Tootsie Roll Industries is an American manufacturer of
confectionery. Its best-known products have been Tootsie Rolls and
Tootsie Pops.
A copy of the Court's order dated Nov. 1, 2021 is available from
PacerMonitor.com at https://bit.ly/3EXf754 at no extra charge.[CC]
TREATMENT ASSESSMENT: Class Cert. Bid Filing Extended in Briggs
---------------------------------------------------------------
In the class action lawsuit captioned as Deshawn Briggs, et al., v.
Treatment Assessment Screening Center Incorporated (TASC), Case No.
2:18-cv-02684-EJM (D. Ariz.), the Hon. Judge Eric J. Marcovich
entered an order granting the parties' joint motion to amend
scheduling order for extension of time to submit filings related to
Plaintiffs' motion for sanctions and motion for class
certificationas follows:
1. The Plaintiffs' reply in support of their motion for
sanctions shall be due on or before November 22, 2021.
2. The remaining dates and deadlines set forth in the Court's
Order at ECF No. 325 are vacated and the new deadlines are
set forth as follows in bold below:
a. Response to Motion for Class Certification: December 9,
2021
b. Reply in Support of Motion for Class Certification:
January 14, 2022.
TASC operates as a non-profit organization. The Organization offers
substance abuse, mental health, screenings, drug and alcohol
education, drug testing, and behavioral health programs. TASC
serves customers in the States of Arizona.
A copy of the Court's order dated Nov. 2, 2021 is available from
PacerMonitor.com at https://bit.ly/303PKzE at no extra charge.[CC]
TRISTAR PRODUCTS: Sells Defective Air Fryers, Velez Suit Alleges
----------------------------------------------------------------
ROBIN VELEZ and KAREN BURKE, individually and on behalf of all
others similarly situated, Plaintiffs v. TRISTAR PRODUCTS, INC.,
Defendant, Case No. 1:21-cv-23909-MGC (S.D. Fla., November 5, 2021)
is a class action against the Defendant for breach of express
warranty, breach of implied warranty, breach of contract, unjust
enrichment, negligence, fraudulent concealment, and violations of
Florida's Deceptive and Unfair Trade Practices Act and New Jersey
Consumer Fraud Act.
According to the complaint, the Defendant is engaged in false,
deceptive, and misleading advertising, labeling, and marketing of
the Emeril Lagasse Power Air Fryer 360 models. The air fryers
become overheated due to improper circulation of air and fail to
prevent drippings from coming into contact with the heating
elements due to poor drip tray design. The Defendant has long known
about the defect, but has failed to disclose it to consumers,
instead waiting for consumers to complain that their air fryers
overheat, catch fire, or smoke. As a result of Tristar's alleged
concealment of the defect, the Plaintiffs purchased and used
Tristar's defective and unsafe air fryers when they otherwise would
not have made such purchases or would not have subsequently used
the air fryers.
Tristar Products, Inc. is a manufacturer of consumer products, with
its principal place of business located in Santa Rosa Beach,
Florida. [BN]
The Plaintiffs are represented by:
Rachel Soffin, Esq.
MILBERG COLEMAN BRYSON PHILLIPS GROSSMAN LLP
800 S. Gay Street, Suite 1100
Knoxville, TN 37929
Telephone: (865) 247-0080
Facsimile: (865) 522-0049
E-mail: rsoffin@milberg.com
- and –
Harper T. Segui, Esq.
MILBERG COLEMAN BRYSON PHILLIPS GROSSMAN LLP
825 Lowcountry Blvd., Suite 101
Mt. Pleasant, SC 29464
Telephone: (919) 600-5000
E-mail: hsegui@milberg.com
- and –
Erin Ruben, Esq.
MILBERG COLEMAN BRYSON PHILLIPS GROSSMAN LLP
900 W. Morgan Street
Raleigh, NC 27603
Telephone: (919) 600-5000
E-mail: eruben@milberg.com
UBER TECHNOLOGIES: Promotions Overcharge Customers, Washington Says
-------------------------------------------------------------------
ANITA WASHINGTON, individually and on behalf of all others
similarly situated, Plaintiff v. UBER TECHNOLOGIES, INC.,
Defendant, Case No. 1:21-cv-09157 (S.D.N.Y., November 5, 2021) is a
class action against the Defendant for breach of contract,
conversion, unjust enrichment, and violation of the New York
General Business Law.
The case arises from the Defendant's issuance of promotions under
the Uber Eats brand. In issuing promotions, the Defendant
calculates sales tax based on the price of the food items prior to
applying the promotional discount, which overcharges its customers.
The Defendant's promotions are the equivalent of store-issued
coupons, because it is incentivizing purchasers to use its delivery
service, instead of rivals. Had the Plaintiff and Class members
known the truth, they would not have paid Uber Eats excess sales
tax, and would have kept that money for themselves, added the
suit.
Uber Technologies, Inc. is an American mobility as a service
provider based in San Francisco, California. [BN]
The Plaintiff is represented by:
Spencer Sheehan, Esq.
SHEEHAN & ASSOCIATES, P.C.
60 Cuttermill Rd Ste 409
Great Neck, NY 11021
Telephone: (516) 268-7080
Facsimile: (516) 234-7800
E-mail: spencer@spencersheehan.com
- and –
James Chung, Esq.
LAW OFFICE OF JAMES CHUNG
43-22 216th Street
Bayside, NY 11361
Telephone: (718) 461-8808
Facsimile: (929) 381-1019
E-mail: jchung_77@msn.com
UNITED STATES: Ackerman & Son Renews Bid to Certify Class Action
----------------------------------------------------------------
In the class action lawsuit captioned as ACKERMAN & SON LLC;
ACKERMAN BROTHERS FARMS, LLC; BACK ROAD FARMING, INC.; et al., v.
UNITED STATES DEPARTMENT OF AGRICULTURE, RISK MANAGEMENT AGENCY, et
al., Case No. 1:17-cv-11779-TLL-PTM (E.D. Mich.), the Plaintiffs
ask the Court to enter an order granting their renewed motion to
certify the case as a class action pursuant to Federal Rule of
Civil Procedure 23(b) and to appoint their counsel as Class Counsel
pursuant to Rule 23(g).
The Plaintiffs move to certify a class consisting of:
"all policyholders of 2015 Dry Bean Revenue Endorsement
(DBRE) policies insuring pea (navy) beans and small red beans
in the Eastern District of Michigan in 2015."
The Plaintiffs' original Motion for Class Certification was filed
April 29, 2019. The Plaintiffs' Second Amended Complaint was filed
April 30, 2018. The Second Amended Complaint sought declaratory and
injunctive relief, alleging that Defendants Risk Management Agency
(RMA), Federal Crop Insurance Corporation (FCIC), and United States
Department of Agriculture (USDA) acted in a way that was arbitrary
and capricious, an abuse of discretion, contrary to statutes and
other law, not observant of procedure required by law, and
unwarranted by the facts.
Ackerman & Son, L.L.C. is in the Cash Grain Crops Market
Preparation Services business.
The United States Department of Agriculture is the federal
executive department responsible for developing and executing
federal laws related to farming, forestry, rural economic
development, and food.
The Risk Management Agency is an agency of the U.S. Department of
Agriculture, which manages the Federal Crop Insurance Corporation.
A copy of the Plaintiff's motion dated Nov. 2, 2021 is available
from PacerMonitor.com at https://bit.ly/3H6zRsW at no extra
charge.[CC]
The Plaintiffs are represented by:
John D. Tallman, Esq.
JOHN D. TALLMAN, PLC
4020 East Beltline Avenue N.E. -- Suite 101
Grand Rapids, MI 49525
Telephone: (616) 361-8850
Facsimile: (616) 361-8945
E-mail: jtallmanlaw@gmail.com
UNITED STATES: Court Certifies Class in Torres Suit Against Navy
----------------------------------------------------------------
In the case, OSCAR D. TORRES, on behalf of himself and others
similarly situated, Plaintiffs v. CARLOS DEL TORO, in his official
capacity as Secretary of the Navy, Defendant, Case No.
1:21-cv-306-RCL (D.D.C.), Judge Royce C. Lamberth of the U.S.
District Court for the District of Columbia grants the motion for
class certification and appointment of class counsel.
Background
The case is about the process by which the Navy can discharge
disabled Service members. When a disabled Service member faces
discharge, the Navy assigns a disability level to that member to
determine whether they will be medically "separated" or "retired."
The distinction matters -- Service members who are "medically
retired" receive monthly disability payments in perpetuity, rights
to medical care from the military department at issue, and
commissary privileges for the Service member and his or her family.
Service members who are "medically separated" do not receive these
same benefits.
The Plaintiff, Sergeant Oscar D. Torres (Ret.), filed the putative
class action against the Secretary of the Navy in his official
capacity to challenge the Navy's former "Properly Referred" policy,
which governed the Navy's review process for determining a Service
member's disability level. Under the Navy's policy, the board
evaluating a soldier's military retirement would consider only
those medical conditions "properly referred" by an intermediate
evaluation board and complying with the policy's referral
requirements.
The Plaintiff contends that the policy violated Congress's and the
Department of Defense's instructions and wrongfully resulted in a
"medically separated" designation when he was discharged from the
Navy.
On behalf of himself and others, the Plaintiff seeks declaratory
and injunctive relief to obtain a "do-over" of that disability
determination, unencumbered by the Navy's allegedly unlawful
policy.
On July 2, 2021, the Plaintiff moved to certify a class and appoint
class counsel. The Plaintiff and the Defendant agree that the Court
can certify the following class: All veterans of the United States
Navy and Marine Corps whose final Physical Evaluation Board
occurred between Sept. 12, 2016, and June 11, 2018 who claimed
additional conditions in the applicable section of the joint DOD/VA
claim form (VA Form 21-0819)* that were not listed on the
last-dated NAVMED Form 6100/1 signed by the Convening Authority and
who did not receive a medical retirement through the IDES. *For
example, Section III, Item 11 on VA Form 21-0819 (Oct 2009); and
Section III, Item 8 on VA Form 21-0819 (June 2009).
While the parties agree that the Court can certify a class and
appoint class counsel, they dispute the class' common question of
law and the number of members in the class. The Plaintiffs argue
that the class' common question of law is "whether the Navy's
failure to consider all claimed conditions -- limiting its review
to those conditions that were 'properly referred'-- between
September 2016 and June 2018 is and was arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with law, and
without observance of procedures required by law."
In response, the Defendant argues that the proper question is
"whether the Navy could review some claimed conditions through the
Medical Evaluation Board ("MEB") only, or if the MEB was required
to forward every condition to the Physical Evaluation Board ("PEB")
for a separate evaluation." And while the Plaintiff proposes that
there are 10,000 similarly situated Service members, the Defendant
estimates, based on a review of Navy records, that the size of the
putative class is 3,776 individuals.
Discussion
While the parties in the case agree that the Court may certify the
class, certification is proper only if the Court "is satisfied,
after a rigorous analysis, that the prerequisites of Rule 23(a)
have been satisfied."
Judge Lamberth finds that Rule 23(a)'s requirements -- numerosity,
commonality, typicality, and adequacy of representation -- are
satisfied. And the Plaintiff has demonstrated that the Court can
certify this class under Rule 23(b)(2).
Conclusion
Based on the foregoing, Judge Lamberth grants the motion for class
certification and appointment of class counsel by separate order.
She certifies the requested class. She appoints Plaintiff Torres as
the class representative and the Plaintiffs' counsel from the
National Veterans Legal Services Program and the law firm Perkins
Coie LLP as the Class Counsel.
A full-text copy of the Court's Oct. 27, 2021 Memorandum Opinion is
available at https://tinyurl.com/4jjp47kw from Leagle.com.
UNITED STATES: Goverment Set to Pay Separated Immigrant Families
----------------------------------------------------------------
A.G. Gancarski, writing for FloridaPolitics.com, reports that the
federal government is poised to pay members of families separated
at the U.S./Mexican border nearly half a million dollars per
person. And a U.S. Senator from Florida objects.
"What are we thinking? Why would we be doing this? They broke our
laws. These individuals broke the laws of the United States of
America, and then the (Joe) Biden administration wants to write
them a check," Scott thundered on Fox News.
"The same administration wants to snoop into your bank account and
take more of your money," Scott added, responding to proposals for
increased IRS transaction monitoring on bank accounts. "This is
wrong."
Scott isn't the only Florida leader to blast potential compensation
for these individuals.
Gov. Ron DeSantis called the proposed payouts a "slap in the face"
to American citizens.
"I've seen a lot in my day. I've seen a lot that's happened in the
last nine or 10 months that I never thought I'd see. But this takes
the cake. If that is done, that is going to be a slap in the face
to every hardworking American," DeSantis said on Oct. 29 in Lake
County.
The Governor said he was "very, very concerned about reports; I
think it was in The Wall Street Journal, that the Biden
administration is going to pay with tax dollars hundreds of
millions of dollars to people who came to our country illegally
across the southern border as 'damages.'"
The American Civil Liberties Union filed a class-action lawsuit in
2019 on behalf of people separated from their families during the
Donald Trump administration, and the move appears to be for
settlement with aggrieved parties. If a parent and a child were
separated, each could receive the $450,000 compensation from the
U.S. Departments of Justice, Homeland Security, and Health and
Human Services.
NBC News reports 5,600 children were separated from parents during
the Trump era, with 1,000 families still separated. Though an ACLU
lawyer says the punitive policy "deliberately traumatized" these
families, for DeSantis, that issue seemed more ancillary on Oct.
29.
"It'll especially be a slap in the face to people that have
immigrated legally to this country," DeSantis adds. "That should
not be allowed to stand. It's wrong, and whatever we can do in
Florida to fight back against it, we will do." [GN]
UNITED STATES: Must Respond to Johnson Class Cert Bid by Jan. 18
----------------------------------------------------------------
In the class action lawsuit captioned as MARTIN JOHNSON, et al., v.
FRANK KENDALL, Secretary of the Air Force, Case No.
3:21-cv-01214-CSH (D. Conn.), the Hon. Judge Charles S. Haight, Jr.
entered an order that Defendant shall respond both to Plaintiffs'
complaint and to Plaintiffs' motion to certify the class on or
before January 18, 2022.
The Court understands Plaintiffs' allegations of harm resulting
from any deferral of Defendant's time to respond to the class
certification motion to be an argument that an extension of time
would be prejudicial. Yet Plaintiffs' allegations of additional
substantial harm resulting from any extension of time are entirely
threadbare.
The Plaintiffs also give no indication that an extension of time
will prejudice their ability to prosecute this case. The Court
therefore cannot credibly conclude that an extension of time will
be prejudicial. The Plaintiffs clearly would prefer to proceed with
their class claims on an expedited basis. However, at the outset of
any case, the Federal Rules afford greater solicitude to the United
States, its agencies, and its officers than they do to ordinary
litigants. Whether that solicitude always is warranted is not a
matter for this Court to decide: Congress has deemed it proper, and
the Court will observe it.
A copy of the Court's order dated Nov. 1, 2021 is available from
PacerMonitor.com at https://bit.ly/3BUDDC7 at no extra charge.[CC]
UNITED STATES: NH Emergency Room Boarding Class Action Okayed
-------------------------------------------------------------
Garry Rayno, writing for Eagle Tribune, reports that a federal
appeals court sided with patients in mental health crises held
against their will in hospital emergency rooms and allowed a
federal class action lawsuit to go forward.
The suit filed in U.S. District Court against the state Department
of Health and Human Services and its Commissioner Lori Shibinette
claims patients held under the state's involuntary emergency
admission law are not given their due process rights as required
under state and federal law.
The state claims the plaintiffs, individuals held for longer than
three days in an admitting facility, and state hospitals, lack
standing to bring the suit and have not proven the state is
responsible for the failure to hold due process hearings within the
required three days.
But the three-member panel of the US First Circuit Court of Appeals
rejected the state's contention and remanded the case back to the
U.S. District Court along with a new state argument that the
federal suit is moot because of a state Supreme Court decision on
similar issues.
In the complaint filed by John Doe/Jane Doe, plaintiffs argued the
state agency is responsible for holding them in hospital emergency
rooms while they wait to be admitted to a psychiatric hospital,
usually New Hampshire State Hospital.
Under the state's involuntary commitment law, a person who is a
danger to his or herself or others, may be involuntarily committed
and must have a probable cause hearing before a judge within three
days of being admitted to continue to be held.
In many cases, people are held much longer than three days as they
wait for a bed to open in a psychiatric hospital, some as long as
four weeks, without a probable cause hearing.
Hospitals claim they are required to provide services to the
patients while they are held, and seek restitution and redress.
After the U.S. District Court in Concord dismissed a motion to
dismiss the suit by the state, and allowed the case to move
forward, the state appealed the decision saying the agency and
commissioner were immune from suit under the federal constitution's
11th amendment and the plaintiff lacked standings.
Instead the state argued that the defendants should be state
circuit courts, law enforcement, the state legislature and the
hospitals not the agency or commissioner who do not have authority
to enforce the law.
"(The Commission) argues that the state circuit court system, law
enforcement, the state legislature, and private hospitals are
responsible for the class plaintiffs' claimed injury, because they
are the ones responsible for failing to hold a hearing, failing to
transport patients to a hearing, failing to appropriate enough
money to expand the number of beds at receiving facilities, and the
control of emergency departments, respectively," according to the
decision by Justice David Barron.
Hospitals claimed the commissioner has forbidden the release of the
patients once they are admitted to an emergency room for emergency
mental health services and makes the agency responsible for their
care.
The court sided with the hospitals and the plaintiffs saying they
do have standing as their federal rights to due process are being
violated as well as under state law.
The state also argued the recent state Supreme Court decision in
Jane Doe required the state to hold probable cause hearings within
three days and Gov. Chris Sununu issued an executive order to
expedite hearings and various other actions to address the court
decision.
The plaintiffs argued the ruling was narrow and there are no
guarantees the agency would meet its requirements and the ACLU-NH,
which filed the suit on behalf of the plaintiff, argued despite the
ruling people continue to be warehoused in emergency rooms waiting
for rooms to open at psychiatric hospitals.
The appeals court said the moot issue should be included when the
U.S. District Court hears the remanded case.
"We are dubious that every claim in this case is moot, especially
given the limited scope of Jane Doe -- for example, Jane Doe did
not address any issues implicated by the Takings Clause. But,
rather than resolve this newly raised issue on appeal, we conclude
that it is prudent to leave it to the District Court to address it
in the first instance on remand," according to the ruling. [GN]
UNIVERSAL PROTECTION: Fails to Pay Proper Wages, Bassett Alleges
----------------------------------------------------------------
MICHAEL BASSETT, individually and on behalf of all others similarly
situated, Plaintiff v. UNIVERSAL PROTECTION SERVICE, LLC,
Defendant, Case No. 4:21-cv-00112-JHM-HBB (W.D. Ky., Oct. 27, 2021)
seeks to recover from the Defendants unpaid wages and overtime
compensation, interest, liquidated damages, attorneys' fees, and
costs under the Fair Labor Standards Act.
Plaintiff Bassett was employed by the Defendant as security guard.
UNIVERSAL PROTECTION SERVICE, LLC provides security solutions. The
Company specializes in the design, installation, and monitoring of
security and fire monitoring systems. [BN]
The Plaintiff is represented by:
Mark N. Foster, Esq.
LAW OFFICE OF MARK N. FOSTER, PLLC
P.O. Box 869
Madisonville, KY 42431
Telephone: (270) 213-1303
Email: Mfoster@MarkNFoster.com
VERACITY LLC: Alfaro Sues Over Construction Workers' Unpaid OT
--------------------------------------------------------------
HECTOR ALFARO, individually and on behalf of all persons similarly
situated, Plaintiff v. VERACITY, LLC and CRAIG FLIGEL,
individually, Defendants, Case No. 2:21-cv-19237 (D.N.J., October
22, 2021) is a class and collective action complaint brought
against the Defendants for their alleged violations of the Fair
Labor Standards Act (FLSA) and the New Jersey State Wage Payment
Law.
The Plaintiff was employed by the Defendants as a full-time
non-exempt construction worker beginning in or about April 2017
until the present.
The Plaintiff claims that although he regularly worked anywhere
from 70 to over one hundred hours per work week during his
employment with the Defendants, the Defendant denied him of
overtime compensation at the rate of one and one-half times his
regular rate of pay for all hours he worked in excess of 40 per
workweek. Accordingly, all similarly situated employees of the
Defendants are also owed overtime pay for each and every overtime
hour they worked and were not properly paid. As a result of the
Defendants' unlawful pay practices and policies, the Plaintiff and
other similarly situated employees have suffered damages.
Veracity, LLC operates a stone fabrication company. Craig Fligel is
the owner of the company. [BN]
The Plaintiff is represented by:
Andrew I. Glenn, Esq.
Jodi J. Jaffe, Esq.
JAFFE GLENN LAW GROUP, P.A.
300 Carnegie Center, Suite 150
Princeton, NJ 08540
Tel: (201) 687-9977
Fax: (201) 595-0308
E-mail: aglenn@jaffeglenn.com
jjaffe@jaffeglenn.com
VIPSHOP HOLDINGS: Lieff Cabraser Reminds of December 13 Deadline
----------------------------------------------------------------
The law firm of Lieff Cabraser Heimann & Bernstein, LLP on Nov. 1
disclosed that class action litigation has been filed on behalf of
investors who purchased or otherwise acquired American Depositary
Shares ("ADS") of Vipshop Holdings Limited ("Vipshop" or the
"Company") (NYSE: VIPS) between March 22, 2021 and March 29, 2021,
inclusive (the "Class Period").
If you purchased or otherwise acquired Vipshop ADS during the Class
Period, you may move the Court for appointment as lead plaintiff by
no later than December 13, 2021. A lead plaintiff is a
representative party who acts on behalf of other class members in
directing the litigation. Your share of any recovery in the actions
will not be affected by your decision of whether to seek
appointment as lead plaintiff. You may retain Lieff Cabraser, or
other attorneys, as your counsel in the action.
Vipshop investors who wish to learn more about the litigation and
how to seek appointment as lead plaintiff should click here, or
text or email investorinfo@lchb.com, or call Sharon M. Lee of Lieff
Cabraser at 1-800-541-7358.
Background on the Vipshop Securities Class Litigation
The action alleges that, during the Class Period, defendants
Goldman Sachs Group Inc. and Morgan Stanley traded in Vipshop ADS
while in possession of material non-public information that
Archegos Capital Management ("Archegos"), a family office with $10
billion under management, failed (or was likely to fail) to meet a
margin call, requiring it to fully liquidate its position in
Vipshop. Defendants unloaded large block trades consisting of
shares of Archegos's doomed bets, including billions of dollars
worth of Vipshop securities on March 25, 2021, before the market
learned of Archegos's collapse. As a result of these insider sales,
defendants avoided billions of dollars in losses. Defendants knew,
or were reckless in not knowing, that they were prohibited from
trading while in possession of material, non-public information
about Archegos but disposed of their Vipshop shares to class
members anyway before the news about Archegos was revealed and the
price of Vipshop's shares plummeted.
About Lieff Cabraser
Lieff Cabraser Heimann & Bernstein, LLP, with offices in San
Francisco, New York, and Nashville, is a nationally recognized law
firm committed to advancing the rights of investors and promoting
corporate responsibility.
The National Law Journal has recognized Lieff Cabraser as one of
the nation's top plaintiffs' law firms for fourteen years. In
compiling the list, the National Law Journal examines recent
verdicts and settlements and looked for firms "representing the
best qualities of the plaintiffs' bar and that demonstrated unusual
dedication and creativity." Law360 has selected Lieff Cabraser as
one of the Top 50 law firms nationwide for litigation, highlighting
our firm's "laser focus" and noting that our firm routinely finds
itself "facing off against some of the largest and strongest
defense law firms in the world." Benchmark Litigation has named
Lieff Cabraser one of the "Top 10 Plaintiffs' Firms in America."
For more information about Lieff Cabraser and the firm's
representation of investors, please visit
https://www.lieffcabraser.com/.
This press release may be considered Attorney Advertising in some
jurisdictions under the applicable law and ethical rules. [GN]
VIVINT SOLAR: Stipulation to Amend Class Cert. Bid Deadlines Filed
------------------------------------------------------------------
In the class action lawsuit captioned as GERRIE DEKKER, KAREN
BARAJAS as executor of the Estate of Thompson Bryson, MARLENE
ROGERS, DANIEL THOMPSON, JAE CHONG, MARCI HULSEY, CINDY PIINI,
PHYLLIS RUNYON, GENNIE HILLIARD, and JUAN BAUTISTA, individually
and on behalf of all others similarly-situated, v. VIVINT SOLAR,
INC., VIVINT SOLAR HOLDINGS, INC., VIVINT SOLAR DEVELOPER, LLC, and
VIVINT SOLAR PROVIDER, LLC, DOES 1 through 50, inclusive, Case No.
3:19-cv-07918-WHA (N.D. Cal.), the Parties stipulate and ask the
Court to enter an order to amend deadlines for motion for class
certification as follows:
Scheduled Event Current Modified
Deadline Deadline
-- Motion for class Nov. 11, 2021 Dec. 2, 2021
certification
-- Opposition brief Dec. 2, 2021 Dec. 16, 2021
-- Reply brief Dec. 30, 2021 Dec. 23, 2021
-- Hearing date Jan. 6, 2022 Jan. 20, 2022
Vivint Solar is an American solar energy company headquartered in
Lehi, Utah. It is a residential solar provider that designs,
installs, and maintains photovoltaic systems.
A copy of the Parties' motion dated Nov. 2, 2021 is available from
PacerMonitor.com at https://bit.ly/3keMhW7 at no extra charge.[CC]
The Plaintiffs are represented by:
Matthew J. Matern, Esq.
Joshua D. Boxer, Esq.
Corey B. Bennett, Esq.
MATERN LAW GROUP, PC
1230 Rosecrans Avenue, Suite 200
Manhattan Beach, CA 90266
Telephone: (310) 531-1900
Facsimile: (310) 531-1901
E-mail: mmatern@maternlawgroup.com
jboxer@maternlawgroup.com
cbennett@maternlawgroup.com
The Defendants are represented by:
Fred Norton, Esq.
Bree Hann, Esq.
George C. Harris, Esq.
Esther Chang, Esq.
THE NORTON LAW FIRM PC
299 Third Street, Suite 200
Oakland, CA 94607
Telephone: (510) 906-4900
E-mail: fnorton@nortonlaw.com
bhann@nortonlaw.com
gharris@nortonlaw.com
echang@nortonlaw.com
VOLKSWAGEN AG: Faces Class Action Over "Voltswagen" Name-Change
---------------------------------------------------------------
David A. Wood, writing for CarComplaints.com, reports that a
Volkswagen "Voltswagen" name-change class action lawsuit is over
after a plaintiff allegedly didn't timely serve Volkswagen with the
summons and class action lawsuit.
The outcome of the lawsuit is another strange step that sent the
plaintiffs to court in the first place following VW's failed April
Fools' Day stunt.
According to the Volkswagen class action lawsuit, investors were
misled when Volkswagen said it was changing its name to
"Voltswagen" in honor of its move to electric vehicles.
VW plaintiff Gerald M. Montag says he purchased securities at
inflated prices because of VW's stunt when it published a test
press release announcing the new Voltswagen name. VW published the
document on its site on March 29, 2021, but the press release had
an April 29 date.
News organizations picked up the announcement even though VW
quickly deleted the press release from its website.
Then VW republished the press release on March 30, this time with
the correct date and entitled, "Voltswagen: A new name for a new
era of e-mobility." However, the release was removed from the site
later that day.
Even the Associated Press jumped on the false story:
"The Associated Press was repeatedly assured by Volkswagen that its
U.S. subsidiary planned a name change, and reported that
information, which we now know to be false. We have corrected our
story and published a new one based on the company's admission.
This and any deliberate release of false information hurts accurate
journalism and the public good." - Lauren Easton, AP company
spokeswoman
VW said there were no changes in stock prices, a view not held by
the investors who filed the class action lawsuit.
VW Class Action Lawsuit Dismissed
Judge Mark C. Scarsi appointed Betty Jo Pheiffer as lead plaintiff
on July 21, 2021, then ordered Pheiffer to show cause why the class
action lawsuit should not be dismissed for failure to complete
service on Volkswagen within 90 days of the filing of the lawsuit.
The plaintiff responded and the judge extended the time to complete
service. However, the judge says Pheiffer did not file proof of
service by the extended deadline.
"Pheiffer presents no explanation, let alone a showing of excusable
neglect, supporting her failure to complete service between the
time the Court extended the deadline to complete service and the
extended deadline. Through its orders to show cause, the Court
provided Pheiffer clear warnings that it expected compliance with
the deadline." - Judge Scarsi
The judge dismissed the VW class action lawsuit, without prejudice,
and told the clerk to close the case.
The VW class action lawsuit was filed in the U.S. District Court
for the Central District of California: Gerald M. Montag v.
Volkswagen AG, et al.
The plaintiff is represented by the Rosen Law Firm. [GN]
WAL-MART ASSOCIATES: Court Tosses Alvarado Class Status Bid
-----------------------------------------------------------
In the class action lawsuit captioned as CLAUDIA ALVARADO and on
behalf of all others similarly situated, v. WAL-MART ASSOCIATES,
INC., a Delaware corporation; SAM'S WEST, INC., an Arkansas
corporation; and DOES 1 through 50, inclusive, Case No.
2:20-cv-01926-AB-KK (C.D. Cal.), the Hon. Judge Andre Birotte Jr.
entered an order denying Plaintiff's motion for class certification
of:
"All non-exempt employees of Sam's Club stores in California
during the period of January 22, 2017 through the date of the
order granting class certification."
The Court finds that class certification is inappropriate because
Plaintiff has not established the degree of commonality required by
Rule 23(a) nor the predominance requirement under Rule 23(b)(3).
The Plaintiff brought this putative class action against Defendants
asserting failure to provide meal periods; failure to authorize and
permit rest breaks; failure to pay overtime wages; failure to
furnish accurate itemized wage statements; failure to indemnify
employees for necessary expenditures incurred in discharge of
duties; unfair and unlawful business practices; and penalties under
the private attorneys general act.
Walmart is an American multinational retail corporation that
operates a chain of hypermarkets, discount department stores, and
grocery stores from the United States, headquartered in
Bentonville, Arkansas.
A copy of the Court's order dated Nov. 3, 2021 is available from
PacerMonitor.com at https://bit.ly/3qt9AiK at no extra charge.[CC]
WALMART INC: Lebby Seeks to Postpone Class Status Bid Deadline
--------------------------------------------------------------
In the class action lawsuit captioned as DANIEL LEBBY, on behalf of
himself and others similarly situated, v. WALMART INC., Case No.
3:21-cv-01365-RDM (M.D. Pa.), the Plaintiff asks the Court to enter
an order, pursuant to Local Civil Rule 23.3, postponing the class
certification motion deadline until a future date to be established
in the Court's initial scheduling order.
Walmart is an American multinational retail corporation that
operates a chain of hypermarkets, discount department stores, and
grocery stores, headquartered in Bentonville, Arkansas.
A copy of the Plaintiff's motion dated Nov. 1, 2021 is available
from PacerMonitor.com at https://bit.ly/3bSFU64 at no extra
charge.[CC]
The Plaintiff is represented by:
Peter Winebrake, Esq.
WINEBRAKE & SANTILLO, LLC
715 Twining Road, Suite 211
Dresher, PA 19025
Telephone: (215) 884-2491
WEST VIRGINIA: Fain Granted Leave to File First Amended Complaint
-----------------------------------------------------------------
The U.S. District Court for the Southern District of West Virginia,
Huntington Division, grants the Plaintiffs leave to file their
first amended complaint in the lawsuit captioned CHRISTOPHER FAIN;
ZACHARY MARTELL; and BRIAN McNEMAR, individually and on behalf of
all others similarly situated, Plaintiffs v. WILLIAM CROUCH, in his
official capacity as Cabinet Secretary of the West Virginia
Department of Health and Human Resources; CYNTHIA BEANE, in her
official capacity as Commissioner for the West Virginia Bureau for
Medical Services; WEST VIRGINIA DEPARTMENT OF HEALTH AND HUMAN
RESOURCES, BUREAU FOR MEDICAL SERVICES; TED CHEATHAM, in his
official capacity as Director of the West Virginia Public Employees
Insurance Agency; and THE HEALTH PLAN OF WEST VIRGINIA, INC.,
Defendants, Case No. 3:20-0740 (S.D.W. Va.).
Pending before the Court is the Plaintiffs' Motion for Leave to
File First Amended Complaint and Amended Motion for Leave to File
First Amended Complaint. In their amendment, the Plaintiffs seek to
add two plaintiffs to this action who, like the Plaintiffs, seek to
challenge the state's exclusion of coverage for gender-confirming
care. Defendant Ted Cheatham's late response opposed this Motion.
Discussion
Courts have generally permitted the use of Rule 15 of the Federal
Rules of Procedure to add plaintiffs to a party.
The Plaintiffs here seek to add two plaintiffs to this action. One
putative Plaintiff, Ms. Shauntae Anderson, is a Medicaid
participant, and the other, Ms. Leanne James, is a public employee
and a Public Employees Insurance Agency (PEIA) member. The
Plaintiffs' class action Complaint alleges that the exclusion of
coverage for gender-confirming healthcare in West Virginia state
health plans violates the Equal Protection Clause, the Patient
Protection and Affordable Care Act, and the Medicaid Act. Ms.
Anderson's claims relate only to the Defendants involved in the
West Virginia Medicaid program, which does not apply to Defendant
Cheatham. Ms. James intends to challenge the exclusions for
gender-confirming care contained in a PEIA Preferred Provider
Benefits (PPB) Plan.
The Court finds that it is in the interest of justice to allow the
Plaintiffs to amend their Complaint to add Ms. Anderson and Ms.
James as Plaintiffs. These claims involve similar facts and will
raise questions of law and fact common to already named Plaintiffs.
Ms. Anderson's claims relate to her Medicaid Plan coverage and its
exclusion of coverage for gender-confirming surgery, just like
Plaintiff Christopher Fain's claims. Ms. James' claims relate to
the exclusion of gender-confirming coverage in a PEIA PPB Plan,
similar to Plaintiff Zachary Martell's claims relating to his HMO
Plan provided by The Health Plan.
Additionally, Ms. James' health plan and its exclusion for
gender-confirming treatments were described in the original
complaint. Further, the original Complaint includes a putative
"State Employee Health Plan Class" which explicitly includes all
persons enrolled in a State Employee Health Plan who are
transgender or seek gender-confirming care; the class is not
limited only to those enrolled in The Health Plan. Ms. James was
already a member of this class. The putative plaintiffs' claims are
essentially identical to claims already represented in this
action.
Defendant Cheatham opposes the amendment. He first argues that Rule
15 does not provide a mechanism to allow the court to add new
plaintiffs to the litigation. This assertion is untrue, District
Judge Robert C. Chambers holds.
The Fourth Circuit has explicitly ruled that plaintiffs may utilize
Rule 15 to request leave to amend their complaint to add
plaintiffs, Judge Chambers notes. Relying on this misconception,
the Defendant argues that the current Plaintiffs are not the
parties seeking to amend the complaint, but that the putative
plaintiffs, as non-parties, are the real persons seeking the
amendment. To support this position, the Defendant relies on Intown
Properties Management, Inc. v. Wheaton Van Lines, Inc., where
Intown filed a motion to amend a complaint to add itself as a party
to an action filed by its insurer.
In that case, it was clear that Intown was not a party to the
action between its insurer and the defendant, and, thus, could not
seek to amend the complaint in that action, Judge Chambers states.
But here, no external party sought to amend the Complaint; the
current Plaintiffs filed the motion, Judge Chambers points out. For
similar reasons, the Defendant's reliance on United States ex rel.
Little v. Triumph Gear System, Inc. is also misplaced, as that case
is distinguishable from the matter before the Court, Judge Chambers
holds.
Defendant Cheatham also argues that the correct procedural
mechanism to add new plaintiffs is a motion to intervene under Rule
24. But, as already noted, this Circuit has held that plaintiffs
may use Rule 15 to add new plaintiffs to an action.
Next, Defendant Cheatham alleges that adding these plaintiffs will
prejudice him, claiming that their addition will add new legal
theories to the case, will alter the scope of discovery, and will
alter the defenses raised by the Defendant. An amendment to a
complaint can be prejudicial when such amendment raises a new legal
theory that would require the gathering and analysis of facts not
already considered by the opposing party where the amendment is
offered shortly before or during trial, Judge Chambers states,
citing Johnson v. Oroweat Foods Co., 785 F.2d 503, 510 (4th Cir.
1986). Judge Chambers finds that that is not the case here.
Further, the Court noted, the putative plaintiffs add no new claims
of which Defendant Cheatham would not be aware of. Their claims
involve no new legal theories, as they are nearly identical to
claims already represented by existing Plaintiffs.
Defendant Cheatham also claims that Ms. James intends to bring a
Title VII claim to the action, which no other Plaintiff in the
action currently asserts. Ms. James' Title VII claim is pending
before the Equal Employment Opportunity Commission (EEOC), and the
amended Complaint explicitly states that Ms. James is not pursuing
a Title VII claim in this action while the claim is pending before
the EEOC.
Because the Court finds that the addition of these Plaintiffs will
not prejudice Defendant Cheatham, and that it is in the interest of
justice to allow the amendment, the Court grants Plaintiffs leave
to amend the Complaint.
Conclusion
For these reasons, the Court grants the Plaintiffs' Motion.
The Plaintiffs' first Motion for Leave to File First Amended
Complaint is dismissed as moot.
The Court directs the Clerk to send a copy of this Order and Notice
to counsel of record and any unrepresented parties.
A full-text copy of the Court's Memorandum Opinion and Order dated
Oct. 28, 2021, is available at https://tinyurl.com/2ej57h4w from
Leagle.com.
WHITE HOUSE: Rodden Sues Over Federal Employee Vaccine Mandate
--------------------------------------------------------------
JAMES RODDEN, ISAAC MCLAUGHLIN, GABRIEL ESCOTO, MICHELLE RUTH
MORTON, WADDIE BURT JONES, RYAN CHARLES BIGGERS, CAROLE LEANN
MEZZACAPO, EDWARD BRYAN SURGEON, SUSAN REYNOLDS, ROY KENNETH
EGBERT, and GEORGE GAMMON, on behalf of themselves and all others
similarly situated, Plaintiffs v. DR. ANTHONY FAUCI, Chief COVID
Response Director of the National Institute of Allergy and
Infectious Diseases, JEFFREY ZIENTS, Coordinator of the COVID-19
Response, NATALIE QUILLIAN, Deputy COVID-19 Response Coordinator,
DR. DAVID A. KESSLER, Chief Science Office of COVID Response, VICE
ADMIRAL DR. VIVEK MURTHY, Surgeon General of the U.S., ABBE GLUCK,
Special Counsel, EDUARDO CISNEROS, Director of Intergovernmental
Affairs, BEN WAKANA, Director of Strategic Communications and
Engagement, CLARKE HUMPHREY, Digital Director, DR. CYRUS SHAPAR,
Data Director, DR. BECHARA CHOUCAIR, Vaccinations Coordinator,
CAROLE JOHNSON, Testing Coordinator, TIM MANNING, Supply
Coordinator, DR. ROCHELLE WALENSKY, Director of the Centers for
Disease Control and Prevention, ROBIN CARNAHAN, Administrator of
the U.S. General Services Administration, KIRAN AHUJA, Director
U.S. Office of Personnel Management, DENIS MCDONOUGH, Secretary of
Veterans Affairs, DEANNE CRISWELL, Director Federal Emergency
Management Agency, L. ERIC PATTERSON, Director, Federal Protective
Service, SHALANDA YOUNG, Acting Director of the Office of
Management and Budget, JAMES M. MURRAY, Director U.S. SECRET
SERVICE, WHITE HOUSE COVID-19 RESPONSE TEAM, SAFER FEDERAL
WORKFORCE TASK FORCE, U.S. GENERAL SERVICES ADMINISTRATION, U.S.
OFFICE OF PERSONNEL MANAGEMENT, DEPARTMENT OF VETERANS AFFAIRS,
FEDERAL EMERGENCY MANAGEMENT AGENCY, FEDERAL PROTECTIVE SERVICE,
OFFICE OF MANAGEMENT AND BUDGET, UNITED STATES SECRET SERVICE, and
THE UNITED STATES OF AMERICA, Defendants, Case No. 3:21-cv-00317
(S.D. Tex., November 5, 2021) is a class action against the
Defendants for violations of the right to refuse unwanted and
medically unnecessary care, the unconstitutional conditions
doctrine and the Fifth Amendment's right to due process of law and
the equal protection component of the due process clause, and the
Administrative Procedure Act.
The Plaintiffs bring this class action to seek temporary and/or
preliminary injunctive relief to block the Executive Order 14,043
issued by President Joe Biden and carried out by the Federal Work
Force Task Force, which requires COVID-19 vaccination for all
federal employees, from continuing to operate pending the
resolution of this litigation on the merits. The Federal Employee
Vaccine Mandate requires employees to be fully vaccinated by
November 22, 2021. The deadlines for the first dose of Moderna and
Pfizer BioNTech vaccines have already passed and the Plaintiffs and
the Class cannot await the issuance of regulations or
agency-specific policies to come into compliance. Nor can they rely
upon a disciplinary grace period if they delay until November 8,
2021 to determine whether or not they can find a single-shot
Johnson & Johnson vaccine within a reasonable distance of their
home. The Plaintiffs have all already contracted and fully
recovered from COVID-19 and as a result, they possess naturally
acquired immunity. They assert that the Federal Employee Vaccine
Mandate violates both their constitutional and federal statutory
rights because it undermines their bodily integrity and autonomy
and conditions their employment on their willingness to take what
for them and those working with them is a medically unnecessary
vaccine.
White House Covid-19 Response Team is an ad hoc assemblage of about
16 high-ranking federal officials put in place to set federal
COVID-19 policy, located in Washington, D.C.
Safer Federal Workforce Task Force is an ad hoc assembly of federal
agencies and federal officials designed to set or implement
COVID-19 policy, located in Washington, D.C.
U.S. General Services Administration is a leader of the Safer
Federal Workforce Task Force, located in Washington, D.C.
U.S. Office Of Personnel Management is a leader of the Safer
Federal Workforce Task Force, located in Washington, D.C.
Department of Veterans Affairs is a member of the Safer Federal
Workforce Task Force, located in Washington, D.C.
Federal Emergency Management Agency is a member of the Safer
Federal Workforce Task Force, located in Washington, D.C.
Federal Protective Service is a member of the Safer Federal
Workforce Task Force, located in Washington, D.C.
Office of Management and Budget is a member of the Safer Federal
Workforce Task Force, located in Washington, D.C.
United States Secret Service is a member of the Safer Federal
Workforce Task Force, located in Washington, D.C. [BN]
The Plaintiffs are represented by:
John J. Vecchione, Esq.
Jenin Younes, Esq.
Harriet Hageman, Esq.
NEW CIVIL LIBERTIES ALLIANCE
1225 19th Street NW, Suite 450
Washington, DC 20036
Telephone: (202) 869-5210
Facsimile: (202) 869-5238
E-mail: John.Vecchione@ncla.legal
Jenin.Younes@ncla.legal
Harriet.Hageman@ncla.legal
- and –
Robert Henneke, Esq.
TEXAS PUBLIC POLICY FOUNDATION
901 Congress Avenue
Austin, TX 78701
Telephone: (512) 472-2700
Facsimile: (512) 472-2728
E-mail: rhenneke@texaspolicy.com
WILSON LOGISTICS: Phase I Class Cert. Scheduling Order Entered
--------------------------------------------------------------
In the class action lawsuit captioned as JOSEPH L. MOORE, On behalf
of himself and all others similarly situated, v. WILSON LOGISTICS,
INC., Case No. 6:21-cv-03212-BP (W.D. Mo.), the Hon. Judge Beth
Phillips entered scheduling order regarding Phase I Class
Certification as follows:
1. Discovery will proceed in two phases. The first phase will
include discovery of all issues related to Plaintiff's
motion for conditional certification. Phase II discovery
will involve discovery relating to alleged damages and
completion of any other merits issues.
2. Any motion to join additional parties or amend the
pleadings shall be filed on or before January 15, 2022.
3. All Phase I discovery authorized by the Federal Rules of
Civil Procedure shall be completed on or before April 15,
2022.
4. Expert Designation ddeadlines. In the event Plaintiff or
Defendant believe expert witnesses are needed in relation
to the certification briefing, such experts shall be
disclosed on or before March 1, 2022. Rebuttal experts
shall be disclosed on or before March 30, 2022.
5. The Plaintiff's motion for conditional certification of a
collective and/or class action shall be filed on or before
April 15, 2022. Defendant's response to plaintiff's motion
to certify a class shall be due 30 days after the motion
for class certification is filed. Plaintiff's reply shall
be due 14 dates thereafter.
6. The parties shall file a proposed scheduling order for
Phase II discovery at a later date to be determined by
future order of the Court.
Wilson Logistics was founded in 1998. The Company's line of
business includes the arranging of transportation of freight and
cargo.
A copy of the Court's order dated Nov. 1, 2021 is available from
PacerMonitor.com at https://bit.ly/307jLyA at no extra charge.[CC]
WRAP TECHNOLOGIES: Bid to Junk BolaWrap Related Suit Pending
------------------------------------------------------------
Wrap Technologies, Inc. said in its Form 10-Q Report filed with the
Securities and Exchange Commission on October 28, 2021, for the
quarterly period ended September 30, 2021, that the motion to
dismiss filed in the consolidated putative class action suit
entitled, In re Wrap Technologies, Inc. Securities Exchange Act
Litigation, Case No. 20-8760-DMG (PVCx), is pending.
On September 23, 2020, Carone Cobden filed a putative class action
complaint against the Company, former Chief Executive Officer David
Norris, Chief Financial Officer, James A. Barnes, and President,
Thomas Smith in the United States District Court for the Central
District of California, docketed as Case No.
2-20-cv-08760-DMG-PVCx.
The Cobden Complaint alleges that the named defendants, in their
capacities as officers of the Company, knowingly made false or
misleading statements or omissions regarding trials of the
Company's BolaWrap product conducted by the Los Angeles Police
Department (the "BolaWrap Pilot Program").
The Cobden Complaint also alleges that the conduct of the named
defendants artificially inflated the price of the Company's traded
securities, and that the disclosure of certain adverse information
to the public led to a decline in the market value of the Company's
securities.
The Cobden Complaint further alleges violations of Sections 10(b)
and 20(a) of the Exchange Act, and Rule 10b-5 promulgated
thereunder, and defines the class period as July 31, 2020 through
September 23, 2020.
On October 1, 2020, Joseph Mercurio filed a second putative class
action complaint against the Company, Norris, Smith, and Barnes in
the same court, which contains substantially the same factual
allegations and legal claims as set forth in the Cobden Complaint,
and is docketed as Case No. 2-20-cv-09030-DMG-PVCx.
On October 15, 2020, Paula Earley filed a third putative class
action complaint against the Company, Smith, Norris, Barnes, Chief
Strategy Officer Mike Rothans, and former Chief Executive Officer,
Marc Thomas in the same court, which contains many of the same
factual allegations and legal claims as set forth in the Cobden and
Mercurio Complaints, but defines the class period as April 29, 2020
through September 23, 2020, and alleges additional false or
misleading statements in connection with BolaWrap and the BolaWrap
Pilot Program. The Earley Complaint is docketed as Case No.
2-20-cv-09444-DMG-PVCx.
On November 3, 2020, the Hon. Dolly M. Gee consolidated the three
above-mentioned cases under the caption In re Wrap Technologies,
Inc. Securities Exchange Act Litigation, Case No. 20-8760-DMG
(PVCx).
On January 7, 2021, the Court appointed a lead plaintiff in the
Securities Action, who designated its attorneys as lead counsel. On
January 21, 2021, Judge Gee ordered that a consolidated amended
complaint be filed in the Securities Action on or before March 12,
2021, with defendants' motion to dismiss to be filed on or before
April 26, 2021, and a hearing on the motion to dismiss to be held
on July 23, 2021.
On March 12, 2021, lead plaintiff filed an amended complaint,
naming the Company, Norris, Thomas, Smith, and Barnes as
defendants.
Those defendants jointly filed a motion to dismiss on April 26,
2021. Briefing on the motion to dismiss is now complete, and the
motion is currently under submission before Judge Gee.
The Company believes that the Securities Action is without merit
and will continue to vigorously defend against the claims raised
therein.
Wrap Technologies, Inc. is a global public safety technology and
services company organized in March 2016 delivering modern policing
solutions to law enforcement and security personnel. The company is
based in Tempe, Arizona.
YALLA GROUP: Shareholder Class Action Lawsuit Pending
-----------------------------------------------------
Filipe Pacheco, Yueqi Yang and Layan Odeh, writing for Bloomberg
News, report that it was hailed as the first tech unicorn from the
United Arab Emirates in its debut on the New York Stock Exchange
and touted as the "Clubhouse of the Middle East."
But these days, Yalla Group Ltd., a voice-chat startup based out of
Dubai, might be earning a less flattering label: stock-market
bust.
After a fivefold surge in the months following its initial public
offering last year, Yalla -- a Chinese-backed social network based
in the United Arab Emirates that means "Let's Go" in Arabic -- has
given up all its gains and then some. Since peaking at over $40 in
February, Yalla has lost more than 80% of its market value. Its
American depositary receipts, which debuted at $7.50, are now
consistently below $7 and hit an all-time low of $6.26.
This is quite a comedown for a company once feted by Dubai's ruler
Sheikh Mohammed bin Rashid Al Maktoum, drew comparisons to the
buzzy Silicon Valley startup Clubhouse and even garnered a small
stake from billionaire Steve Cohen's hedge fund. But as the once
red-hot, live-audio chatroom space cools, the company's spectacular
growth has come under scrutiny.
Shorts Circling
In recent months, short sellers Swan Street and Gotham City
Research targeted Yalla, questioning the social-media app's user
numbers. Following Yalla's quarterly results in August, which sent
the stock reeling 19% the next day, a shareholder suit was filed
alleging Yalla and Chief Executive Tao Yang made "false and
misleading statements."
"We caution that investors should be wary of Yalla's risks," said
Nirgunan Tiruchelvam, the Singapore-based head of consumer sector
equity research at Tellimer. While Tiruchelvam doesn't have a
formal recommendation on the stock, he wrote in a Sept. 16 note
that the allegations show "the risk of trusting non-financial
metrics."
"It doesn't mean that all the allegations from the short sellers
are correct," he said in an email to Bloomberg News. "But it means
there are a lot of uncertainties."
Yalla spokesperson Kerry Gao refuted the short sellers'
allegations, saying in a statement in May their reports "contain
numerous errors and distorted, misleading and unsubstantiated
claims." In response to follow-up questions by Bloomberg News, she
reiterated the company's position. Gao also said a recent
shareholder class action suit "largely repeats the false
allegations" of the short sellers.
"We believe the complaint is unfounded and without merit," Gao
said.
Buzz Wears Off
When Yalla debuted on the Big Board in September 2020, things could
hardly have been more different. The company's main shareholders
are Chinese, including directors and executive officers, with a
complex ownership structure using several offshore entities, but
the operations are in the UAE.
Buoyed by a $1 billion valuation and the enthusiasm for voice chat,
which before long would be embodied by the Clubhouse frenzy,
Yalla's ADRs more than doubled by December. Two months later they
doubled again, lifting them to a high of $41.35 on Feb. 11 and
pushing Yalla's market value close to $6 billion.
Then, Yalla's stock-market fortunes began to turn. The initial buzz
wore off and competition in audio chats began to heat up as
companies like Twitter entered the arena. China's crackdown on its
U.S.-listed companies didn't help either. By May, Yalla was already
down roughly 50% from its peak when Swan Street and Gotham City
disclosed that they were shorting Yalla.
Swan Street, founded this year by an anonymous former Wall Street
analyst, according to its website, said in its 31-page report that
Yalla's numbers didn't square with its own "channel checks" and
that usage metrics such as its number of monthly average users were
inflated by bots. On its Twitter feed, Gotham City compared Yalla
to Luckin Coffee Inc., the Chinese company that went public to much
fanfare, but filed for bankruptcy in the U.S. after saying more
than a quarter's worth of business may have been faked. Gotham City
is still short Yalla, founder Daniel Yu wrote in an email.
(Swan Street declined multiple requests to comment on the record.)
Yalla responded by saying it "has not placed any robots into any of
its chatrooms or otherwise manipulated its MAU or other operating
or financial data" and announced a $150 million share buyback --
just over the amount it raised in its IPO.
Debating Numbers
In its earnings release in August, Yalla said its monthly average
users (MAUs) reached a record 22.1 million at the end of the second
quarter. While revenue more than doubled to $66.6 million from a
year ago, the figure was at the low end of Yalla's own guidance,
deepening its ADR selloff.
An analysis for Bloomberg by the mobile app researcher Apptopia
showed that all Yalla apps combined had 5.41 million monthly
average users at the end of June, about a quarter of the company's
reported figure. Apptopia gathers data to assess the performance of
apps and counts Google, Microsoft, Facebook and Andreessen Horowitz
among its customers.
And despite the reported surge in users, there's been no
corresponding increase in internet searches for the terms "Yalla
chat" (both in English and Arabic) and "Yalla app," based on Google
Trends search metrics.
Yalla's numbers "reflect something like the phenomenal growth
enjoyed by Clubhouse in its first year of beta-test operation,"
said David Tuffley, a senior lecturer in applied ethics and
cybersecurity at Griffith University in Queensland, Australia. "I'm
skeptical."
Four days after Yalla's reported second-quarter earnings,
Jeffrey Crass, a retail investor represented by Scott + Scott
Attorneys at Law, a law firm for shareholder fraud suits, sued
Yalla and its CEO, claiming they misled investors about its
financial metrics and failed to disclose the company overstated its
user metrics and revenue. Seven other investors filed motions to
serve as lead plaintiffs of the action and represent a class of
similarly situated shareholders who suffered losses from Yalla's
ADRs.
Gao said Apptopia's estimates are "inconsistent with the financial
and operating data we collected from our own business operation and
audited by our auditor." She added that Google search trends don't
accurately reflect the company's growth and popularity. Yalla's
interactive community culture has created a strong word-of-mouth
effect and its growth has benefited from the rise of online social
networking during the pandemic, as well as advertising on Facebook,
Gao said. She also reiterated that the lawsuit is without merit.
User Questions
Whatever the case, some investors have already decided to throw in
the towel. Cohen's Point72 Asset Management, a top outside holder
early in the year, sold out of its 520,000 ADR position, a
regulatory filing as of June 30 showed. The firm declined to
comment.
The ADRs have closed below their IPO price for 20 consecutive
sessions. Since Yalla's peak in February, the slump has wiped out
around $5 billion of value and pushed its market capitalization
below $930 million.
On Oct. 17, Morgan Stanley analysts led by Omar Sheikh cut his
price target for the company's ADRs to $7 from $16. In a research
note, he wrote that the Morgan Stanley AlphaWise's survey of social
media users in one of Yalla's biggest markets, Saudi Arabia,
suggests "low awareness and usage of Yalla's apps, which reduces
our confidence in the company's ability to achieve high levels of
penetration long term."
A recent visit to the app showed users chatting in real-time in
various audio rooms, although it's hard to know who they are or, as
short sellers have suggested, if there are real people behind all
of those accounts. Bloomberg contacted a number of people on
Yalla's Facebook page for its popular online board game called
Ludo, which is similar to Parcheesi, and they said they mainly use
Yalla's app for chatting while playing games like dominoes or
Ludo.
Gao said Yalla collaborates with a number of social media
influencers to promote its platform, including TV broadcasters
Lutfi Al Zoabi and Fadia Al-Taweel. Zoabi said he does a daily
sports segment that's broadcast on Yalla's platform. His wife,
Sally Assad, worked at Yalla but is no longer employed there,
according to her LinkedIn profile. Al-Taweel didn't respond to
requests for comment.
However, it hasn't been easy to independently find prominent people
who use Yalla's services or are aware of them. Bloomberg News spoke
to more than 15 UAE tech entrepreneurs, specialists and influencers
over the past few months, none of whom use Yalla apps or know
anyone who does. Many had never even heard of it.
One of them was Lana Al Beik, a 26-year-old model who's a popular
social-media influencer living in Yalla's home base of Dubai. She
has 56,600 Instagram followers and used the Clubhouse voice-chat
app when it first started. While pursuing of a master's degree in
communications, Al Beik said she did a significant amount of
research on local startups as part of her studies. Yalla never came
up.
"We spoke to people from major players like Google," she said. "We
were talking about such companies all the time. But I never heard
of Yalla." [GN]
[*] Bill to Prevent Excessive Litigation Funders' Fees Launched
---------------------------------------------------------------
InsuranceNews.com.au reports that the Federal Government has
introduced legislation into Parliament that aims to prevent
litigation funders charging excessive fees that are to the
detriment of class action members.
Courts will be empowered to approve or vary the method for
distributing claim proceeds to class action non-members, to ensure
distributions are fair and reasonable, Treasurer
Josh Frydenberg and Attorney-General Michaelia Cash said.
The bill establishes a "rebuttable presumption" that the
distribution of proceeds is not fair and reasonable if more than 30
per cent is to be paid to funders and lawyers.
In other changes, plaintiffs will have to consent to becoming
members of a litigation funding scheme before fees or commissions
can be imposed, which the Government says will encourage "book
building" and genuine support from participants.
The legislation, released in draft form at the end of October for
consultation, has been opposed by the Association of Litigation
Funders of Australia and law firms such as Maurice Blackburn.
But an increase in class action costs has driven escalating
directors' and officers' premiums in recent years and reforms have
been welcomed by the insurance sector.
The Government says the legislation responds to Parliamentary Joint
Committee on Corporations and Financial Services recommendations.
"These reforms, together with previous changes to require
litigation funders to hold an Australian Financial Services Licence
and comply with the managed investment scheme regime, demonstrate
the Morrison Government's commitment to ensuring that, when it
comes to class actions, the interests of class members come first,"
a statement from Mr Frydenberg and Ms Cash says. [GN]
[*] Junior Doctors Sue Over Excessive Hours, Underpayment
---------------------------------------------------------
Donna Lu, writing for The Guardian, reports that in a busy
Melbourne hospital, Paul arrives at work to dozens of patients in
the waiting room. The junior doctor is completing a rotation in the
emergency department and says morale has plummeted with staffing
shortages and huge caseloads.
"No one wants to be at work at all," he says. Several of his
colleagues have quit, and people are calling in sick for their
shifts more often. Paul is sent up to 10 messages a day about
shifts that need to be filled within the health service, to be paid
at "crisis rates".
"I desperately want to quit. The combination of last year and this
year is just exhausting," he says. "You'll start a night shift and
you have nine or 10 hours of wait time and like 40 people waiting
to be seen. It's like this massive wall of work that you know
you're not going to get through, even if everyone works at twice
the pace."
Simple comforts that once eased the stress of chaotic shifts, like
sharing a meal with a colleague, have fallen by the wayside. "You
can't even recognise your co-workers if you walk past each other in
the street, because [at work] you've got an N95 and a face shield,"
Paul says. "You end up just getting really burnt out and really
tired."
An already strained system
Prof Samuel Harvey, a psychiatrist and deputy director of the Black
Dog Institute, says Covid-19 has put additional pressure on a
health system that didn't have much spare capacity in the first
place.
Even before the pandemic began, more than half of doctors were
working long hours that put them at risk of clinical fatigue.
Medical professionals have a higher suicide risk than the general
population, and a recent review led by Harvey, published in The
Lancet, found between a quarter and a third of doctors report
significant mental ill-health in their early years of training.
"Many of us have been aware of [mental health issues in doctors]
for a while, but I think Covid-19 has brought it into sharper
focus," Harvey says.
Historically, there is stigma associated with reporting mental
health issues: a BeyondBlue survey of doctors and medical students
previously found that 40% said they judged peers with a history of
mental health disorders as "less competent".
Junior doctors -- those in training for specialist accreditation,
which can take up to a decade -- report higher levels of distress
than their senior counterparts, says Katherine Petrie, also of the
Black Dog Institute. A combination of long working hours, studying
for exams on top of full-time work, taking on extra research
projects, and the competitive pressure of getting accepted on to
specialist training programs creates a "perfect storm" for mental
distress, she says.
A study co-authored by Petrie, Harvey and their colleagues prior to
the pandemic found that junior doctors in Australia worked an
average of 50 hours a week. One in four reported working more than
55 hours in an average week, which was associated with a doubling
in the risk of common mental health problems and suicidal
ideation.
"There was such stress on the resources and the staffing before
Covid," Petrie says.
AI rostering seeks improvements
Reduced total working hours and better rostering systems have been
floated as options to alleviate these crippling pressures.
Prof Mark Wallace at Monash University says it is unlikely,
however, that hospitals will be open to systems-wide changes while
struggling with Covid. "Just when you need the most optimisation,
the most management of resources, is whenever everything's under
pressure and nobody's got any time to think about it," he says.
Advertisement
Wallace has been involved in developing an AI-powered rostering
system, known as AlertSafe, that takes into account how fatigue
levels increase over time, as well as the effect of circadian
rhythms and working at night. He is in discussions to trial the
system in Victorian hospitals.
"The way fatigue builds up over a long time can depend on shift
patterns," he says, adding that studies of similar rostering
systems overseas have previously found a 15% drop in medical
incidents by minimising staff fatigue.
Despite the evidence, it has been "very difficult" to implement the
rostering system in hospitals, even when there has been union and
senior management support, Wallace says. "It quickly falls back
into how things used to work before."
That means long hours and overtime work in a system which risks
jeopardising fatigued doctors and their patients.
In a 2021 Hospital Health Check report, released by the Victorian
branch of the Australian Medical Association, 47% of training
doctors said they had made a clinical error due to fatigue, while
the same percentage said they were never paid for unrostered
overtime.
Bree, a junior doctor currently working in a stroke unit at a
Melbourne hospital, describes it as "a thankless job with
consistent abuse".
Some of the stroke team has been seconded to Covid wards, causing
staffing shortages. "The other weekend there were two people
covering 75 patients," Bree says.
While her officially rostered hours have not been excessive, she
says she has worked "plenty of overtime" updating patients'
families on their conditions, adding: "They 'forgot' to roster
someone on stroke next week and are trying to get us to work
16-hour shifts to cover them."
Bree has tried escalating her concerns multiple times. "All I got
was a 10 minute 'check-in chat' with administration and a request
to 'check-in again' at the end of the [three-month] rotation."
Allegations of systemic underpayment are common: in the past year,
five class actions have been brought by thousands of junior doctors
in Victoria. In New South Wales, a similar class action is under
way, with more than 20,000 training doctors claiming unsafe
excessive hours and underpayment.
Hayden Stephens, a lawyer representing the claimants in both
states, says the cases are motivated by a need to address the
dangerous effects of excessive working hours and clinical fatigue
on patient care.
"A common theme is not just their own welfare but the genuine
concerns they have in relation to their patients," he says. "It's
really out of frustration . . . that they've had to resort to legal
process to embark on cultural change in their own workplaces."
Stephens is currently investigating similar actions for junior
doctors in the Australian Capital Territory and South Australia,
though no claims have yet been filed.
Dr Anthony Llewellyn, who provides career support to trainee
doctors, says bullying of junior doctors is also rife, calling it
"an international problem in medical culture". In a 2018 survey he
conducted of first - and second-year doctors in NSW, more than half
of respondents reported being bullied, and one in six said they had
experienced sexual harassment.
Of those who had experienced bullying or harassment, 40% chose not
to speak out, says Llewellyn. "When they did choose to take action,
most of them reported that the action was not positive for them."
None of the doctors who shared their personal experiences with
Guardian Australia were comfortable being identified by their real
names.
Majority fear burnout
As states begin to reopen and significant numbers of Covid patients
are admitted to hospital, the strain on an already fatigued
workforce is now becoming clearer.
The Royal Australasian College of Physicians, which represents
28,000 specialists and trainees in 33 medical specialities,
conducted a survey of its members in September and October.
Reported for the first time by Guardian Australia here, the survey
found significant levels of distress among doctors: 87% of
respondents said they were concerned about staff burnout, while 76%
were worried about an increase in Covid-19 hospital admissions.
"There have been industrial issues associated with the demand on
medical staff, meaning longer working hours, out-of-scope
activities that medical staff have been asked to do," says Prof
John Wilson, the president of RACP. "It also means that leave
arrangements have unexpectedly been altered or could not be taken
as promised."
"The current environment is leading people to look for escape
options," Wilson says.
The college believes that without additional resources, the health
system will not cope with the current level of demand. Wilson is
calling upon the federal government to release modelling to help
medical colleges "plan and also advise on distribution of workforce
and training of new medical specialists".
Systemic problems recognised
A potential upside of the Covid pandemic is the attention it has
brought to the mental health of doctors, Harvey says. As an
example, he cites The Essential Network, a federally funded mental
health service for healthcare workers, which launched last year.
"We've now moved to a point where almost everyone is saying: we
agree, the current system is not doing enough to protect the next
generation of doctors moving through," Harvey says. Llewellyn
agrees, saying there is now an acknowledgement within the medical
community that giving junior doctors "resilience training" to
manage workplace stress is not an adequate solution to the
problem.
At the end of the day, says Monash University's Harvey, "if you're
going to try and find ways to have junior doctors . . . work less
severe hours, then there's going to be a financial implication for
us as a society."
"We as mental health professionals would say that's the price we
have to [pay], because we can't keep on operating in a system where
so many junior doctors become unwell." [GN]
*********
S U B S C R I P T I O N I N F O R M A T I O N
Class Action Reporter is a daily newsletter, co-published by
Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania,
USA, and Beard Group, Inc., Washington, D.C., USA. Rousel Elaine T.
Fernandez, Joy A. Agravante, Psyche A. Castillon, Julie Anne L.
Toledo, Christopher G. Patalinghug, and Peter A. Chapman, Editors.
Copyright 2021. All rights reserved. ISSN 1525-2272.
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